August 19, 2021 Christopher M. Wolpert Clerk of Court PUBLISH UNITED STATES COURT OF… v. Steven R. Henson

FILED
United States Court of Appeals
Tenth Circuit
August 19, 2021
Christopher M. Wolpert
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN R. HENSON,
Defendant - Appellant.
No. 19-3062
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:16-CR-10018-JTM-1)
Blair T. Westover (Beau B. Brindley, with her on the briefs), Chicago, Illinois,
for Defendant-Appellant.
James A. Brown, Assistant United States Attorney (Duston J. Slinkard, Acting
United States Attorney, with him on the brief), Office of the United States
Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-Appellee.
Before HOLMES, SEYMOUR, and MORITZ, Circuit Judges.
HOLMES, Circuit Judge.
Defendant-Appellant Steven R. Henson (“Mr. Henson”) appeals his
convictions and sentence related to his involvement in a drug distribution
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conspiracy in and around Wichita, Kansas. He raises four issues on appeal. First,
Mr. Henson argues that we should vacate his convictions and remand for a new
trial because the district court violated his Sixth Amendment rights by
erroneously depriving him of chosen counsel. Second, Mr. Henson claims the
district court committed reversible error by instructing the jury it could find the
requisite mental state for his crimes based on a “deliberate ignorance” or “willful
blindness” theory of knowledge. Third, Mr. Henson seeks remand for
resentencing based upon the purported procedural and substantive
unreasonableness of his sentence to life in prison. Fourth and finally, Mr. Henson
asks us to reconsider a prior precedent and, in doing so, hold that one of the
district court’s jury instructions misstated the law. For the reasons explicated
infra, we reject Mr. Henson’s challenges. Accordingly, exercising jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm Mr. Henson’s
convictions and sentence.
I
During the events at issue in this case, Mr. Henson was a licensed physician
specializing in pain management who operated the Kansas Men’s Clinic, along
with another medical office, in the Wichita, Kansas, area. In October 2014, the
Drug Enforcement Administration (“DEA”) began investigating Mr. Henson after
receiving calls from pharmacists complaining about his general practices and
2
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prescribing habits. See Aplee.’s Resp. Br. at 2–3; see also, e.g., Aplee.’s Suppl.
App., Vol. II, at 324–28 (Tr. Patricia O’Malley Test., dated Oct. 4, 2018) (DEA
diversion investigator describing the “types of red flags” raised by complaining
pharmacists regarding Mr. Henson’s medical and prescribing practices, including
“the large quantit[ies] of prescriptions, the high dosage amounts prescribed, the
higher strength of the medication prescribed,” the “flood” of patients that would
arrive once one patient filled a prescription Mr. Henson wrote, the unusual hours
at which Mr. Henson would see patients, Mr. Henson’s lack of medical staff, and
Mr. Henson’s acceptance of cash payments in lieu of insurance for “very
expensive” prescriptions).
Perhaps the most critical “red flag” that complaining pharmacists identified
was Mr. Henson’s penchant for prescribing potent controlled substances in great
quantities and in dangerous combinations. In particular, Mr. Henson was known
to prescribe high doses and large quantities of opioids, such as oxycodone and
methadone, and benzodiazepines, such as alprazolam, either alone or in
combination. See Aplee.’s Suppl. App., Vol. II, at 327–28 (Ms. O’Malley
describing prescriptions written by Mr. Henson for hundreds of doses of
methadone, oxycodone, and alprazolam, with the quantity of some prescriptions
so high that the daily dose was twenty pills); id., Vol. X, at 2636 (Tr. Steven
Henson Test., dated Oct. 17, 2018) (Mr. Henson testifying that he prescribed a
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combination of methadone, oxycodone, and alprazolam “fairly frequently”).1
Drugs such as methadone and oxycodone generally depress an individual’s
respiratory system, see Aplee.’s Suppl. App., Vol. VIII, at 2190–91 (Tr. Timothy
Rohrig Test., dated Oct. 15, 2018), whereas drugs like alprazolam “depress the
central nervous system, reduce breathing, and are ‘strong, hypnotic, sedative-type
drugs,’” Aplee.’s Resp. Br. at 12 n.2 (quoting Aplee.’s Suppl. App., Vol. VIII, at
2194); see Aplee.’s Suppl. App., Vol. II, at 304 (Ms. O’Malley describing the
“very common” usage by “street consumers” of Schedule II narcotic painkillers,
like oxycodone, in combination with Schedule IV benzodiazepines, like
alprazolam, to “experience a greater, longer high”). In combination, opioids and
benzodiazepines “can decrease breathing to the point that a person dies.”
Aplee.’s Resp. Br. at 12 n.2; see Aplee.’s Suppl. App., Vol. II, at 304–05 (Ms.
O’Malley: “The Schedule II narcotics [like oxycodone and methadone] . . . [are]
used in combination with a product . . . call[ed] . . . benzodiazepine . . . . They
1 Under the Controlled Substances Act, 21 U.S.C. §§ 801–904,
oxycodone and methadone are both classified as Schedule II drugs—meaning they
“ha[ve] a currently accepted medical use in treatment,” but also “a high potential
for abuse” that can “lead to severe psychological or physical dependence”—while
alprazolam is classified as a Schedule IV drug—meaning it “has a currently
accepted medical use in treatment” and a relatively “low potential for abuse.” See
21 U.S.C. § 812; 21 C.F.R. § 1308.12(b)(1)(xiv) (classifying oxycodone as a
Schedule II substance); 21 C.F.R. § 1308.12(c)(15) (classifying methadone as a
Schedule II substance); 21 C.F.R. § 1308.14(c)(2) (classifying alprazolam as a
Schedule IV substance); see also Aplt.’s App. at 29–30.
4
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both reduce breathing. Especially the benzodiazepine, it’s a central nervous
system depressant, and the two in combination can . . . . decrease the breathing to
the point that . . . . [y]ou can die.”).
Over the course of its investigation, the DEA uncovered several aspects of
Mr. Henson’s medical practice that led the agency to conclude he “was practicing
without a legitimate medical purpose outside the usual course of professional
practice, and that he was acting as a source of supply for street drug dealers.”
Aplee.’s Resp. Br. at 3; see Aplee.’s Suppl. App., Vol. IX, at 2346 (Tr. Richard
Morgan, M.D., Test., dated Oct. 16, 2018) (Dr. Morgan testifying that he found
Mr. Henson’s medical practice “to be reckless and dangerous” and “outside of the
course of legitimate practice”). To start, Mr. Henson performed no physical
exams and asked virtually no questions during appointments with his patients;
rather, he would ask these patients their names, ages, and whether they had pain,
and then proceed to write them prescriptions for large quantities of high-dose
medications.
For example, DEA Special Agent Andrea Harrison, testifying at Mr.
Henson’s trial, said that when she visited Mr. Henson at the Kansas Men’s Clinic
on May 4, 2015—while working in an undercover capacity—Mr. Henson merely
asked her the following: her name, date of birth, why she was visiting him, and
whether she had pain. Mr. Henson was the only individual in the office during
5
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the appointment, and he did not have Agent Harrison “fill out any new patient
paperwork,” examine her, “take [her] blood pressure or pulse,” or ask for any
medical records. Aplee.’s Suppl. App., Vol. IV, at 862–63 (Tr. Special Agent
Harrison Test., dated Oct. 9, 2018). Instead, Mr. Henson asked Agent Harrison
whether she was in pain generally, and after she stated that she suffered residual
pain from two car accidents, he wrote her a prescription for 240, 30-milligram
oxycodone pills. See id. at 864–67 (Agent Harrison testifying that Mr. Henson
never asked her when the purported pain-causing car accidents occurred, whether
she was hospitalized, or how much pain she was in, and that he only asked her the
specific area where she had pain after he wrote the prescription). At a follow-up
appointment on May 27, 2015, Mr. Henson wrote Agent Harrison another
prescription for 240, 30-milligram oxycodone pills “[w]ithout asking [her] about
the nature of her pain [or] whether the medication was helping or hurting her.”
Aplee.’s Resp. Br. at 4; see Aplee.’s Suppl. App., Vol. IV, at 872–73, 875.
Beyond Mr. Henson’s cursory examinations, investigators were also
troubled by the fact that many of Mr. Henson’s patients were drug abusers or were
diverting and selling prescriptions obtained from him. See, e.g., Aplee.’s Suppl.
App., Vol. II, at 388, 443–49 (Tr. Jeremy Wojak Test., dated Oct. 4, 2018) (one of
Mr. Henson’s ostensible patients testifying about his drug abuse and his sale of
drugs obtained via Mr. Henson’s prescriptions); id., Vol. III, at 632–36 (Tr.
6
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Amanda Terwilleger Test., dated Oct. 5, 2018) (another of Mr. Henson’s patients
testifying that she and Mr. Wojak would pay cash to Mr. Henson to obtain
prescriptions for hundreds of oxycodone pills to sell or to feed their addictions);
id., Vol. XIII, at 3561–68 (Tr. Joel Torres Test., dated Oct. 10, 2018) (Mr.
Henson’s former patient testifying that Mr. Henson charged $300 cash for office
visits; did not accept insurance; performed no physical examinations; and wrote
Mr. Torres prescriptions for oxycodone, methadone, and alprazolam, which Mr.
Torres then either sold or used to “get high” and feed his addiction); see also id.,
Vol. II., at 563–74 (Tr. Jordan Allison Test., dated Oct. 4, 2018) (Mr. Allison
testifying about his oxycodone addiction and his practice of buying drugs from
Mr. Wojak and either using them or selling them).
In particular, one of Mr. Henson’s patients, Nick McGovern, became a
major supplier and distributor of drugs based on his relationship with Mr. Henson.
