United States Court of Appeals

For the Eighth Circuit

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No. 12-3411

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

James W. Hendrix

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: April 8, 2013

 Filed: June 28, 2013

[Published]

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Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

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PER CURIAM.

James W. Hendrix entered into a plea agreement and pleaded guilty to one

count of manufacturing fifty grams or more of a mixture or substance containing a

detectable amount of methamphetamine. 21 U.S.C. §§ 841(a)(1) & (b)(1)(b). His

plea agreement tentatively calculated his offense level as 23 and his criminal history
as Category VI. It also stated that Hendrix might be subject to the career-offender

Guidelines. The plea agreement contained an appeal waiver that waived all "nonjurisdictional" and "non-sentencing issues" and, "[i]n the event the Court . . . accepts

the U.S. Sentencing Guidelines Total Offense Level agreed to herein," "all sentencing

issues[.]" The waiver preserved Hendrix's right to appeal the sentencing issue of

"Criminal History." 

Subsequently, a presentence investigation report recommended career-offender

status, and neither Hendrix nor the government objected to the report. Under the

career-offender Guidelines, Hendrix's advisory range was 188–235 months'

imprisonment. Without application of the career-offender Guidelines, his sentencing

range would have been 92–115 months' imprisonment. The district court1

 determined

that Hendrix was subject to the career-offender Guidelines. At sentencing, Hendrix

argued that the district court should vary downwardly from the career-offender

advisory range due to his age (64), a multi-decade battle with drug addiction, and

various medical issues. He also argued that a variance was appropriate because his

criminal history could be explained by his long-term drug addiction and was, in

essence, overstated. He did not actually challenge the career-offender determination.

The district court imposed a bottom-of-the-range sentence of 188 months,

noting that it had received Hendrix's arguments requesting a variance. In doing so,

the district court expressly discussed several of the sentencing factors contained in 18

U.S.C. § 3553(a), noted that several of Hendrix's prior convictions were for drug

offenses, emphasized that Hendrix had two prior convictions for crimes of violence,

and noted that the present offense occurred when Hendrix was under state supervision. 

The court recommended drug treatment programs and imposed conditions of

supervised release specifically tailored to Hendrix's criminal history and long-standing

1

The Honorable Jean C. Hamilton, United States District Judge for the Eastern

District of Missouri.

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drug abuse. Finally, the court ordered his sentence to run consecutive to a three-year

state sentence that had been imposed for parole violations stemming from the present

offense conduct.

Hendrix appeals the substantive reasonableness of his sentence, arguing that the

court should have granted a variance and should have ordered his sentence to run

concurrently or partially concurrently with his state sentence. He also argues that the

court inadequately demonstrated its consideration of the 18 U.S.C. § 3553(a) factors. 

The government argues that the appeal waiver precludes these arguments and, in the

alternative, that the sentence is substantively reasonable and adequately explained. 

Hendrix counters that the district court did not sentence him according to "the U.S.

Sentencing Guidelines Total Offense Level agreed to" in the plea agreement, which

he characterizes as Offense Level 23. As a result, he concludes that he is not bound

by his waiver of the right to appeal sentencing issues. He asserts in the alternative that

his arguments concerning substantive reasonableness are preserved as appealable

"Criminal History" issues.

We need not address the scope of Hendrix's appeal waiver because, even if his

arguments fall outside his waiver, he is not entitled to relief. We deem the withinGuidelines-range sentence presumptively reasonable on appeal, and Hendrix has not

met his burden of overcoming that presumption. See United States v. Peck, 496 F.3d

885, 891 (8th Cir. 2007) (describing the presumption and allocation of the burden of

rebuttal). He presents reasonable arguments in support of his position relying upon

various § 3553(a) factors. His arguments demonstrate that a different sentence clearly

would have been reasonable. They do not, however, demonstrate that the sentence

imposed is unreasonable. The district court elected to emphasize the violent nature

of some of Hendrix's prior offenses, the serious nature of the present offense, and the

fact that he committed the present offense while under state supervision. Exercising

discretion to emphasize these facts, rather than facts that might support a more lenient

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sentence, was not an abuse of discretion. See United States v. Ozmon, 713 F.3d 474,

476 (8th Cir. 2013) (standard of review).

Further, the sentencing record as a whole adequately demonstrates that the

district court considered the § 3553(a) factors. United States v. Perkins, 526 F.3d

1107, 1110–11 (8th Cir. 2008) (stating that the reviewing court must consider "the

entire sentencing record, not merely the district court's statements at the hearing"). 

The district court's comments and its focus on drug-abuse treatment in the overall

sentence, including the conditions of release, demonstrate that the district court was

aware of and considered the § 3553(a) factors and the issues Hendrix raised below. 

United States v. Roberson, 517 F.3d 990, 994 (8th Cir. 2008) ("The appropriate length

of the statement . . . may be relatively brief if the district court rests its decision on the

Sentencing Commission's reasoning and 'decides simply to apply the Guidelines to a

particular case.'" (quoting Rita v. United States, 551 U.S. 338, 356 (2007))). 

We affirm the judgment of the district court.

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