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 

following his guilty-plea convictions 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 sentences represented either an upward departure 

from the advisory Guidelines-sentencing range, pursuant to Guideline § 4A1.3

(departures based on inadequacy of criminal history category) or an upward 

* Pursuant to 5th 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 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 22, 2014

Lyle W. Cayce

Clerk

 

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No. 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 properly 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, 764 (5th Cir. 2008). But, Henderson did 

not object, on the grounds raised on appeal, in district court to the procedural 

or substantive reasonableness of the sentences; 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) error 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. Id.

Henderson contends the sentence is procedurally unreasonable because 

the district court did not adequately explain the extent of its departure or 

variance or why a lesser sentence would not satisfy the § 3553(a) requirements. 

To the contrary, the record confirms the district court provided adequate, 

fact-specific reasons for the selected sentence, stating the 36-month sentences 

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, 264 (5th Cir. 2009). Accordingly, the district court did not 

commit the requisite clear or 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). The district court, 

however, imposed alternatively a non-Guidelines 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 court: disregarded the sentencing disparity between him and his 

co-conspirators; and failed to properly consider the § 3553(a) factors. The court 

listened to Henderson’s counsel and, as discussed above, made an 

individualized assessment based on, inter alia, Henderson’s personal history 

and characteristics. His challenge to the 36-month sentence amounts to no 

more than a disagreement with the court’s balancing of the § 3553(a) factors. 

This court, however, is highly deferential on such balancing because “the 

sentencing court is 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 sentences, from the top-of-the-Guidelinesrange 18 months’ imprisonment to 36 months. See United States v. Brantley, 

537 F.3d 347, 349–50 (5th Cir. 2008); United States v. Jones, 444 F.3d 430, 

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441–42 (5th Cir. 2006). The court, acting within its discretion, did not commit 

the requisite clear or obvious error in imposing Henderson’s sentence.

AFFIRMED.

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