United States of America v. Rodney Tyrone Henry

United States Court of Appeals
For the Eighth Circuit
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No. 23-2542
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Rodney Tyrone Henry
lllllllllllllllllllllDefendant - Appellant
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No. 23-2554
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Daryl Strickland, Jr.
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: February 13, 2024
Filed: July 2, 2024
[Published]
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Before SMITH, Chief Judge,1 BENTON and STRAS, Circuit Judges.
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PER CURIAM.
Daryl Strickland, Jr., and Rodney Tyrone Henry pleaded guilty pursuant to
written plea agreements to murder while discharging a firearm in furtherance of a
crime of violence. Both were subsequently sentenced to life imprisonment by the
district court.2 On appeal, Strickland and Henry argue that the district court erred in
finding that they committed the murder with premeditation. Henry also argues that
the district court erred in calculating his criminal history score and that his sentence
of life imprisonment is unreasonable. We affirm.
I. Background
Strickland and Henry were charged in a six-count indictment with two counts
of conspiracy to interfere with commerce by robbery, one count of attempt to interfere
with commerce by robbery, one count of murder while discharging a firearm in
furtherance of a crime of violence, one count of interference with commerce by
robbery, and one count of brandishing a firearm in furtherance of a crime of violence.
Strickland and the government subsequently entered into a plea agreement. Strickland
agreed to waive indictment and permit the government to file a superseding
1Judge Smith completed his term as chief judge of the circuit on March 10,
2024. See 28 U.S.C. § 45(a)(3)(A).
2The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
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information charging him with murder while discharging a firearm in furtherance of
a crime of violence; in exchange, the government agreed to dismiss the indictment.
Strickland stipulated that the following facts were true in his plea agreement:
On November 12, 2018, at 5:22pm, Daryl Strickland, Jr. and Rodney
Tyrone Henry knocked on the front door of Wise Buck Pawn Shop in
Pine Bluff, Arkansas, and asked if the store was still open. Wise Buck
Pawn Shop was a federal firearms licensee, engaging in business that
affected interstate commerce. The owner of the pawn shop, Brandon
McHan, told Strickland and Henry through the locked front door that the
store was closed for the night. Strickland and Henry then appeared to
leave the area. McHan and his friend, Jason Booth, who were the only
two in the store, continued closing. At approximately 5:30pm, McHan
and Booth exited the front door of the pawn shop to start their vehicles
because it was cold. Booth put his firearm in his car, and both went back
inside the store. At 5:34pm, Strickland and Henry entered the threshold
of the pawn shop, and Strickland fired several gunshots, striking both
McHan and Booth multiple times. Strickland and Henry then retreated
from the entrance of the store. Two minutes later, Strickland and Henry
both returned to the front door of the pawn shop, and Strickland began
shooting into the pawn shop. When McHan and Booth fired back,
Strickland retreated. After Strickland retreated, Henry fired multiple
gunshots into the pawn shop. Strickland then returned to the doorway of
the pawn shop and fired more gunshots inside. Strickland and Henry
then left the scene.
Approximately an hour later, Strickland and Henry entered the
Alon gas station at 2800 South Olive Street in Pine Bluff, Arkansas, and
held the store clerk at gun point. Henry, while pointing a firearm at the
store clerk, went behind the counter and emptied the cash register.
Strickland remained at the front of the counter, also holding the clerk at
gunpoint. In addition to $800, Henry stole the store clerk’s firearm.
Brandon McHan died later that night. McHan’s autopsy revealed
three gunshot wounds, which caused his death. The first bullet entered
his right abdomen and exited his back. The second bullet entered his
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right thigh and exited his right hip. A third [gunshot] was a
through-and-through wound to the right lower leg. Booth, who was near
the door when Strickland initially opened fire into the pawn shop, was
shot in the face near the chin area, and the bullet exited through his
neck. Booth was also shot in the left hand.
R. Doc. 80, at 6–7.
Strickland’s plea agreement contains an appeal waiver. Strickland agreed to
waive[] the right to appeal all non-jurisdictional issues including, but not
limited to, any issues relating to pre-trial motions, hearings and
discovery and any issues relating to the negotiation, taking or
acceptance of the guilty plea or the factual basis for the plea, including
the sentence imposed or any issues that relate to the establishment of the
Guideline range.
