NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 22-1464

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UNITED STATES OF AMERICA

v.

HORACE HENRY,

a/k/a Dale R. Morgan, a/k/a Sadekie White,

a/k/a Metro, a/k/a Kevon Haynes, Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 4-19-cr-00231-001)

District Judge: Honorable Matthew H. Brann

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 13, 2023

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Before: JORDAN, PHIPPS, and ROTH, Circuit Judges.

(Filed: May 3, 2023)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PHIPPS, Circuit Judge.

Horace Henry pleaded guilty to conspiracy to commit mail fraud and aggravated 

identity theft for his role in a scheme to fraudulently order and intercept iPhones. 

Exercising jurisdiction over those federal offenses, see 18 U.S.C. § 3231, the District 

Court imposed a within-Guidelines-range sentence of 144 months’ imprisonment. 

Through a timely appeal, Henry now challenges two aspects of the calculation of that 

sentence. See id. § 3742(a); 28 U.S.C. § 1291. First, he disputes the application of the 

organizer-leader enhancement, which resulted in a four-point increase in his total offense 

level. See U.S.S.G. § 3B1.1(a). Second, Henry argues that the loss amount was much 

less than the $1.34 million found by the District Court, such that his offense level should 

not have been increased by fourteen points. See id. § 2B1.1(b)(1)(H). Reviewing the 

District Court’s factual findings for clear error and its application of the Guidelines to 

those facts for abuse of discretion, see United States v. Thung Van Huynh, 884 F.3d 160, 

165 (3d Cir. 2018), we will affirm the judgment of sentence.

A. The Organizer-Leader Enhancement

The District Court applied the four-point organizer-leader enhancement to Henry’s 

offense level after considering the factors in the Guidelines commentary. See U.S.S.G. 

§ 3B1.1(a). Subsequently, this Court construed the organizer-leader enhancement 

without reference to the factors in the commentary. See United States v. Adair, 38 F.4th 

341, 349–54 (3d Cir. 2022). See generally United States v. Nasir, 17 F.4th 459, 469–72 

(3d Cir. 2021) (en banc). Under the resulting interpretation, the terms ‘organizer’ and 

‘leader’ have different definitions, with ‘leader’ referring to “a person with high-level 

directive power or influence over criminal activity.” Adair, 38 F.4th at 354. But even 

under that definition, the factual record here sustains the District Court’s application of 
3

the enhancement. See Thung Van Huynh, 884 F.3d at 165 (explaining that the clear-error 

and abuse-of-discretion standards merge when the Guidelines provide a “predominantly 

fact-driven test” (quoting United States v. Richards, 674 F.3d 215, 223 (3d Cir. 2012))). 

Several facts before the District Court support the finding that Henry had highlevel directive power or influence over the criminal activity. The record contains 

evidence that Henry set up fraudulent customer accounts to order iPhones. He also 

picked up coconspirators from New York City and drove them to State College, 

Pennsylvania, staying overnight at least once. While there, he monitored the deliveries of 

fraudulently ordered iPhones for his coconspirators to retrieve. Because sometimes his 

coconspirators would have to submit proof of identification to the delivery drivers, Henry

provided them with false identifications. At least once, he split the group into teams to 

collect packages. Also, he recruited one of the seven participants, and he instructed that 

coconspirator to rent the vehicles used to retrieve the fraudulently ordered iPhones. In 

addition to his oversight responsibility for intercepting the fraudulently ordered iPhones, 

Henry would deliver the retrieved iPhones to an individual in New York for sale abroad. 

Henry contests the conclusion that he was a leader. He argues that he was merely 

a driver. But it was not clear error for the District Court to find that Henry’s involvement 

in the conspiracy – although it involved driving – went well beyond that function. Henry

further contends that he could not be a leader because another individual set up the fraud 

scheme before he joined. But that does not foreclose Henry from being a leader of the 

conspiracy, as there can be multiple leaders or organizers for coordinated criminal 

activity. See Adair, 38 F.4th at 352 (recognizing that criminal activity can involve

multiple organizers and leaders). Considering the record, the District Court did not abuse 

its discretion in concluding Henry acted as a leader of a seven-person scheme predicated 
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on identity theft and the collection of fraudulently ordered iPhones, which Henry 

oversaw. 

B. Loss Calculation

Henry also disputes the District Court’s calculation of the loss amount for this 

fraud scheme. See U.S.S.G. § 2B1.1(b)(1)(H). He argues that the District Court should 

have excluded from its calculation those losses that occurred during a six-month period 

when he did not actively participate in the conspiracy. But the loss amount includes acts 

within the scope of the jointly undertaken criminal activity in furtherance of the criminal 

activity and reasonably foreseeable in connection with the criminal activity. See id.

§ 1B1.3(a)(1)(B). And consistent with his role as a leader, Henry did not limit his 

involvement in the conspiracy’s scope with respect to the personal information of 390 

individuals that was used to order or attempt to order over 1,600 iPhones. Because Henry

had access to that information and used at least some of it, it was not an abuse of 

discretion to view the losses associated with those iPhones as a reasonably foreseeable 

consequence of the conspiracy that Henry orchestrated, for purposes of calculating the 

loss amount.

1

 

* * *

For the foregoing reasons, the judgment of sentence of the District Court will be 

affirmed.

1 The District Court sentenced Henry before this Court’s decision in United States v. 

Banks, 55 F.4th 246 (3d Cir. 2022), and any error by the District Court in not limiting the 

loss amount to actual losses consistent with that opinion, see id. at 258, is harmless here 

because the actual losses still exceed the $550,000 threshold for the fourteen-point 

increase in Henry’s offense level, see U.S.S.G. § 2B1.1(b)(1)(H).