# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 12-3411

___________________________ United States of America
lllllllllllllllllllllPlaintiff - Appellee

v.
James W. Hendrix
lllllllllllllllllllllDefendant - Appellant

____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis

____________ Submitted: April 8, 2013 Filed: June 28, 2013 [Published]

____________ Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

____________

PER CURIAM.
James W. Hendrix entered into a pl ea 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 offe nse level as 23 and his criminal historyas Category VI. It also stated that He ndrix 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 pres erved Hendrix's right to appeal the sentencing issue of "Criminal History."
Subsequently, a presentence investig ation report recommended career-offender status, and neither Hendrix nor the governme nt objected to the report. Under the career-offender Guidelines, Hendrix's advisory range was 188–235 months' imprisonment. Without application of th e career-offender Guidelines, his sentencing range would have been 92–115 months' imprisonment. The district court 1 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 mu lti-decade battle with drug addiction, and various medical issues. He also argued th at 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 actuallychallenge the career-o ffender determination.
The district court imposed a bottom-of-the-range sentence of 188 months, noting that it had received Hendrix's argumen ts requesting a variance. In doing so, the district court expressly discussed several of the sent encing factors contained in 18 U.S.C. § 3553(a), noted that several of He ndrix'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.
-2-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 reasonabl eness of his sentence, arguing that the court should have granted a variance and should have ordered his sentence to run concurrently or partially conc urrently with his state senten ce. He also argues that the court inadequately demonstrated its consid eration of the 18 U.S.C. § 3553(a) factors. The government argues that the appeal waiv er precludes these arguments and, in the alternative, that the sentence is substantiv ely 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 pl ea agreement, which he characterizes as Offense Level 23. As a result, he conclude s that he is not bound by his waiver of the right to appeal sentenci ng issues. He asserts in the alternative that his arguments concerning substantive reas onableness 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. SeeUnited States v. Peck , 496 F.3d 885, 891 (8th Cir. 2007) (describing the pr esumption and allocation of the burden of rebuttal). He presents reasonable arguments in support of his position relying upon various § 3553(a) factors. His arguments de monstrate that a different sentence clearly would have been reasonable. They do not , however, demonstrate that the sentence imposed is unreasonable. The district c ourt elected to emphasize the violent nature of some of Hendrix's prior offenses, the seri ous 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 th an facts that might support a more lenient

-3-sentence, was not an abus e of discretion. SeeUnited States v. Ozmon , 713 F.3d 474, 476 (8th Cir. 2013) (standard of review).
Further, the sentencing record as a w hole 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 th e reviewing court mu st consider "the entire sentencing record, not merely the distri ct 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 th e district court was aware of and considered the § 3553(a) fact ors 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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