See Aplee.’s Suppl. App., Vol. VI, at 1541–48 (Tr. Grant Lubbers Test., dated
Oct. 11, 2018) (Mr. Henson’s former patient testifying that he purchased pills
from Mr. McGovern, who obtained them via prescriptions written by Mr. Henson,
and that Mr. McGovern introduced Mr. Lubbers to Mr. Henson, who then wrote
prescriptions directly for Mr. Lubbers); id., Vol. VII, at 1730, 1735–43 (Tr. Keith
Attebery Test., dated Oct. 12, 2018) (same); id., Vol. XIII, at 3565–68 (same as to
Mr. Torres). Mr. McGovern was himself a heavy drug abuser, and he eventually
7
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succumbed to an overdose of methadone and alprazolam prescribed by Mr.
Henson. See Aplee.’s Suppl. App., Vol. V, at 1364–65; id., Vol. VI, at 1528–30
(Tr. Timothy Gorrill Test., dated Oct. 11, 2018) (coroner testifying regarding Mr.
McGovern’s death); id., Vol. VII, at 1710–11, 1802–03; see also Aplee.’s Resp.
Br. at 19–20.
As well, despite being notified numerous times that his patients were
diverting their medications, Mr. Henson continued his prescribing habits
unabated. See, e.g., Aplee.’s Suppl. App., Vol. X, at 2679, 2692–94 (Mr. Henson
acknowledging that he was notified by pharmacies and family members that his
patients might be diverting medications he prescribed to them, but admitting he
did not stop prescribing medication to them); id., Vol. XV, Ex. 54jj (text
messages from the father of one of Mr. Henson’s patients to Mr. Henson,
informing him that his son was diverting the medication prescribed by Mr.
Henson in order to pay for his gambling habit); id., Vol. XV, Ex. 55kk (voicemail
left by Lynn Harris, a United States Probation Officer, raising concerns that
medications prescribed by Mr. Henson “may be getting diverted”); see also id.,
Vol. XV, Ex. 55dd (voicemail from pharmacists in Ponca City, Oklahoma, raising
“red flags” about two of Mr. Henson’s patients, who came into the pharmacy late
at night and wanted to pay cash to fill high-dose and large-quantity prescriptions,
despite recently filling similar prescriptions).
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Based on the government’s investigation, a Kansas federal grand jury
indicted Mr. Henson on the following charges related to his medical practices:
Counts 1 and 2: conspiracy to distribute, dispense, and possess
with intent to distribute prescription drugs outside the usual
course of professional practice and without a legitimate medical
purpose, in violation of 21 U.S.C. §§ 841 and 846;
Counts 3 through 16: illegal drug distribution or dispensing
outside the usual course of professional practice without a
legitimate medical purpose, in violation of 21 U.S.C. § 841;
Count 17: illegal distribution or dispensing prescription drugs
outside the course of professional practice or without a legitimate
medical purpose that resulted in death, in violation of 21 U.S.C.
§ 841;
Count 18: possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924;
Count 19: knowingly making and using a false writing or
document, in violation of 18 U.S.C. § 1001;
Count 20: obstruction, in violation of 18 U.S.C. § 1509;
Counts 21 through 25: money laundering, in violation of 18
U.S.C. § 1957; and
Counts 26 through 31: money laundering, in violation of 18
U.S.C. § 1956.
See Aplt.’s App., Doc. 1, at 28–50 (Indictment, filed Jan. 12, 2016); Aplee.’s
Resp. Br. at 1–2.
At trial, Mr. Henson “did not challenge the government’s claim that . . .
[his] patients were either abusing or reselling their medications, nor that he issued
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the charged prescriptions.” Aplt.’s Opening Br. at 2. Rather, his defense “was
that he did not intentionally or knowingly issue any of the charged prescriptions
outside the course of professional practice or without a legitimate medical
purpose,” and that “he did not have any agreement with any of his patients to do
the same.” Id. Specifically, Mr. Henson pointed out that many of his patients
admitted lying to him about their drug addictions, and that he was, consequently,
unaware of their misuse of their prescriptions. He also explained that he
prescribed “continually increasing amounts of pain medication without any upper
boundary” based on alternative treatment theories and medical philosophies, and
that “at all times he was attempting to act in good faith and treat what he believed
to be his patients’ legitimate pain needs.” Id. at 5.
The jury, however, was largely unpersuaded, and it found Mr. Henson
guilty on Counts 1–17, 19–20, and 26–31. See Case No. 6:16-cr-10018-JTM,
Doc. 373 (Verdict, filed Oct. 23, 2018).2 Mr. Henson filed a motion for a new
2 Mr. Henson does not include the jury verdict form from his trial in
his appendix on appeal. However, we can take judicial notice of this document
from the district court’s docket. See, e.g., Bunn v. Perdue, 966 F.3d 1094, 1096
n.4 (10th Cir. 2020) (“Some of the relevant . . . filings in district court . . . were
not included in the record on appeal, but they are accessible from the district
court docket. We may therefore take judicial notice of the filings.”); United
States v. Holloway, 939 F.3d 1088, 1104 n.10 (10th Cir. 2019) (taking judicial
notice of district court filings, including the transcript of defendant’s sentencing
hearing, where the parties failed to include them in the record on appeal); see also
Milligan-Hitt v. Bd. of Trs. of Sheridan Cnty. Sch. Dist. No. 2, 523 F.3d 1219,
(continued...)
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trial, which the district court denied. Thereafter, the court sentenced Mr. Henson
to life imprisonment for his convictions—a sentence that fell within Mr. Henson’s
advisory guidelines range. Mr. Henson brings this timely appeal of his
convictions and sentence.
II
Mr. Henson raises four issues on appeal. First, Mr. Henson claims that he
was denied his Sixth Amendment right to counsel of choice based on an allegedly
erroneous, pre-trial ruling by the district court finding his original counsel labored
under a conflict of interest that could only be ameliorated through written
waivers. Second, Mr. Henson argues the district court erred by instructing the
jury on a “deliberate ignorance” or “willful blindness” theory of knowledge, when
the government failed to proffer sufficient evidence supporting such an
instruction. Third, Mr. Henson contends his sentence is procedurally and
substantively unreasonable. Fourth, Mr. Henson requests that we revisit and
2(...continued)
1231 (10th Cir. 2008) (noting, in discussing the difference between the record and
a party’s appendix, that “[t]he record on appeal comprises all of ‘the original
papers and exhibits filed in the district court,’” along with “the transcript of
proceedings,” and that we “retain the authority to go beyond the appendix if we
wish, because all of the transcripts . . . and documents and exhibits filed in
district court remain in the record regardless of what the parties put in the
appendix” (quoting FED. R. APP. P. 10(a))).
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overturn one of our prior precedents—and, in so doing, conclude that a jury
instruction in his trial misstated the law.
We consider each issue in turn. In the end, we conclude that Mr. Henson’s
arguments on appeal are unavailing. Accordingly, we affirm his convictions and
sentence.
A
In his first issue on appeal, Mr. Henson contends he is entitled to a new
trial because he was denied his counsel of choice, thereby violating his Sixth
Amendment rights. We begin by reviewing the procedural history relevant to this
issue, after which we assess Mr. Henson’s arguments in support of his
counsel-of-choice claim. Ultimately, we do not reach the merits of this issue
because we conclude Mr. Henson abandoned the issue in the district court by way
of his attorney’s voluntary withdrawal from the case. Mr. Henson has, therefore,
waived appellate review of the issue.
1
Mr. Henson’s counsel-of-choice claim relates to events that occurred pre-
trial. Specifically, two weeks before Mr. Henson’s trial was originally scheduled
to commence, the government filed a motion styled “United States’ Motion to
Determine Conflict of Interest.” See Aplt.’s App., Doc. 200, at 51 (Gov’t’s Mot.
to Determine Conflict of Interest, filed July 10, 2017). The government raised the
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possibility that Mr. Henson’s then-counsel, Kurt Kerns, was laboring under a
conflict of interest based on his past representation of two individuals involved in
Mr. Henson’s prosecution: (1) a government witness who Mr. Kerns had
represented ten to fifteen years prior on aggravated battery charges in Kansas
state court, and (2) Mr. Henson’s former patient and co-defendant, Joel Torres,3
who had been represented by Mr. Kerns in three prior cases in Kansas state
court—two involving drug distribution charges, and one involving a misdemeanor
concealed weapons charge. The government contended that, because it was likely
Mr. Henson’s defense would be “that all [his] patients were addicts,” that they
“all lied to [him],” and that “he had no knowledge” any of his patients were
diverting drugs, it would be “reasonable to expect” that Mr. Kerns’s
cross-examination of his former clients would cover their drug abuse and whether
such abuse “cloud[ed] their memor[ies] of the events to which they will testify.”
Id. at 54. Under Kansas Rule of Professional Conduct 1.9(c), Mr. Kerns could
3 Mr. Torres pleaded guilty to conspiracy to distribute prescription
pills and entered into a plea agreement on May 31, 2017, pursuant to which he
waived his Fifth Amendment rights and testified at Mr. Henson’s trial. See
Aplee.’s Suppl. App., Vol. XIII, at 3561–65; id., Vol. XV, Ex. 7-b, at 4 (Joel
Torres Plea Agreement, filed May 31, 2017) (waiving any rights “which might be
asserted under,” inter alia, “the United States Constitution . . . that pertain[] to
the admissibility of any statements [Mr. Torres] ma[kes] after th[e] Plea
Agreement”); see also Aplt.’s App. at 51 (noting that Mr. Torres had been
“subpoenaed to testify, and will testify on behalf of the United States” in Mr.
Henson’s trial).