Id. at 3. The appeal waiver, however, does afford Strickland “the limited right to
appeal the substantive reasonableness of the sentence of imprisonment if the [c]ourt
determines that the murder of Brandon McHan was premeditated and applies
Application Note 2(A) of U.S.S.G. [§] 2A1.1 and imposes a life sentence.” Id. at 3.
Henry also waived indictment and pleaded guilty pursuant to a plea agreement
to the superseding information charging him with murder while discharging a firearm
in furtherance of a crime of violence. During Henry’s change-of-plea hearing, the
government read the same facts that Strickland stipulated to in his plea agreement and
stated that it would present evidence at trial to prove those facts. Henry admitted to
the district court that he had a weapon at the pawn shop and that he fired shots into
the pawn shop. He also admitted that McHan was murdered with a firearm in the
perpetration of the crime. As in Strickland’s case, the appeal waiver in Henry’s plea
agreement prevents him from appealing, among other things, “the sentence imposed
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or any issues that relate to the establishment of the Guideline range.” R. Doc. 91, at
3. But it permits him “to appeal claims of prosecutorial misconduct,” as well as
the limited right to appeal [1] the substantive reasonableness of the
sentence of imprisonment if the sentence is above the Guideline range
that is established at sentencing and if the defendant makes a
contemporaneous objection; . . . [2] if the [c]ourt determines that the
murder of Brandon McHan was premeditated and applies Application
Note 2(A) of U.S.S.G. [§] 2A1.1; and [3] . . . the substantive
reasonableness of the sentence of imprisonment if the [c]ourt imposes
a life sentence . . . .
Id.
Prior to sentencing, Henry, Strickland, and the government all filed sentencing
memoranda with the district court. Strickland requested a sentence of less than life
imprisonment, and Henry requested a downward variance. Henry also filed a motion
for a downward departure.
The district court held a joint sentencing hearing. It noted that the applicable
statute provides for a maximum term of life imprisonment. The district court
calculated Strickland’s Guidelines range to be 324 to 405 months’ imprisonment.
Henry objected to three criminal history points that he was assessed for two Arkansas
juvenile convictions, arguing that he should not have received criminal history points
for those convictions because they should have been expunged under Arkansas law.
The district court overruled Henry’s objection. It calculated Henry’s Guidelines range
to be 360 months’ to life imprisonment.
Next, the parties litigated the issue of premeditation to determine the
applicability of Application Note 2(A) of U.S.S.G. § 2A1.1. The government offered
into evidence, among other things, security camera footage from the pawn shop
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(Exhibit 1). The government played relevant clips of Exhibit 1 for the district court,
which shows the following events. Strickland and Henry approached the pawn shop
at approximately 5:22 p.m. and left at approximately 5:23 p.m. In his interview with
law enforcement, Strickland admitted that he and Henry reentered the car and talked
about how they were going to go back and approach the pawn shop. At approximately
5:35 p.m., Strickland entered the threshold of the pawn shop and began firing shots,
Henry stuck his head into the threshold of the pawn shop, and then they both
retreated. At 5:36 p.m., Strickland shot again, Henry shot, Strickland returned to fire
more shots, and then they both retreated. The government played another clip from
Exhibit 1, which is footage from a different camera inside the pawn shop. The
government pointed out to the court that the shots fired by Henry were fired where
Booth had been standing when Henry had previously stuck his head through the door.
After hearing the parties’ arguments, the district court found that both
Strickland and Henry acted with premeditation. The district court found that
Strickland acted with “premeditation in his decisions to enter the Wise Buck Pawn
Shop and essentially shoot first and ask questions later.” R. Doc. 126, at 76. The
district court further found that Henry did nothing to “dissuade[] Mr. Strickland in
that first . . . fire fight” and that Henry intended “to kill the occupants inside” when
he “shot into the store.” Id.
Strickland moved for a downward variance from the application note stating
that life imprisonment is the appropriate sentence and requested a sentence within
what his Guidelines range would have been without the application note. The district
court denied Strickland’s motion for a downward variance and sentenced him to life
imprisonment after “consider[ing] his presentence report in its entirety, the evidence
received today, the comments of counsel, the comments of Mr. Strickland, the
comments of the witnesses here today regarding their loss, and the factors found in
18 U.S.C. Section 3553.” Id. at 110. The court concluded that a life sentence “is
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sufficient but no greater than necessary to reflect the seriousness of the offense,
promote respect for the law, but also address [Strickland’s] needs.” Id. at 111.
