United States Court of Appeals

For the Eighth Circuit

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No. 16-1495

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Galvin Henderson, also known as Cheeseburger, also known as Cheese

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: September 19, 2016

 Filed: October 25, 2016

[Unpublished]

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Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.

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PER CURIAM.

Galvin Henderson appeals from the sentence of twelve months' imprisonment
that the district court imposed after finding him guilty of numerous violations of his

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supervised release conditions. Henderson maintains that the district court gave

inadequate consideration to the factors set out in 18 U.S.C. § 3553(a) and that it

abused its discretion in arriving at the ultimate sentence. 

Because Henderson did not object at his revocation hearing that the district

court had paid insufficient attention to 28 U.S.C. § 3553(a) in sentencing him, we

review his first contention for plain error. United States v. Perkins, 526 F.3d 1107,

1111 (8th Cir. 2008). In fixing its sentence, the district court specifically noted that

it had considered "the factors listed in 18 U.S.C. 3553(a)" as the law requires. We

have observed in these kinds of cases that we presume that district judges know the

law and understand their duty to consider all of the § 3553(a) factors, United States

v. Battiest, 553 F.3d 1132, 1136 (8th Cir. 2009), and here we do not even have to

resort to the presumption because the district court said directly that it had complied

with its legal obligations. The sentence, moreover, was within the applicable

guidelines range of seven to thirteen months' imprisonment, and in such

circumstances little explanation of the reasons for the sentence is required because

it is likely that the district court rested its decision on the Sentencing Commission's

own reasoning that the guidelines sentence was proper. Rita v. United States, 551

U.S. 338, 356–57 (2007). There is no error here, much less plain error.

Henderson's assertion that the district court's sentence was unreasonable

because it abused its discretion in fixing it is equally unavailing. It is true that the

district court recommended that Henderson participate in nonresidential substance

abuse and mental health treatment during his incarceration, and, as Henderson notes,

the Supreme Court has held that a sentencing court may not impose or lengthen a

sentence to promote a defendant's rehabilitation. Tapia v. United States, 564 U.S.

The Honorable James M. Moody Jr., United States District Judge for the

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Eastern District of Arkansas. 

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319, 321 (2011). But nothing in the present record supports an inference that the

district court did that here: It simply recommended treatment while Henderson was

serving the term of imprisonment it imposed. The Tapia court explicitly permitted a

sentencing court to "urge the BOP to place an offender in a prison treatment

program," which is all that happened in the present case. There was no abuse of

discretion.

Affirmed.

KELLY, Circuit Judge, concurring.

“A district court need not mechanically list every § 3553(a) considerationwhen

sentencing a defendant upon revocation of supervised release.” United States v.

White Face, 383 F.3d 733, 740 (8th Cir. 2004) (citation omitted). But, “evidence that

the court has considered the relevant matters and that some reason be stated for its

decision” is required. Id.; see also Gall v. United States, 552 U.S. 38, 51 (2007)

(procedural error includes “failing to consider the § 3553(a) factors” and “failing to

adequately explain the chosen sentence”). In this case, the district court provided the

following explanation for its sentencing decision: “After consideration of the factors

listed in 18 U.S.C. 3553(a), it’s the order of the Court that Mr. Henderson shall be

committed to the custody of the Bureau of Prisons for 12 months with no supervised

release to follow.” Of course, “[t]he appropriateness of brevity orlength, conciseness

or detail, when to write, what to say, depends upon circumstances.” Rita v. United

States, 551 U.S. 338, 356 (2007). Here, Henderson admitted the violations, neither

party presented evidence, and the hearing lasted approximately ten minutes. Yet,

while the parties agreed on the applicable advisory sentencing guideline range, they

requested different outcomes: Henderson asked for a modification of his term of

supervised release to include a stay at a halfway house, and the government asked for

a within-guideline-range sentence with no supervision to follow.

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“We presume that‘district judges know the law and understand their obligation

to consider all of the § 3553(a) factors,’” United States v. Battiest, 553 F.3d 1132,

1136 (8th Cir. 2009) (quoting United States v. Gray, 533 F.3d 942, 943 (8th Cir.

2008)), and we do so with good reason. However, there must be sufficient evidence

of that consideration on the record for appellate review. See, e.g., Rita, 551 U.S. at

344–46 (court actively questioned defendant about the reasons for his request for

downward departure before imposing sentence); United States v. Johnson, 827 F.3d

740, 745 (8th Cir. 2016) (court reviewed past sentences and commented on their

effectiveness prior to sentencing); United States v. Thunder, 553 F.3d 605, 608 (8th

Cir. 2009) (sufficient discussion when court mentioned general § 3553(a) requirement

and recited some of defendant’s history and circumstances of his offense); United

States v. Perkins, 526 F.3d 1107, 1110–11 (8th Cir. 2008) (explanation that “record

speaks for itself” sufficient when district court imposed both defendant’s original

sentence and his revocation sentence). Because I believe the explanation provided

in this case was insufficient, I would find that the district court made a procedural

error in imposing Henderson’s sentence.

Neither party asked the district court for a more detailed assessment of the

statutory factors or a more thorough explanation for the sentence imposed, so we

review the district court’s sentence for plain error. Applying plain error review,

Henderson has failed to demonstrate that this error affected his substantial rights. See

United States v. Franklin, 397 F.3d 604, 607 (8th Cir. 2005). Because Henderson has

made no such showing, I concur in the court’s judgment.

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