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not rely on protected information or personal facts obtained through his prior
representation for the benefit of Mr. Henson.4 Thus, in the government’s eyes,
Mr. Kerns’s divergent ethical obligations—i.e., those owed to Mr. Henson and
those owed to his former clients—would impair his ability to “adequately
represent” Mr. Henson. Id. at 55. Considering the specter of this ethical
dilemma, the government requested that the district court determine if conflicts of
interest existed and, if so, whether they could be waived.
Responding to the government’s motion, Mr. Kerns disputed that he labored
under a conflict of interest and argued that his prior representations of the
government’s witnesses occurred in the “distant past” and in cases “completely
4 See Kan. R. Pro. Conduct 1.9(c) (“A lawyer who has formerly
represented a client in a matter . . . shall not thereafter: (1) use information
relating to the representation to the disadvantage of the former client except as
these Rules would permit or require with respect to a client or when the
information has become generally known; or (2) reveal information relating to the
representation except as these Rules would permit or require with respect to a
client.”). Under its Local Rule 83.6.1(a), the District of Kansas adopts the
Kansas Rules of Professional Conduct “as the applicable standards of professional
conduct” within the federal district court, “except as otherwise provided by a
specific rule of th[e] court.” Mr. Henson does not contend that any specific rule
of the District of Kansas provided for the exclusion of Rule 1.9(c), and our
examination of the local rule’s text and other research does not support such a
conclusion. See United States v. Bo Cheng Feng, No. 05-40095-01-JAR, 2006
WL 3747554, at *1-2 (D. Kan. Dec. 12, 2006) (noting, in ruling on a motion to
determine conflict of interest filed by the government—in a situation analogous to
the one here—that “[t]he standards for conduct of attorneys in [the District of
Kansas] are the Kansas Rules of Professional Conduct as adopted by the Supreme
Court of Kansas” and specifically discussing Kansas Rule of Professional
Conduct 1.9).
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unrelated to [Mr. Henson’s] prosecution.” Id., Doc. 204, at 56 (Def.’s Resp. to
Gov’t’s Mot. to Determine Conflicts, filed July 13, 2017). Moreover, Mr. Kerns
averred he had “no recollection of” these prior representations “whatsoever” and,
therefore, “[t]here [was] no conflict” and “nothing to have either client waive.”
Id. at 56–57.
The district court held a hearing on the government’s motion on Tuesday,
July 18, 2017. During the hearing, the court made the following remarks, which
are integral to Mr. Henson’s counsel-of-choice claim:
I am not as concerned about the [government witness’s prior]
battery charge, I don’t think that . . . create[s] an actual conflict,
even if drug use may have contributed or been one of the
underlying factors in the battery but your prior representation of
a co-defendant on a drug distribution charge, whether you have
any memory of it or not, Mr. Kerns, makes Dr. Henson’s interests
materially adverse to your former client on a matter that’s
substantially related to the prior representation.
While I do not know what position Dr. Henson intends to take at
trial, I don’t think it’s too far fetched to think that he likely will
claim that his patients misled him and that he did not know that
they were diverting drugs and that being the case, the interests of
the clients are materially—your two clients are materially adverse
and effective cross examination of the co-defendant probably is
going to require you asking about his drug use and history.
And even if you no longer remember at all the representation, the
fact that you were once privy to the witness’s confidential
information, and likely retained some evidence of it even if it’s
in storage, creates a conflict with your former client and I really
believe that in order to continue representation, you’re going to
have to obtain a written waiver of the conflict both from Dr.
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Henson and from your former client, and it sounds as if he is not
going to be willing to waive that conflict.
There . . . was a case out of Ohio that was cited in the
Government’s brief about a taint team approach, where somebody
else from your firm might be in a position to do the cross-
examination of the witness but I am not even sure here that that
would fully address what needs to be done and so while—and I’m
happy to hear any evidence anybody would like to present here
on this today, my inclination is to find that there is a conflict if
you can’t obtain waivers from everyone that’s involved, Mr.
Kerns. And if you are able to do that, I would like to know by the
end of this week and would like to have those written waivers
submitted so that we have them. And if I haven’t heard from you
by Friday at 9 o’clock that you have obtained the waivers, absent
some further authority, I intend to find that there is an
irreconcilable conflict of interest and Dr. Henson is going to
have to obtain different counsel. Unless the parties can agree
upon some other approach.
Id., Doc. 410, at 146–48 (Tr. Hr’g on Gov’t’s Conflicts Mot., dated July 18, 2017)
(emphasis added) (line breaks omitted). Later in the hearing, the court stated, in
denying Mr. Henson’s motion for a continuance, that Mr. Henson’s trial would
start on Monday, July 24, 2017, “unless, Mr. Kerns . . . end[ed] up either being
removed by [the court] for a conflict of interest, or voluntarily withdrawing in an
effort to allow Dr. Henson to find different counsel.” Case No.
6:16-cr-10018-JTM, Doc. 410, at 12:4-8 (Tr. Hr’g on Gov’t’s Conflicts Mot.,
dated July 18, 2017).5
5 Mr. Henson has not included this portion of the hearing transcript in
his appendix on appeal. However, we take judicial notice of these documents
(continued...)
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The next day, on July 19, 2017, Mr. Kerns filed his “Motion to Withdraw as
Counsel Pursuant to the Court’s Order to Withdraw.” Aplt.’s App., Doc. 210, at
66–67 (capitalization omitted). Purporting to move the district court “pursuant to
its order on July 18, 2017 determining a conflict and ordering counsel to
withdraw,” Mr. Kerns represented that he was unable to obtain waivers from his
prior clients, based on statements made by their current counsel. Id. at 66
(emphasis added). Mr. Kerns further averred that he was filing the motion “in
compliance with the Court’s order, while preserving the issue for future appellate
review, if necessary.” Id. By minute order dated July 21, 2017, the district court
granted Mr. Kerns’s motion “for reasons stated on the record at the July 18, 2017
hearing and because defendant has new counsel as to Steven R. Henson.” See id.,
Doc. 212, at 11 (Minute Order, entered July 21, 2017).
After he was convicted, Mr. Henson raised this counsel-of-choice issue in
his motion for new trial, which the district court denied.6 The court
5(...continued)
from the district court’s docket. See supra note 2.
6 On appeal, the government contends that Mr. Henson has forfeited
his counsel-of-choice claim based on purported dissimilarities between his
post-trial arguments and his arguments on appeal. See Aplee.’s Resp. Br. at 28
(“[I]n this case plain error review is in order because [Mr.] Henson advances his
denial-of-counsel-of-choice claim on a different ground than the one he raised in
the district court.”). Specifically, the government argues that, in the district
court, Mr. Henson “claimed that the district court violated his Sixth Amendment
right to counsel of choice by ordering [Mr.] Kerns to withdraw and forcing his
(continued...)
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acknowledged that, at the end of its July 18 hearing on the government’s
conflict-of-interest motion, it stated that, “absent some additional arrangement . . .
a conflict of interest likely existed, and gave the parties a week to suggest
solutions.” Id., Doc. 427, at 193 (Mem. & Order, entered Mar. 4, 2019). But “the
6(...continued)
dismissal from the case,” whereas on appeal, Mr. Henson “[n]ow . . . asserts that
‘[t]he district court’s decision to require a conflict waiver deprived [him] of his
right to counsel of choice,’ and that ‘the district court’s erroneous finding of a
conflict requiring waiver resulted directly in the motion to withdraw and plainly
deprived [Mr.] Henson of counsel of choice.’” Id. at 28–29 (third alteration in
original) (citations omitted) (quoting Aplt.’s Opening Br. at 24, 27). In other
words, “rather than claim that the district court erroneously ordered [Mr.] Kerns
to withdraw—which was [Mr.] Henson’s argument in the district court—[Mr.]
Henson now claims that the district court[’s] alleged[ly] ‘erroneous finding of a
conflict requiring waiver’ animated [Mr.] Kerns’s voluntary decision to withdraw,
thereby depriving [Mr.] Henson of his Sixth Amendment right to counsel of
choice.” Id. at 29.
The government is correct that our forfeiture principles apply to a situation
where “a litigant changes to a new theory on appeal that falls under the same
general category as an argument presented at trial.” United States v. Leffler, 942
F.3d 1192, 1196 (10th Cir. 2019) (quoting United States v. Nelson, 868 F.3d 885,
891 n.4 (10th Cir. 2017)); see Aplee.’s Resp. Br. at 30; see also United States v.
Burke, 571 F.3d 1048, 1057 (10th Cir. 2009) (“[W]hen a defendant pursues a
particular theory or objection, but fails to raise another closely related argument,
he has forfeited the argument and we review only for plain error.”). Thus, if Mr.
Henson failed to raise in the district court the counsel-of-choice arguments he
now makes on appeal, we would review this claim for, at most, plain
error—provided that Mr. Henson were to make a plain error argument on appeal.
See, e.g., In re Rumsey Land Co., LLC, 944 F.3d 1259, 1271–72 (10th Cir. 2019).
However, we need not consider whether Mr. Henson has forfeited his
counsel-of-choice claim because, as explained further infra, we conclude that Mr.
Henson affirmatively abandoned this claim in the district court, thereby waiving
appellate review of it entirely.
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matter was [ultimately] taken out of the court’s hands” by Mr. Kerns’s motion to
withdraw, filed in lieu of “obtaining waivers from his prior clients” or “providing
for other possible resolutions.” Id. As for its comments during the hearing, the
district court noted that, while it indicated it was inclined to find a conflict, that
inclination “was explicitly not final.” Id. at 195. Moreover, the court suggested
that any conflict might be remedied through written waiver, a “taint team
approach,” or another method devised by the parties themselves. Id. The court
also solicited additional evidence and legal authority relevant to this issue. Id.
Yet “[a]ll of these potential avenues were short-circuited by Mr. Kerns’s
voluntary withdrawal.” Id. Thus, the court found that Mr. Henson’s “claim . . .