The district court denied Henry’s prior request for a downward variance and
his motion for a downward departure. “After . . . consider[ing] Mr. Henry’s
presentence report in its entirety, comments of counsel, and the comments of Mr.
Henry as well as those who have spoken on behalf of the McHan family, and
considering the provisions found in 18, U.S.C., Section 3553,” the district court
sentenced Henry to life imprisonment. Id. at 126. The court did not consider Henry
to be any less culpable than Strickland based on the evidence.
II. Discussion
On appeal, Strickland and Henry both argue that the district court erred in
finding that the killing of McHan was premeditated and therefore warranted a life
sentence under Application Note 2(A) of U.S.S.G. § 2A1.1. Henry additionally argues
that the district court erred in calculating his Guidelines range because it included
criminal history points for juvenile adjudications. Finally, Henry argues that his life
sentence is substantively unreasonable because the district court failed to consider his
age at the time of the offense, childhood trauma, intellectual ability, lack of a male
role model, and role in the offense.
A. Premeditation
Both Strickland and Henry challenge the district court’s finding that they acted
with premeditation in the killing of McHan for purposes of U.S.S.G. § 2A1.1.
Strickland argues that the killing of McHan was an unplanned result of the botched
robbery due to a victim who was “prepared for a firefight.” Strickland’s Br. at 7. He
notes the lack of any text messages, telephone calls, or statements showing that he
had the intent to kill prior to entering the pawn shop. He also points out that only
eight seconds elapsed from when he entered the pawn shop and engaged in gunfire
with McHan. Henry argues that there is no evidence that he “knew Strickland was
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going to immediately open fire on the inhabitants in the pawn shop” or that he
“organized or led the robbery.” Henry’s Br. at 9.
“Whether the defendant committed or attempted a murder with premeditation
is a question of fact.” United States v. Wilson, 992 F.2d 156, 158 (8th Cir. 1993) (per
curiam). We review for clear error the district court’s finding of premeditation. United
States v. Graham, 323 F.3d 603, 609 (8th Cir. 2003).
“Section 2A1.1 sets a base offense level of 43 for first-degree murder.” United
States v. Barraza, 982 F.3d 1106, 1114 (8th Cir. 2020). Its commentary provides: “In
the case of premeditated killing, life imprisonment is the appropriate sentence if a
sentence of death is not imposed.” Id. (emphasis added) (quoting U.S.S.G. § 2A1.1
cmt. n.2(A)). “The amount of time needed for premeditation must be long enough for
the defendant, after forming the intent to kill, to be fully conscious of his intent, and
to have thought about the killing.” United States v. Angel, 93 F.4th 1075, 1079 (8th
Cir. 2024) (cleaned up). But the government is not required “to show that the
defendant deliberated for any particular length of time” to prove premeditation. Id.
(internal quotation marks omitted). A defendant’s “[s]wift but deliberate actions
before shooting can demonstrate . . . the requisite premeditation.” Id. (cleaned up).
Here, the video shows that Strickland and Henry approached the pawn shop but
left after being told it was closed. Twelve minutes later, they returned. Strickland
entered the threshold of the pawn shop and began firing shots, Henry stuck his head
into the threshold of the pawn shop, and then they both retreated. A couple of minutes
later, they returned. Strickland fired shots into the pawn shop again. Booth and
McHan returned fire. Strickland retreated. Henry then fired several shots toward
Booth and McHan, not away from them. Strickland then went to the pawn shop’s
front door and fired more shots. Thereafter, Strickland and Henry fled the scene.
These facts show that Strickland and Henry “had enough time to be fully conscious
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of [their] intent and to deliberate about [their] conduct. The district court did not
clearly err in finding [they] acted with premeditation.” Id.
B. Henry’s Criminal History Score
Henry argues that the district court miscalculated his criminal history score by
assessing three criminal history points for two juvenile offenses. The government has
moved to dismiss Henry’s appeal in part, arguing that Henry’s claim of procedural
error in calculating his criminal history score is barred by his appeal waiver. We
agree.
“We review de novo the issue of whether a defendant has knowingly and
voluntarily waived rights in a plea agreement.” United States v. Guzman, 707 F.3d
938, 941 (8th Cir. 2013) (internal quotation marks omitted). Our obligation is to
“confirm that the appeal falls within the scope of the [appeal] waiver and that both
the waiver and plea agreement were entered into knowingly and voluntarily.” Id.
