### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 30016 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. DAMARIO HENDERSON , Defendant

- Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:10

- CR

- 302

- 8

Before JOLLY, BARKSDALE, and OWEN, Circuit Judges. PER CURIAM: * Damario Henderson appeals his 36

- month concurrent sentences imposed fo llowing his guilty

- plea conviction s for : conspiracy to defraud the United States , in violation of 18 U.S.C. § 371; and health

- care fraud , in violation of 18 U.S.C. §§ 1347 and 2. The sentence s represen ted either an upward departure from the advisory G uidelines

- sentencing range , pursuant to Guideline § 4A1.3 (departures based on inadequacy of criminal history category ) or an upward

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 22, 2014

Lyle W. Cayce Clerk Case: 14-30016 Document: 00512742608 Page: 1 Date Filed: 08/22/2014No. 14

- 30016

variance , pursuant to the 18 U.S.C. § 3553(a) factors

. As explained below, Henderson challenges both the procedural and substantive reasonableness of his sentences. Although post

- Booker , the Sentencing Guidelines are advisory only, and
a pr operly preserved objection to an ultimate sentence is reviewed for reasonableness under an abuse

- of

- discretion standard, the district court must still calculate properly the Guidelines

- sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo ; its factual findings, only for clear error. E.g. , United States v. Cisneros

- Gutierrez , 517 F.3d 751, 76 4 (5th Cir. 2008). B ut, Henderson did not object, on the grounds raised on appeal, in district court to the procedural or substantive reasonableness of the sentence s ; therefore, review is only for plain error. United States v. Peltier , 505 F.3d 389, 391

– 92 (5th Cir. 2007). Under that standard, Henderson must show a forfeited plain (clear or obvious) e rror that affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the error, but should do so only if it seriously affects the fairness, integrity, or public reputation of the proceedings. I d. Henderson contends the sentence is procedurally unreasonable because the district court did not adequately explain t he extent of its departure or variance or why a lesser sentence would not satisfy the § 3553(a) requirements. To the contrary, t he record confirms the district court provided adequate, fact

- specific reasons for the selected sentence, stating the 36

- month sentence s were intended to protect society and deter similar, future offenses. The court also noted Henderson’s lengthy criminal history, the likelihood he would continue to commit other crimes , and the § 3553(a) factors. See Gall , 552 U.S.

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at 50

. Further , the court’s explanation allows for meaningful appellate review and promotes the perception of fair sentencing. See United States v. Whitelaw , 580 F.3d 256, 26 4 (5th Cir. 2009). Accordingly, the district court did not commit the requisite clear o r obvious error in explaining the sentence. Henderson next contends the court failed to follow the incremental method for calculating the extent of the departure , as set forth in Guideline § 4A1.3(a)(4)(B) (upward departures from category VI)

. T he district court , however, imposed alternatively a non - G uidelines variance, to which the incremental approach does not apply. See United States v. Mejia

- Huerta , 480 F.3d 713, 723 (5th Cir. 2007) ( reviewing, for harmless error, application of § 4A1.3 because non

- Guidelines sentence was also based on consideration of § 3553(a) factors). Again, the requisite clear or obvious error is lacking. Finally, Henderson contends his sentence is substantively unreasonable because the cou rt : disregarded the sentencing disparity between him and his

co - conspirators ; and failed to properly consider the § 3553(a) factors. T he court listened to Henderson’s counsel and , as discussed above, made an individual ized assessment based on , inter alia , Henderson’s personal history and characteristics

. H is challenge to the 36

- month sentence amounts to no more than a disagreement with the court’s balanci ng of the § 3553(a) factors. This court, however, is highly deferential on such balancing because “t he sentencing court i s in a better position to find facts and judge their import under the § 3553(a) factors”. United States v. Hernandez , 633 F.3d 370, 375 (5th Cir. 2011). Additionally , this court has upheld variances and departures greater than the increase to Henderson ’s sentence s, from the top

- of

- the

- Guidelines

range 18 months’ imprisonment to 36 months

. See United States v. Brantley , 537 F.3d 347, 349

– 50 (5th Cir. 2008); United Sta tes v. Jones , 444 F.3d 4 30,

3 Case: 14-30016 Document: 00512742608 Page: 3 Date Filed: 08/22/2014No. 14

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441

– 42 (5th Cir. 2006) . The court , act ing within its discretion , did not commit the requisite clear or obvious error in imposing Hen d erson’s sentence. AFFIRMED.

4 Case: 14-30016 Document: 00512742608 Page: 4 Date Filed: 08/22/2014