[was] precluded by the procedural history of the case”—i.e., that Mr. Kerns
“voluntarily withdrew from representation, without objection by [Mr. Henson],
prior to any actual decision by th[e] court disqualifying counsel”—and,
consequently, Mr. Henson’s “long-belated assertion of his constitutional choice of
counsel d[id] not warrant a new trial.” Id. at 197.
2
On appeal, Mr. Henson is keen to contest what he views as the district
court’s erroneous finding of a conflict of interest—a finding that, in his telling,
arbitrarily deprived him of his chosen counsel in violation of his constitutional
rights. As a general matter, Mr. Henson is correct that the Sixth Amendment
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guarantees the accused the “right to be represented by an otherwise qualified
attorney whom [he] can afford to hire.” United States v. McKeighan, 685 F.3d
956, 966 (10th Cir. 2012) (quoting Caplin & Drysdale v. United States, 49 U.S.
617, 624–25 (1989)); see United States v. Gonzalez-Lopez, 548 U.S. 140, 147–48
(2006) (noting that the right to counsel of choice “has been regarded as the root
meaning of the [Sixth Amendment’s] constitutional guarantee”); see also United
States v. Holloway, 826 F.3d 1237, 1241 (10th Cir. 2016) (“Because ‘erroneous
deprivation of the right to counsel of choice [has] “consequences that are
necessarily unquantifiable and indeterminate, [the deprivation] unquestionably
qualifies as structural error.”’ Accordingly, ‘[i]f a defendant is wrongly denied
his counsel of choice, no showing of prejudice is necessary to establish
constitutional error.’” (alterations in original) (citations omitted) (first quoting
Gonzalez-Lopez, 548 U.S. at 150, then quoting McKeighan, 685 F.3d at 966)). But
cf. Holloway, 826 F.3d at 1241–42 (noting that the right to chosen counsel “is not
absolute”; that district courts enjoy “wide latitude in balancing the right to
counsel of choice against the needs of fairness”; and that, accordingly, “[o]nly
when the trial court unreasonably or arbitrarily interferes with a defendant’s
right to counsel of choice do we agree a conviction cannot stand” (quoting first
McKeighan, 685 F.3d at 966, quoting second Gonzalez-Lopez, 548 U.S. at 152,
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and quoting third United States v. Mendoza-Salgado, 964 F.2d 993, 1016 (10th
Cir. 1992))).
However, we do not reach the merits of Mr. Henson’s counsel-of-choice
claim because we agree with the district court: Mr. Kerns’s voluntary withdrawal
took the matter “out of the court’s hands” and “short-circuited” the court’s
decision-making process. Aplt.’s App. at 193, 195. That is to say, we conclude
that, by voluntarily withdrawing his representation of Mr. Henson before the
district court could issue a definitive decision on the conflict-of-interest question,
Mr. Kerns effectively abandoned the basis for any argument that Mr. Henson
could raise on appeal that the court erroneously or arbitrarily deprived him of his
counsel of choice. And, under our precedents, the abandonment of an issue in the
district court effects a waiver of appellate review of that issue. Accordingly,
because Mr. Henson has not preserved—indeed, has waived—any argument for a
new trial based on the deprivation of counsel stemming from an allegedly
erroneous conflict-of-interest ruling, we affirm the district court’s denial of Mr.
Henson’s motion for new trial on this ground.7
7 While the government does not argue that Mr. Henson has waived his
counsel-of-choice claim because, in the district court, Mr. Kerns abandoned the
conflict-of-interest issue that is a necessary predicate for that claim, we may
enforce a party’s waiver of an appellate issue on our own. See United States v.
Dahda, 853 F.3d 1101, 1118 n.9 (10th Cir. 2017) (“The government urged
forfeiture rather than waiver. But we may consider the issue of waiver sua
(continued...)
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As a threshold matter, “[t]he scope of our review . . . is limited to the issues
the [appellant] properly preserves in the district court and adequately presents on
appeal.” Allman v. Colvin, 813 F.3d 1326, 1329 (10th Cir. 2016) (omission in
original) (quoting Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996)). In this
vein, we have held that where an appellant waives an issue in the district court, he
fails to preserve it for appellate review. See United States v. McGehee, 672 F.3d
860, 873 (10th Cir. 2012) (“[A] party that has waived a right is not entitled to
appellate relief.” (alteration in original) (quoting United States v. Teague, 443
F.3d 1310, 1314 (10th Cir. 2006))); cf. Singleton v. Wulff, 428 U.S. 106, 120
(1976) (“It is the general rule, of course, that a federal appellate court does not
consider an issue not passed upon below.”).
“[W]aiver is the ‘intentional relinquishment or abandonment of a known
right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)); accord Tesone v. Empire Mktg. Strategies, 942
7(...continued)
sponte.”), aff’d, 138 S. Ct. 1491 (2018); see also United States v. Mancera-Perez,
505 F.3d 1054, 1057 n.3 (10th Cir. 2007) (“We may consider an issue of waiver
sua sponte.”). Furthermore, Mr. Henson’s appellate counsel was afforded an
opportunity to address the issue of waiver at oral argument and, “although we do
not accord the fact great weight in our analysis, we note that the government did
contend at oral argument that Mr. [Henson] failed to preserve the [conflict-of-
interest] argument” because Mr. Kerns voluntarily withdrew after the hearing.
United States v. McGehee, 672 F.3d 860, 873 n.5 (10th Cir. 2012); see Oral Arg.
at 21:04–07 (government arguing that Mr. Kerns’s withdrawal foreclosed the
possibility of “garden-variety preservation of an appellate issue”).
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F.3d 979, 991 (10th Cir. 2019); see also Vreeland v. Zupan, 906 F.3d 866, 876
(10th Cir. 2018) (“[W]hen we say a defendant has waived a particular right, we
mean that the defendant has knowingly, voluntarily, and intentionally chosen to
relinquish it.”). “We typically find waiver . . . in cases where a party has invited
the error that it now seeks to challenge, or”—as is especially relevant
here—“where a party attempts to reassert an argument that it previously raised
and abandoned below.” McGehee, 672 F.3d at 873 (quoting United States v.
Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008)); see United States v.
Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009) (“Waiver occurs when a
party deliberately considers an issue and makes an intentional decision to forgo
it.”).8
Waiver, then, “is accomplished by intent.” United States v.
Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007) (quoting United States v.
Staples, 202 F.3d 992, 995 (7th Cir. 2000)). And where a litigant “intentionally
relinquished or abandoned [a theory or argument] in the district court, we . . .
8 By contrast, forfeiture of an issue “comes about through
neglect”—i.e., unintentional conduct, such as when a party simply fails to raise an
issue in the district court. McGehee, 672 F.3d at 873 (quoting Zubia-Torres, 550
F.3d at 1205). “Unlike waived theories,” for which a party is not entitled to
appellate review, “we will entertain forfeited theories on appeal, but we will
reverse a district court’s judgment on the basis of a forfeited theory only if failing
to do so would entrench a plainly erroneous result.” Richison v. Ernest Grp., Inc.,
634 F.3d 1123, 1128 (10th Cir. 2011).
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deem it waived and refuse to consider it.” Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1127 (10th Cir. 2011). Our decision in United States v. Carrasco-Salazar
illustrates a typical abandonment scenario.
There, we considered a defendant’s attempt “to resurrect [on appeal] his
argument that the imposition of a 16-level [sentencing] enhancement was
improper”; the defendant had made this argument in objections to his presentence
investigation report, but during his sentencing hearing, his counsel asserted those
objections had “been resolved.” Carrasco-Salazar, 494 F.3d at 1271–72. On
appeal, we concluded that this withdrawn objection had been affirmatively
abandoned by the defendant and, therefore, he had waived the opportunity to raise
the objection on appeal. See id. at 1272–73. Noting that “our sister circuits have
uniformly held that an abandoned objection is waived,” we held that “[t]here can
be no clearer ‘intentional relinquishment or abandonment of a known right’ than
when the court brings the defendant’s prior objection to his attention, asks
whether it has been resolved, and the defendant affirmatively indicates that it
has.” Id. at 1272–73 (citation omitted) (quoting Olano, 507 U.S. at 733).
Accordingly, we concluded that the defendant had “waived his objection to
the 16-level enhancement by indicating to the district court that it had been
resolved” and, therefore, he was “precluded from challenging . . . [that]
enhancement on appeal.” Id. at 1273; see also, e.g., United States v. Carter, 941
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F.3d 954, 959 (10th Cir. 2019) (finding that defendant waived a procedural
challenge to his sentence where his “counsel unequivocally stated [at sentencing]
that [d]efendant withdrew his objection” and, therefore, “affirmatively
abandoned” the challenge in the district court); McGehee, 672 F.3d at 873–76
(discussing our holding in Carrasco-Salazar and finding a defendant had waived
appellate review of a sentencing argument “he expressly declined to pursue before
the district court”); cf. Cruz-Rodriguez, 570 F.3d at 1185 (describing our “classic
waiver situation” as one “where a party ‘actually identified [an] issue,’
‘deliberately considered’ it, and then affirmatively acted in a manner that
‘abandoned any claim’ on the issue” (quoting Zubia-Torres, 550 F.3d at
1205–06)).
The record before us makes plain that Mr. Kerns’s voluntary and
affirmative withdrawal of his representation of Mr. Henson abandoned—that is,
waived—the conflict-of-interest issue before the district court could definitively
rule on it. And, because a court ruling adverse to Mr. Henson on this issue is a
necessary predicate for his Sixth Amendment counsel-of-choice claim, Mr. Kern’s
action had the effect of depriving Mr. Henson of an opportunity—i.e., waiving his
opportunity—to present this claim on appeal. In other words, Mr. Henson
predicates his Sixth Amendment argument on the district court’s purportedly
erroneous adverse determination that Mr. Kerns labored under a conflict of
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interest remediable only through written waivers from Mr. Henson and the
government’s witnesses. But there is a fatal flaw in Mr. Henson’s position—the
district court never made such a determination. Cf. Aplee.’s Resp. Br. at 31–32
(arguing that Mr. Henson’s counsel-of-choice claim fails because it “is based on
[an] absent factual premise: that is, the district court did not make a finding that a
conflict existed that could be remedied only by waivers from [Mr.] Kerns’s
former clients”).