(internal quotation marks omitted). But we will not enforce an appeal waiver that a
defendant entered knowingly and voluntarily if doing so “would result in a
miscarriage of justice.” Id. (internal quotation marks omitted).
Henry’s appeal waiver explicitly waives all of his appellate rights except for
claims of prosecutorial misconduct, as well as challenges to the “the substantive
reasonableness of the sentence of imprisonment if the sentence is above the Guideline
range that is established at sentencing and if [Henry] makes a contemporaneous
objection,” the district court’s determination that Henry acted with premeditation as
to the killing of McHan, and “the substantive reasonableness of the sentence of
imprisonment if the [c]ourt imposes a life sentence.” R. Doc. 91, at 3. Henry’s
argument that the district court procedurally erred in calculating his criminal history
score because it included two state juvenile delinquency adjudications does not
involve one of the enumerated exceptions listed in the appeal waiver. Instead,
Henry’s claim that the district court miscalculated his criminal history score is a claim
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of procedural error. See United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)
(treating a claim that the district court erroneously assessed criminal history points
as a claim of procedural error); Henry’s Br. at 10 (“The district court committed
procedural error by improperly calculating Mr. Henry’s criminal history score.”
(emphasis added)). Henry’s appeal challenging the court’s calculation of his criminal
history score falls within the scope of the appeal waiver, not one of its exceptions.
The record also shows that Henry entered his plea agreement knowingly and
voluntarily. In the plea agreement, Henry affirmed that he had “read this Agreement
and Addendum and carefully reviewed every part of it with his/her attorney,” that he
“underst[ood] and voluntarily agree[d] to the terms and condition[s] of this
Agreement and Addendum,” and that he had “consulted with his . . . attorney and
fully underst[ood] his . . . rights with respect to the provisions of the United States
Sentencing Guidelines which may apply to this case.” R. Doc. 91, at 13–14. Henry
further acknowledged that he was not “threatened or forced . . . in any way to enter
into this Agreement and Addendum” but instead “entered into this Agreement and
Addendum, consciously and deliberately, by [his] free choice, and without duress,
undue influence or otherwise being forced or compelled to do so.” Id. at 14.
Additionally, the district court confirmed at the change-of-plea hearing that Henry
had “gone over the waivers section [of the plea agreement] with [his] lawyers.” R.
Doc. 125, at 16. Henry acknowledged that he was “giving up virtually every right of
appeal [he] ha[s]” “by entering into this plea agreement.” Id. The appeal waiver in
Henry’s plea agreement was entered into knowingly and voluntarily. See Guzman,
707 F.3d at 941.
“Based on the record, we conclude the appeal falls within the scope of the
waiver and that both the waiver and plea agreement were entered into knowingly and
voluntarily.” Id. at 942 (internal quotation marks omitted). Because Henry’s life
sentence is within the applicable statutory range, no miscarriage of justice results
from enforcement of the appeal waiver. Cf. id. (holding that enforcing the appeal
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waiver when the sentence was below the statutory maximum did not amount to a
miscarriage of justice).
C. Substantive Reasonableness of Henry’s Life Sentence
Henry also contends that his life sentence is substantively unreasonable. He
“argues that the district court failed to properly consider his history and
characteristics. Specifically, his age at the time of the offense, childhood trauma,
intellectual ability, lack of a male role model, and his role in the offense.” Henry’s Br.
at 15.
“When we review the imposition of sentences, whether inside or outside the
Guidelines range, we apply a deferential abuse-of-discretion standard.” United States
v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Because Henry’s life
“sentence is within the Guidelines range,” we may afford it “a presumption of
reasonableness.” Id. (internal quotation marks omitted).
The district court expressly noted at sentencing that it had considered Henry’s
mitigation arguments, but it ultimately rejected them. Henry’s disagreement with the
district court’s weighing of the mitigating and aggravating circumstances is
insufficient to show that the sentence imposed is substantively unreasonable. See
United States v. Richart, 662 F.3d 1037, 1054 (8th Cir. 2011) (“Simply because the
district court weighed the relevant factors more heavily than [the defendant] would
prefer does not mean the district court abused its discretion.”).
III. Conclusion
Accordingly, we grant the government’s motion to dismiss in part Henry’s
appeal and affirm the judgments of the district court.
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