902 F.3d 822 (8th Cir. 2018), 17-2726, United States v. Henderson

Docket Nº:17-2726
Citation:902 F.3d 822
Opinion Judge:SMITH, Chief Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee v. Larry Lee HENDERSON, Defendant-Appellant
Attorney:Counsel who represented the appellant was Kevin Michael Whiteley of Saint Louis, MO. Counsel who represented the appellee was Jennifer J. Roy, AUSA, of Saint Louis, MO.
Judge Panel:Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
Case Date:August 30, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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902 F.3d 822 (8th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee


Larry Lee HENDERSON, Defendant-Appellant

No. 17-2726

United States Court of Appeals, Eighth Circuit

August 30, 2018

Submitted: April 12, 2018

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

Counsel who represented the appellant was Kevin Michael Whiteley of Saint Louis, MO.

Counsel who represented the appellee was Jennifer J. Roy, AUSA, of Saint Louis, MO.

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.


SMITH, Chief Judge.

Larry Lee Henderson challenges the district court’s[1] revocation of his supervised release, claiming insufficiency of the evidence. He also contends that two special conditions of his supervised release (1) are not reasonably related to the 18 U.S.C. § 3583(d) sentencing factors; (2) involve a greater deprivation of liberty than reasonably necessary; and (3) are inconsistent with the pertinent Sentencing Commission policy statements. We affirm.

I. Background

A. Original Conviction

In February 2014, while completing a prison term at a Bureau of Prisons halfway house, Henderson fraudulently purchased

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a car. As laid out in the undisputed presentence investigation report (PSR), Henderson obtained a 2004 Chevrolet Tahoe, priced at $13,871.50, from Driver Seat Auto Sales, LLC ("Driver Seat Auto"), in St. Charles, Missouri. Henderson identified himself as bishop, pastor, and chairman of the Holy Temple National Assembly of Churches, Inc., also known as the World Council of the National Assembly of Churches, Inc. To make the purchase, Henderson presented the car dealership with a $1,200 check as down payment. To obtain financing for the remainder of the purchase price, Henderson completed an online loan application, where he falsely claimed to be employed by the "US Ecclesiastical Court," drawing a salary of $5,800 per month. PSR at 5, United States v. Henderson, No. 4:14-cr-00207-HEA (E.D. Mo. Nov. 3, 2014), ECF No. 32. He produced two paystubs purportedly from the "US Ecclesiastical Court," as well as a 2013 Wage and Tax Statement (W-2) from the same company.2 Id. The W-2 noted Henderson’s salary at $62,882.56. Based on the false information he provided, Henderson received approval for his online financing application, and Henderson drove away in the Tahoe.

Henderson’s down payment check to Driver Seat Auto bounced. Its bank informed the dealership that the check came from a closed account. The company then contacted Henderson, who— after multiple collection attempts— promised to make good on the down payment. Two months later, Henderson paid the company with a cashier’s check, satisfying the down payment amount. Around the same time, Henderson fraudulently procured a Missouri Department of Revenue Notice of Lien Release ("Lien Release") for the Tahoe. He then used that document to apply for— and receive— a $4,000 loan from the Missouri Title Loan Company in St. Louis, Missouri. On his loan application, Henderson claimed— falsely— to be employed by an entity called "US Legal," with a salary of $2,370 every two weeks. Id. Henderson subsequently cashed the $4,000 check; he kept $2,000 as cash and placed $2,000 as a cashier’s check payable to the Holy Temple National Assembly Church. Henderson also received another loan from Missouri Title Loan for $1,200 based on the forged Lien Release and the false information he previously provided to the company. Throughout this time period, Henderson wired multiple payments for the financed Tahoe. However, only one of the payments was credited. The others failed because the originating bank accounts either lacked sufficient funds or were nonexistent.

A grand jury indicted Henderson on two counts: wire fraud, in violation of 18 U.S.C. § 1343, and mail fraud, in violation of 18 U.S.C. § 1341. Henderson pleaded guilty to wire fraud, and in exchange the government dismissed the mail fraud charge. While Henderson awaited sentencing, probation officers uncovered another one of his fraud schemes: [A]gents learned that Henderson was planning to start a new business named the Committee for Ex-Offenders Equality Association, which appeared to be an auxiliary to Henderson’s Holy Temple National Assembly Church. ... Henderson sought to rent property which was advertised for lease on Craigslist. The property included a business location and a residence in Florissant, Missouri. Specifically, in June 2014, Henderson contacted Meinecke Enterprises and arranged a

Page 825 meeting to discuss the lease of the property in Florissant, Missouri. Henderson and his associate ... and an unknown male met with Meinecke and agreed to lease the property and possibly purchase the property by August 31, 2014. The rental application noted that the applicant was the Holy Temple Church and the business at the location was to be named Committee Center of Holy Temple Outreach. On July 1, 2014, Henderson provided Meinecke three checks totaling $4,300.00. After attempting to deposit the checks, on July 3, 2014, the checks were returned as counterfeit as they purported to be drawn on a non-existent account located at Clayton Bank which is located in Tennessee.

Id. at 6-7 (bold omitted). The PSR also recounted Henderson’s three prior federal convictions for bank fraud, manufacture of forged securities, and unlawful use of counterfeited securities.

Henderson’s total offense level of nine and criminal history category VI yielded a Guidelines recommended range of 21 to 27 months’ imprisonment. At sentencing, the government voiced its concerns regarding Henderson’s history of noncompliance while on supervised released. It also advocated for a sentence at the high end of the Guidelines range, asking the court to take into account Henderson’s lengthy criminal history involving misrepresentation. The government then asked the district court to impose as a special condition of supervised release that Henderson "cannot act in any capacity for any employer, including a church or nonprofit entity, in either a salaried or volunteer capacity, to include a board member or consultant without the prior approval of the U.S. Probation Office." Sentencing Hr’g Tr. at 9, United States v. Henderson, No. 4:14-cr-00207-HEA (E.D. Mo. Jan. 7, 2015), ECF No. 60.

Henderson objected, averring that the proposed condition inappropriately restricted his employment and infringed on his rights under the First Amendment. He suggested that the court instead impose conditions that prohibit him from "opening new [bank] accounts, ... using checks, [and require him to] hav[e] a different financial officer at the church to handle the finances." Id. at 10. The district court adopted Hendersons recommendation and...

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