At the hearing on the government’s motion, the court expressed only an
“inclination” that it might potentially find an irreconcilable conflict at a future
date—or, at most, that it “intend[ed] to” make such a finding in the absence of
certain ameliorative measures. See Aplt.’s App. at 147–48. As to these measures,
the court suggested that it would find any potential conflicts cured were Mr.
Kerns to obtain written waivers from Mr. Henson and his former clients by 9:00
a.m. that Friday, July 21, 2017. Significantly, and contrary to what Mr. Henson
argues in his opening brief, the court did not limit the galaxy of ameliorative
measures solely to written waivers. Instead, the court broached the possibility of
a “taint team approach,” or “some other approach”—that the parties might
formulate and agree to—to cure any potential conflicts under which Mr. Kerns
labored; more generally, it invited the parties to present “any evidence” they had
on the issue or to submit “further authority” that might move the court away from
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its initial “inclination.” Aplt.’s App. at 147–48; see id. (noting that the court
“intend[ed] to find that there is an irreconcilable conflict of interest,” “absent
some further authority” or “[u]nless the parties can agree upon some other
approach” (emphases added)).
But rather than avail himself of any of these options, Mr. Kerns instead
chose to voluntarily withdraw the day after the court’s hearing, thereby leaving
the conflict-of-interest question unresolved. See id. at 195 (“The court’s decision
[on the conflict-of-interest issue] was explicitly not final and suggested
alternatives. The court indicated that it was ‘inclin[ed]’ to find a conflict, and
acknowledged that this could potentially be resolved in three ways—by ‘written
waiver,’ by a . . . ‘taint team approach,’ or by ‘some other approach’ if agreed to
by the government and [Mr. Henson]. The court also asked for ‘any evidence’
any party would like to submit, and also explicitly invited ‘further authority’ on
the issue. All of these potential avenues were short-circuited by Mr. Kerns’s
voluntary withdrawal.” (second alteration in original) (emphasis added)). In other
words, what Mr. Henson characterizes as a decision or “ruling” by the district
court, see Aplt.’s Opening Br. at 25, was far more contingent and far less
definitive—and, consequently, did not constitute a decision at all. And “[a]s a
general rule, we do not consider an issue not presented, considered, and decided
by the district court.” Maestas v. Lujan, 351 F.3d 1011, 1016 (10th Cir. 2003)
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(alteration in original) (emphasis added) (quoting United States v. Duncan, 242
F.3d 940, 950 (10th Cir. 2001)); accord Niemi v. Lasshofer (“Niemi II”), 770
F.3d 1331, 1346 (10th Cir. 2014); cf. United States v. Suggs, 998 F.3d 1125, 1141
(10th Cir. 2021) (noting that “we are ‘a court of review, not of first view’”
(quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)).
Faced with the absence of any definitive ruling from the district court on
whether Mr. Kerns labored under a conflict of interest or whether any potential
conflict could be cured only through written waivers—an absence that resulted
from Mr. Kerns’s voluntary withdrawal before the court could render a definitive
ruling—Mr. Henson nonetheless attempts to establish that he has, in fact,
preserved a counsel-of-choice challenge. This attempt is unavailing. First and
foremost, Mr. Henson contends that Mr. Kerns’s statements in his withdrawal
motion preserved a challenge to the court’s supposed conflict-of-interest
determination and, thus, a challenge based on denial of his counsel of choice. See
Aplt.’s Opening Br. at 25 (“[Mr.] Kerns was clear that he was only withdrawing
due to the district court’s finding of a conflict and its indication he would have to
withdraw unless he obtained waivers. [Mr.] Kerns was clear that he was
objecting to the district court’s ruling and intended to preserve the district court’s
erroneous finding of conflict.”); see also Oral Arg. at 11:01–11:13 (appellant’s
counsel claiming that Mr. Henson had not abandoned his conflict-of-interest issue
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“because Mr. Kerns went so far out of his way to say that he was intending not to
waive”). But it is entirely unclear why or how Mr. Kerns’s bare statements in his
withdrawal motion somehow preserved an otherwise abandoned claim of error.
Indeed, this point merits emphasis: the record before us offers no objective
basis upon which to conclude either that the district court issued any appealable
conflict-of-interest ruling—which could form the basis for Mr. Henson’s counsel-
of-choice claim—or that Mr. Kerns could preserve a challenge to such a purported
conflict-of-interest ruling simply by characterizing the challenge as preserved in
his motion to withdraw. In particular, as to this second point, Mr. Henson does
not cite any legal authority for the proposition that a party can resurrect a waived
issue merely through the ipse dixit of his trial counsel. Cf. United States v.
VanDam, 493 F.3d 1194, 1201 n.4 (10th Cir. 2007) (observing that it would be
“truly Panglossian” if the government could “reimpose” a higher sentencing range
previously rejected by the district court through the sheer power of its arguments
at resentencing), abrogated in part on other grounds by Puckett v. United States,
556 U.S. 129 (2009). Thus, Mr. Kerns’s subjective assessment of whether the
conflict-of-interest issue remained viable is of no moment to our analysis,
especially in light of record evidence showing clear abandonment.
On this same score, Mr. Henson does not put forth a convincing reason for
why Mr. Kerns was not required to do something beyond simply withdrawing in
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order to preserve a challenge regarding the conflict-of-interest issue, upon which
his counsel-of-choice claim turns. Cf. Oral Arg. at 30:15–30:48 (the court
querying whether, even assuming the district court made a ruling on the
conflict-of-interest question, “in order to fully preserve” his challenge to this
ruling, Mr. Kerns needed to “make a record” that, e.g., he found no additional
legal authority on the question or that he explored ameliorative measures beyond
written waivers, but concluded none were feasible); id. at 30:49–31:11 (The
court: “[What] troubles me is the line of reasoning that says that when the court
makes a ruling [counsel simply disagrees with], that [counsel] can just . . .
[withdraw]. Don’t you have to make sure . . . that you’ve locked in [and
preserved] your position?”). Beyond insisting that he had preserved a challenge
to the court’s supposed conflict-of-interest ruling by saying he had done so, Mr.
Kerns, in his withdrawal motion, makes no mention of any non-waiver efforts he
had taken to negate the court’s conflict concerns—such as proposing a taint-team
approach or some other approach agreed to by the parties or offering additional
legal authorities bearing on the conflict-of-interest issue.
Moreover, the timing of Mr. Kerns’s withdrawal motion—which was filed
the day after the court’s hearing, despite the court having given Mr. Kerns
approximately three days, until that Friday, to submit further authority or to
devise ameliorative measures—undercuts an inference that Mr. Kerns gave
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serious consideration to alternatives beyond obtaining written waivers.9 Contrary
to the assertion by appellant’s counsel that Mr. Kerns “went so far out of his way”
not to waive this issue, see Oral Arg. at 11:01–11:13, the record reflects that Mr.
Kerns did the bare minimum—if that—to comply with the district court’s
instructions and attempt to ameliorate any potential conflicts of interest.
Thus, Mr. Henson fails to show how or why Mr. Kerns’s statements—made
in his withdrawal motion—preserved a conflict-of-interest issue for appeal in the
face of objective, countervailing evidence in the record that (1) the district court
had not definitively decided whether a conflict of interest existed or whether a
potential conflict was curable only by furnishing written waivers, and that (2) Mr.
Kerns voluntarily “acted in a manner” that unambiguously “abandoned any
[conflict-of-interest] claim.” See Cruz-Rodriguez, 570 F.3d at 1185 (quoting
Zubia-Torres, 550 F.3d at 1205–06). In particular, Mr. Kerns did not somehow
resurrect any conflict-of-interest issue that he had abandoned by merely
9 Indeed, Mr. Henson’s motion for new trial strongly suggests that
alternatives were available and possibly could have cured potential conflicts
questions raised by the district court—but that Mr. Kerns, for whatever reason,
declined to make use of them. See Aplt.’s App., Doc. 411, at 152–53 (Mem. in
Supp. of Def.’s Mot. for New Trial, filed Dec. 7, 2018) (describing a taint team
approach as “a readily available measure” and faulting the district court for
allegedly “fail[ing] to permit a taint team, limited cross-examination, or the
retention of additional . . . counsel to conduct cross-examination” in lieu of
written waivers, when these measures “could have adequately ameliorated the
risks of the potential conflict without infringing upon Dr. Henson’s right to be
represented by counsel of choice”); see also Oral Arg. at 31:54–32:24.
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inveighing against a purportedly erroneous ruling that the district court, in fact,
never made.
Unaided by Mr. Kerns’s statements, Mr. Henson further contends that the
court confirmed both that it had found a conflict requiring written waivers and
that Mr. Kerns’s withdrawal was not voluntary when it granted Mr. Kerns’s
withdrawal motion “for reasons stated on the record at the July 18, 2017 hearing”
on the government’s conflicts-of-interest motion. Aplt.’s App. at 11; see Aplt.’s
Opening Br. at 25 (“In granting [Mr.] Kerns’s motion to withdraw, the district
court . . . indicated that it was doing so in conformity with i[t]s rulings at the July
17, 2018, hearing.”). Further, Mr. Henson also appears to suggest the court was
under some obligation not to grant Mr. Kerns’s motion if the court had not, in
fact, definitively ruled on the conflict-of-interest question or hinged its conflicts
ruling on the absence of waivers. See id. at 27 (“When the district court granted
[Mr.] Kerns’s motion without any disagreement with its assertions, it
acknowledged that it intended to disqualify [him] in the absence of waivers he did
not obtain. If that was not the case, the district court would have denied the
motion as being based on an incorrect premise.”).
