Court Affirms Sentence In Spite of Delinquent Government PSR Objections

US v. Henderson: Henderson was the passenger in a taxi that was stopped in Charleston, West Virginia, after which 1.9 kg of “ice” methamphetamine was found in his bag. Following his arrest, Henderson made several phone calls from the regional jail that appear to show him (speaking in code) directing others on how to continue a drug trafficking operation, including telling one person (Cagle) what to do with several firearms. Henderson pleaded guilty to possession of 500 grams or more of methamphetamine.

In the initial PSR, the probation officer recommended a two-level enhancement for possession of a firearm in connection with the drug trafficking offense. Henderson objected in a letter to the probation officer and Government, to which the Government made no response. The probation officer agreed with Henderson and withdrew the recommended enhancement, a decision to which the Government made no objection.

In light of the Fourth Circuit’s decision in Jones, the district court asked for briefing as to whether Henderson might qualify for the safety valve. The Government used that opportunity to make untimely objections to the lack of the two-level gun enhancement, as well as a leadership enhancement, and to argue that Henderson should not receive credit for acceptance of responsibility. Henderson objected to the late objections and also argued that the enhancements should not apply. Ultimately, the district court applied the firearm and leadership enhancements, while awarding acceptance of responsibility, and sentenced Henderson to 188 months in prison (a downward variance based on the meth/ice disparity in the Guidelines).

On appeal, the Fourth Circuit affirmed Henderson’s sentence. Henderson’s primary argument was that the district court erred by considering the Government’s late objections, arguing that an invitation for briefing about the safety valve did not invite new objections to the PSR. The court disagreed and found no abuse of discretion in the district court considering the Government’s objections. In doing so, the court made it clear that “district courts have an independent obligation to properly calculate the applicable guideline range” and in “doing so, they aren’t limited to the parties’ arguments or the recommendations in the presentence report.” The court also rejected Henderson’s argument that the district court clearly erred in imposing the firearm enhancement.

NOTE: I was counsel on this case and argued it before the court.