We start with this last point—regarding the court’s ostensible
obligation—finding it unsupported by authority and fundamentally misguided.
Irrespective of whether Mr. Kerns subjectively understood that the court had not
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definitively ruled on the conflict-of-interest question, he expressly requested
relief—i.e., permission to withdraw—by filing a motion. And Mr. Henson does
not explain why—let alone offer any authority demonstrating that—the district
court was obliged to affirmatively correct any misunderstanding that Mr. Kerns
may have harbored about the tentative nature of the court’s conflict-of-interest
assessment before the court granted his requested relief. And we seriously
question whether any controlling authority for such an obligation exists. Cf.
Niemi v. Lasshofer (“Niemi I”), 728 F.3d 1252, 1259 (10th Cir. 2013) (“In our
adversarial system we don’t usually go looking for trouble but rely instead on the
parties to identify the issues we must decide.”); Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 672 (10th Cir. 1998) (“[T]he district courts[] have a limited and
neutral role in the adversarial process, and are wary of becoming advocates who
comb the record of previously available evidence and make a party’s case for
it.”).
More importantly, the court’s minute order granting Mr. Kerns’s
withdrawal motion does not signify or communicate what Mr. Henson claims it
does—i.e., it does not clearly indicate that Mr. Kerns actually was correct in
believing that the court had decided he labored under a conflict of interest that
could be rectified solely through written waivers. Mr. Henson places great weight
on the order’s language, which states that the court granted Mr. Kerns’s motion
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“for reasons stated” during the July 18 hearing on the government’s
conflict-of-interest motion. But Mr. Henson omits from his discussion of the
minute order a later portion of that hearing transcript.
There, in denying Mr. Henson’s separate motion for a continuance, the
court stated the following: “So, I am denying the motion to continue this trial.
[Mr. Henson’s trial] will proceed on Monday, July 24th, unless, Mr. Kerns, you
end up either being removed by me for a conflict of interest, or voluntarily
withdrawing in an effort to allow Dr. Henson to find different counsel.” Case No.
6:16-cr-10018-JTM, Doc. 410, at 12:4-8 (emphasis added). In other words, the
court gave Mr. Kerns the option of withdrawing voluntarily, so that Mr. Henson
could find another attorney. And from the record, it seems likely that this is
precisely what Mr. Kerns did. That is, rather than wait for a definitive ruling on
the conflict-of-interest question, Mr. Kerns withdrew to allow Mr. Henson time
and opportunity to find another lawyer.
Thus, the court’s language in its minute order granting Mr. Kerns’s
withdrawal motion “for reasons stated” at the July 18 hearing could well have
been referencing its comments regarding Mr. Kerns’s potential, voluntary
withdrawal, rather than the court’s assessment of a potential conflict of interest.
In the end, we need not decide what the court meant by this language in its minute
order. Instead, it is enough for us to conclude that Mr. Henson has not
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established that the minute order—in opposition to other record evidence—clearly
evinces that the court had made a definitive ruling on the conflict-of-interest
question or, more specifically, had determined any potential conflict could only
be cured through written waivers.
In sum, we conclude that Mr. Kerns’s voluntary and affirmative withdrawal
of his representation of Mr. Henson abandoned the conflict-of-interest issue
before the district court could definitively rule on it. And, because a court ruling
adverse to Mr. Henson on this issue is a necessary predicate for his counsel-of-
choice claim, Mr. Kern’s action had the effect of depriving Mr. Henson of an
opportunity (i.e., waiving his opportunity) to present this counsel-of-choice claim
on appeal. Stated otherwise, it was Mr. Kerns himself, of his own accord, that
deprived Mr. Henson of his original counsel, not the district court. And it is
beyond peradventure that Mr. Henson must accept the consequences of Mr.
Kerns’s action. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 92 (1990)
(noting that, “[u]nder our system of representative litigation, ‘each party is
deemed bound by the acts of his lawyer-agent’” (quoting Link v. Wabash R.R.
Co., 370 U.S. 626, 634 (1962))); accord Maples v. Thomas, 565 U.S. 266, 280–81
(2012); see also Gripe v. City of Enid, 312 F.3d 1184, 1189 (10th Cir. 2002)
(“Plaintiff argues against the harshness of penalizing him for his attorney’s
conduct. But there is nothing novel here. Those who act through agents are
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customarily bound by their agents’ mistakes. It is no different when the agent is
an attorney.”).10 Accordingly, because Mr. Henson has waived his
counsel-of-choice claim, he is not entitled to a new trial based upon it.
B
10 In this connection, one point bears underscoring: by concluding that
Mr. Henson has waived appellate review of his counsel-of-choice claim, we are
not suggesting that, in the district court, Mr. Kerns waived Mr. Henson’s right to
counsel of choice or that Mr. Henson would be bound by any such waiver.
Rather, what Mr. Kerns waived or abandoned by voluntarily withdrawing as
counsel was any entitlement that Mr. Henson might have had to a definitive
decision by the district court on the conflict-of-interest issue—a decision that was
a necessary predicate for his counsel-of-choice claim. In other words, what Mr.
Kerns waived by voluntarily withdrawing was not one of Mr. Henson’s
rights—whether classified as fundamental or not—but, instead, Mr. Henson’s
opportunity to have the district court rule on the conflict-of-interest question.
And, by so waiving that opportunity, Mr. Kerns effectively failed to preserve (i.e.,
waived) any concomitant opportunity of Mr. Henson to challenge any judicial
denial of his counsel of choice; that is because the district court never had a
chance—due to Mr. Kerns’s voluntary withdrawal—to make a conflict-of-interest
ruling that could have effected such a denial. See New York v. Hill, 528 U.S. 110,
114 (2000) (noting that “[f]or certain fundamental rights, [a] defendant must
personally make an informed waiver,” whereas “[f]or other rights, . . . waiver may
be effected by action of counsel”); Taylor v. Illinois, 484 U.S. 400, 417–18
(1988) (“Although there are basic rights that the attorney cannot waive without
the fully informed and publicly acknowledged consent of the client, the lawyer
has—and must have—full authority to manage the conduct of the trial.” (footnote
omitted)); United States v. Aptt, 354 F.3d 1269, 1282 (10th Cir. 2004) (“[S]ome
rights are firmly in the domain of trial strategy, and can be waived by counsel
even in the face of client disagreement.”).
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In his second issue on appeal, Mr. Henson claims he is entitled to a new
trial based on the district court’s purported error in giving a “deliberate
ignorance” or “willful blindness” instruction to the jury. The specific instruction
Mr. Henson challenges is Jury Instruction No. 41, which reads as follows:
The term “knowingly” means that defendant realized what he was
doing and was aware of the nature of his conduct and did not act
through ignorance, mistake, or accident.
When the word “knowingly” is used in these instructions, it
means that the act was done voluntarily and intentionally, and not
because of mistake or accident. Although knowledge on the part
of the defendant cannot be established merely by demonstrating
that the defendant was negligent, careless, or foolish, knowledge
can be inferred if the defendant deliberately blinded himself or
herself to the existence of a fact. Knowledge can be inferred if
the defendant was aware of a high probability of the existence of
the fact in question, unless the defendant did not actually believe
the fact in question.
Aplt.’s App., Doc. 368, at 128 (Jury Instrs., filed Oct. 23, 2018) (emphasis
added).
Mr. Henson does not argue that this jury instruction misstates the law.
Rather, he argues that “the government failed to present sufficient evidence that
[he] had a suspicion falling short of actual knowledge or that he took a substantial
step to avoid confirming that suspicion”—in other words, that the government
failed to proffer sufficient evidence to support instructing the jury on deliberate
ignorance or willful blindness as a theory of knowledge. Aplt.’s Opening Br. at
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29; see, e.g., United States v. Little, 829 F.3d 1177, 1185 (10th Cir. 2016) (“[A]
deliberate ignorance instruction is proper . . . when evidence,” viewed “in the
light most favorable to the government,” “has been presented showing the
defendant purposely contrived to avoid learning the truth.” (alteration in original)
(quoting United States v. Bornfield, 145 F.3d 1123, 1129 (10th Cir. 1998))). Mr.
Henson contends that, without sufficient, supporting evidence, the instruction
“could only have worked to confuse the jury and reduce the government’s burden
of establishing the required mental state.” Aplt.’s Opening Br. at 29–30. Mr.
Henson contends further that the effect of the allegedly erroneous instruction was
not harmless. See id. at 37 (“A jury would be entirely reasonable in finding that
Dr. Henson did not actually know that the prescriptions he wrote were either
outside the scope of professional practice or without a legitimate medical
purpose. Thus, harmlessness cannot be proved beyond a reasonable doubt.”).
Accordingly, Mr. Henson asserts his instructional error claim necessitates
reversal.
Here, again, we do not reach the merits of this issue. As with his
counsel-of-choice claim, Mr. Henson’s instructional error claim suffers from a
“fatal flaw.” United States v. Hillman, 642 F.3d 929, 939 (10th Cir. 2011).
Specifically, while Mr. Henson challenges the sufficiency of the evidence
supporting a deliberate ignorance theory of knowledge, he does not challenge the
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sufficiency of the evidence supporting a theory of actual knowledge, which the
instruction in question also addressed. And “because he does not challenge the
sufficiency of the evidence on a theory of actual knowledge, our case law
precludes reversal of [Mr. Henson’s] conviction[s] on the basis of insufficient
evidence supporting an alternate theory of deliberate ignorance.” Id. (emphasis
added); see also Aplee.’s Resp. Br. at 40–41 (noting that Mr. Henson “is not
entitled to review of [his instructional error] claim on the merits because the
district court instructed the jury that it could convict [him] if he had actual
knowledge that his conduct was illegal, and he fails to challenge the sufficiency
of the evidence on a theory of actual knowledge, which Instruction 41 also
addressed”).
Two of our cases are especially on point. First, in United States v. Ayon
Corrales, the defendant challenged a “knowledge” jury instruction quite similar to
Instruction 41 in Mr. Henson’s case. See 608 F.3d 654, 657–58 (10th Cir. 2010).
That instruction “addressed both actual knowledge and deliberate ignorance” and
was modeled on this court’s Pattern Criminal Jury Instruction No. 1.37. Compare
id. at 657 (defining “knowingly” as meaning, inter alia, “that [an] act was done
voluntarily and intentionally,” and that “knowledge can be inferred if the
defendant deliberately blinded himself to the existence of a fact”), with 10th Cir.,
Criminal Pattern Jury Instr. No. 1.37 (Knowingly—Deliberate Ignorance) (2d ed.,
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updated Feb. 2018) (“When the word ‘knowingly’ is used in these instructions, it
means that the act was done voluntarily and intentionally, and not because of
mistake or accident. Although knowledge on the part of the defendant cannot be
established merely by demonstrating that the defendant was negligent, careless, or
foolish, knowledge can be inferred if the defendant deliberately blinded himself
to the existence of a fact. Knowledge can be inferred if the defendant was aware
of a high probability of the existence of [the fact in question], unless the
defendant did not actually believe [the fact in question].” (brackets in original)).
Like Mr. Henson, the defendant in Ayon Corrales did not argue that the
instruction “misstate[d] the law,” but rather “contend[ed] that there was
insufficient evidence at trial to support a jury finding of deliberate ignorance, so
an instruction on that theory was improper. . . . absent supporting evidence.”
Ayon Corrales, 608 F.3d at 657. But we declined to “determine . . . whether there
was sufficient evidence of deliberate ignorance” because, just like Mr. Henson,
the Ayon Corrales defendant “d[id] not challenge the sufficiency of the evidence
to support a conviction based on a finding of actual knowledge”—and “when
there is sufficient evidence to support a conviction on one theory of guilt on
which the jury was properly instructed, we will not reverse the conviction on the
ground that there was insufficient evidence to convict on an alternative ground on
which the jury was instructed.” Id.; see id. at 657–58 (explaining that this
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principle was “set forth by the Supreme Court” in Griffin v. United States, 502
U.S. 46 (1991), where the Court held that “when an offense can be committed by
two or more means, a guilty verdict will be sustained when the evidence is
sufficient to support one of the means, even if the evidence will not support any
alternative means”); see also United States v. Hanzlicek, 187 F.3d 1228, 1234–36
(10th Cir. 1999) (holding in the alternative that, “[e]ven were [we] to conclude
that the evidence adduced at trial was not sufficient to support the giving of [a]
deliberate ignorance instruction, the error would be harmless” because, inter alia,
“the jury was instructed on alternate theories of actual knowledge and deliberate
ignorance,” “the deliberate ignorance instruction given properly stated the law,”
and “there was sufficient . . . evidence of actual knowledge”—and, therefore, the
“district court d[id] not commit reversible error whe[n] it submit[ted] a
properly-defined, although factually unsupported, legal theory to the jury along
with a properly supported basis of liability”). Thus, in Ayon Corrales, “[b]ecause
there was indisputably sufficient evidence for the jury to find that [the defendant]
had actual knowledge”—and, to put a finer point on it, because the defendant
affirmatively failed to challenge the sufficiency of the evidence supporting a
theory of actual knowledge—we rejected the defendant’s instructional error
claim. 608 F.3d at 658.
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One year later, we again “considered the interplay between challenges to a
deliberate ignorance instruction and actual knowledge for purposes of appellate
review.” Hillman, 642 F.3d at 939. Relying on and discussing Ayon Corrales,
the Hillman court “decline[d] review of the sufficiency of the evidence of
deliberate ignorance” because the defendant “d[id] not challenge the sufficiency
of the evidence supporting the actual knowledge [jury] instruction or the language
of the actual knowledge instruction itself.” Id. at 940. As the defendant’s
position was “the same as the one we rejected in [Ayon] Corrales, and [as] he
ha[d] failed to provide any reasonable basis on which to distinguish his case,” we
rejected his instructional error challenge and affirmed his conviction. Id.
The government cites Hillman and Ayon Corrales as barring appellate
review of Mr. Henson’s instructional error claim. See Aplee.’s Resp. Br. at 41
(“[Mr.] Henson’s failure to [challenge the sufficiency of the evidence on a theory
of actual knowledge] forecloses him from obtaining review on the merits of his
claim that the government presented insufficient evidence of his deliberate
ignorance to justify giving the instruction.”). Having made no mention of these
cases—or, more broadly, the sufficiency of the government’s evidence supporting
a theory of liability based on actual knowledge—in his opening brief, Mr. Henson
strains, unsuccessfully, in his reply brief to somehow distinguish his case and
evade Hillman’s and Ayon Corrales’s clear holdings. But these cases plainly
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control here. Moreover, at no point does Mr. Henson level a challenge to the
sufficiency of the government’s evidence of actual knowledge.
Accordingly, because Mr. Henson fails to contest the sufficiency of the
government’s evidence of his actual knowledge, we decline to review Mr.
Henson’s instructional error claim based on the purported insufficiency of the
government’s deliberate ignorance evidence, pursuant to our decisions in Hillman
and Ayon Corrales.
C
In his third issue on appeal, Mr. Henson argues that his life sentence is
unreasonable. As with our review of Mr. Henson’s counsel-of-choice claim, we
begin by reviewing the salient procedural background—here, Mr. Henson’s
sentencing hearing in the district court—and then consider his arguments
challenging the reasonableness of his sentence. We ultimately conclude Mr.
Henson’s sentence is reasonable in all relevant respects.
1
Following his convictions, Mr. Henson was sentenced for his crimes on
March 8, 2019. At Mr. Henson’s sentencing hearing, the court first took up
objections to his Presentence Investigation Report (“PSR”), sustaining some and
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overruling others; this resulted in Mr. Henson receiving a total offense level of
42, a criminal history category of I, and an advisory guidelines range of 360
months to life for his crimes. Aplt.’s App., Doc. 465, at 261 (Tr. Sentencing
Hr’g, dated Mar. 8, 2019). The district court next heard the parties’ positions on
what sentence Mr. Henson should receive. The government recommended a
within-guidelines life sentence, primarily based on Count 17, which related to Mr.
Henson’s role in causing the death of Nick McGovern, one of his former patients.
Mr. Henson, on the other hand, sought a below-guidelines sentence of twenty
years, the statutory minimum, maintaining that a greater sentence would be
“[un]necessary” given the “model life” Mr. Henson led “[o]utside of this case.”
Id. at 262–63; see id. at 262–65 (Mr. Henson’s counsel highlighting, inter alia,
Mr. Henson’s “dedicat[ion] . . . to his career, to his faith, and to his community”;
his mission trips; and his purported lack of ill intent or malice, and arguing that,
in light of these factors, “[t]wenty years [in prison] is more than enough to
incapacitate, to rehabilitate, to deter,” and “to recognize the seriousness of [Mr.
Henson’s] offense[s]”). Mr. Henson also spoke briefly on his own behalf:
Your Honor, I trained hard to become a physician. I have been
recognized as a well-trained physician and I’ve only had one goal
in life as a physician, [which] was to be able to take excellent
care of patients and to increase their functionality. That’s been
my only goal in medicine and bringing care to the underserved,
both in my local community as well as world-wide because not
everybody has the opportunity to receive the care that they need.
Thank you.
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Id. at 266–67.
After hearing several victim statements, the district court announced its
sentencing decision. The court began by acknowledging it was “required to
impose a sentence . . . sufficient but not greater than necessary to comply with the
purposes of sentencing that are identified by federal statute . . ., [and to] consider
not only the sentencing guidelines, . . . [but] aggravating and mitigating factors
[as well].” Id. at 284–85. The court noted it “also considered the statements of
the parties, the [PSR], . . . [and] letters.” Id. at 285. The court found Mr.
Henson’s guidelines range “correctly calculated,” in light of his offense level and
criminal history category, and “appropriate in this case.” Id.
The court then made the following remarks, which form the key basis for
Mr. Henson’s challenge to the reasonableness of his sentence. Given their
centrality to his challenge, we quote them at some length:
Having considered all of the stated factors and the advisory
guidelines, the nature and circumstances of the offense, Dr.
Henson’s history and characteristics, I am about to announce and
impose a sentence. I do have a couple of observations, having
dealt with this case now for a couple of years and having been
present at the trial. And no case exists in a vacuum and . . . I
believe every person is more than the worst thing they’ve ever
done in their lives; that everyone is entitled to dignity and respect
when they come in to this kind of situation, and that that ought
to be a consideration in sentencing.
And, Dr. Henson, I have made every effort to afford you at every
opportunity the dignity and respect that I would any person,
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whatever the charge has been, or whatever the charges have been,
and as I listen, you saying that all you’ve ever really wanted to
do is to take care of people, and to increase their functionality,
and that may have been what you were attempting to do
throughout your practice, but it is very difficult to reconcile those
statements with your conduct throughout this case.
You know, as I have thought about people that I have seen over
the years, and there are probably no more than three or four
people that I thought were just absolutely filled with evil that
were absolutely beyond redemption, but in your case . . . I think
in some respects what I have seen from you is worse, in that you
seem to not really understand. I really don’t think that you get it.
I think in some respects you’re numb to what you were doing
over time. The quantities of pills that you were prescribing, the
combinations of pills that you were prescribing, and the
combinations even with lesser quantities had deadly
consequences, and that’s why Nick McGovern ended up where he
is. It was Alprazolam and Methadone, the combination is what
ultimately did him in, and I just wonder whether your practices
really have had any impact on you.
It seems you’re still saying, Why am I here? What have I done
wrong? What did I do? And that question has been answered in
this case over and over, and over again by witness after witness,
by the experts, and the jury, frankly, in its verdict answered that
question over and over, and over again. And it is as if for as
bright as you clearly are, for the good things that you have done
in your life -- and I’m not overlooking those -- that you seem to
be missing some kind of a piece that allows you to tap into other
people’s feelings and the[ir] suffering[;] . . . focus[ing] more on,
Why is this happening to me, than the impact that you’ve had on
others.
And we are now at a point where the most recent literature
indicates that worldwide more than one in every five persons
over the age of 14 is addicted to drugs. And that is mind
boggling. More than one out of every five persons over the age
of 14 is addicted to drugs. And so many of the people that you
were seeing over time were addicts. And I never saw an effort
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with any -- there was one patient of yours that did come in,
though, and talk about all the good that you had done for him,
and we recognize that, and maybe that’s the way things started
with you when you got into the pain medication area, and maybe
over time you just lost either the ability to look at each patient
individually and what they needed, and what horse they were on,
maybe you had too many of them to be able to do that, or there
may have been some other reason. I never fully understood it.
You’ve indicated that you probably didn’t pay as much attention
to some of these folks as you should have, and there’s no
question about that. You didn’t pay as much attention as you
should have to virtually every patient over the past year, or the
last year or so that you were in practice. And I take all of that
into account in trying to determine what an appropriate sentence
is in your case.
This is -- and I have sentenced people to life before, but they
were people who took guns and shot people. They were not
people who wrote out prescriptions resulting in death. It was just
there was a step removed in the process. I have sentenced people
to lengthy sentences short of life as well, but I have never had a
case like yours. And this has been a very, very difficult case, I
think for everybody who has been involved. I thought your
lawyers did a tremendous job of defending you in this trial and
I think that they had a very difficult job for a couple of reasons:
[f]irst of all, because the evidence was just overwhelming; and
[s]econd of all, I think, Dr. Henson, that you still think you’re the
smartest person in the room and that you would be in a position
to sway a jury if they just listened to what you had to say.
However, the things that you said didn’t add up in a lot of
respects.
[Your counsel] indicated that you didn’t do this for money, but
I remember your testimony that you raised your fee from $50 to
$300 because you had to pay rent on your office. [Your counsel]
indicated that you did not make Nick McGovern take the pills but
in point of fact, you put him in a position with your prescriptions
where he had to take those pills just in an effort to try and get
through the day. It was creating more pain; not taking more
away. And the whole approach of just giving people whatever
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they said they needed for pain, you were exacerbating a problem,
you were not treating it. And that being the case, and looking at
the consequences, this is the sentence that I intend to impose.
Id. at 286–91 (line breaks omitted).
Following these remarks, the court sentenced Mr. Henson to terms of life
imprisonment for Count 17; 240 months’ imprisonment for each of Counts 1
through 14, 16, and 26 through 31; 60 months’ imprisonment on Count 19; and 12
months’ imprisonment on Count 20—all to run concurrently. Id. at 291. Mr.
Henson’s life sentence fell within his advisory guidelines range. The court stated
that it “believe[d] this [life] sentence is as sufficient . . . a sentence that [it] can
give . . . but is not greater than necessary to reflect the seriousness of [Mr.
Henson’s] offenses, to promote respect for the law, and to provide just
punishment for the offense,” pursuant to 18 U.S.C. § 3553(a)(2)(A). Id. As well,
the court found the sentence “should afford adequate deterrence to criminal
conduct and protect the public from further crimes,” in accordance with
§ 3553(a)(2)(B) and (C). Id. The court also observed that Mr. Henson’s
“imprisonment . . . w[ould] allow [him] the opportunity to receive correctional
treatment in an effective manner, and . . . assist with community reintegration, if
[he is] ever released,” in accord with § 3553(a)(2)(D). Id. at 291–92.
After announcing its sentence, the district court also revoked Mr. Henson’s
bond, to which his counsel objected. Id. at 292–93. However, when asked by the
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court in closing its hearing if he had “anything further on behalf of [Mr.] Henson
here today,” Mr. Henson’s counsel responded, “No, Your Honor.” Id. at 298.
2
a
On appeal, we review Mr. Henson’s sentence for “reasonableness under an
abuse-of-discretion standard.” Peugh v. United States, 569 U.S. 530, 537 (2013);
accord United States v. Nkome, 987 F.3d 1262, 1268 (10th Cir. 2021); see also
United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (“[W]e review the
reasonableness of sentencing decisions, ‘whether inside, just outside, or
significantly outside the Guidelines range[,] under a deferential
abuse-of-discretion standard.’” (second alteration in original) (quoting Gall v.
United States, 552 U.S. 38, 41 (2007))).
“Our appellate review for reasonableness includes both a procedural
component, encompassing the method by which a sentence was calculated, as well
as a substantive component, which relates to the length of the resulting sentence.”
United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008); see United States v.
Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (“Reasonableness review is a
two-step process comprising a procedural and a substantive component.” (quoting
United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008))); see also
United States v. Martinez-Barragan, 545 F.3d 894, 898 (10th Cir. 2008) (noting
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that our reasonableness review “has both procedural and substantive
dimensions”).11
“First, we must ‘ensure that the district court committed no significant
procedural error,’” United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011)
(quoting Gall, 552 U.S. at 51), which entails “consider[ing] ‘whether the district
court committed any error in calculating or explaining the sentence,’” United
States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019) (quoting Friedman, 554
F.3d at 1307), cert. denied, 140 S. Ct. 276 (2019). As relevant here, “[g]enerally,
a district court’s use of an improper factor invokes procedural review.” United
States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009); see Smart, 518 F.3d at 803
(“[I]f a district court bases a sentence on a factor not within the categories set
forth in § 3553(a), this would indeed be one form of procedural error.”).
11 We have noted that, “[t]hough the overarching standard for our
review of the procedural reasonableness of the [district] court’s sentence is abuse
of discretion, ‘[t]his standard is not monolithic.’” Nkome, 987 F.3d at 1268 (third
alteration in original) (quoting United States v. Arias-Mercedes, 901 F.3d 1, 5 (1st
Cir. 2018)). Rather, “[w]hen a party challenges a sentence for procedural
reasonableness, our standard of review is ordinarily abuse of discretion, under
which we review de novo the district court’s legal conclusions regarding the
guidelines and review its factual findings for clear error.” United States v. Gantt,
679 F.3d 1240, 1246 (10th Cir. 2012); accord United States v. Gieswein, 887 F.3d
1054, 1058 (10th Cir. 2018); cf. United States v. McComb, 519 F.3d 1049, 1054
n.4 (10th Cir. 2007) (explaining that our “abuse of discretion standard consists of
component parts, affording greater deference to findings of fact (clearly
erroneous) than to conclusions of law (erroneous),” and that a district court’s
factual findings “have always been afforded great deference” based on the court’s
“role, position, and expertise . . . [in] mak[ing] factual determinations”).
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If we conclude “the district court’s decision is ‘procedurally sound,’ we
[then] move on to the second step and ‘consider the substantive reasonableness of
the sentence imposed,’” Lente, 647 F.3d at 1030 (quoting Gall, 552 U.S. at 51),
which entails considering “whether the length of the sentence is reasonable given
all the circumstances of the case in light of the factors set forth in 18 U.S.C.
§ 3553(a),” Cookson, 922 F.3d at 1091 (quoting Friedman, 554 F.3d at 1307).12
Ultimately, the district court’s “mandate is to impose a sentence” in line with the
“parsimony principle”: i.e., the court’s chosen sentence must be “‘sufficient, but
not greater than necessary, to comply with the purposes’ of criminal punishment,
as expressed in § 3553(a)(2).” Martinez-Barragan, 545 F.3d at 904 (quoting 18
U.S.C. § 3553(a)); see also United States v. Smith, 756 F.3d 1179, 1183 (10th Cir.
2014) (“In what’s often called its parsimony principle, § 3553(a) directs courts to
‘impose a sentence sufficient, but not greater than necessary, to comply’ with
12 The § 3553(a) factors a court must consider include: (1) “the nature
and circumstances of the offense and the history and characteristics of the
defendant”; (2) “the need for the sentence imposed” to “reflect the seriousness of
the offense,” “promote respect for the law,” “provide just punishment for the
offense,” “afford adequate deterrence to criminal conduct,” “protect the public
from further crimes of the defendant,” and “provide the defendant” with services
related to rehabilitation; (3) “the kinds of sentences available”; (4) the Sentencing
Guidelines; (5) “any pertinent policy statement[s]” from the Sentencing
Commission; (6) “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct”;
and (7) “the need to provide restitution to any victims of the offense.” 18 U.S.C.
§ 3553(a)(1)–(7); see also United States v. Barnes, 890 F.3d 910, 915 (10th Cir.
2018).
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several . . . policy goals[, such as] just punishment, adequate deterrence, and
protection of the public.”).
Mr. Henson argues that his life sentence is both procedurally and
substantively unreasonable. On the procedural front, Mr. Henson faults the
district court for (1) “mention[ing] the [§ 3553(a)] factors . . . only briefly”; (2)
appearing to justify its sentencing decision based on improper and arbitrary
factors, such as Mr. Henson’s alleged indifference and perceived smugness, as
well as “the number of people world-wide that are addicted to narcotics”—or,
alternatively, not indicating what role, if any, these factors played in its
sentencing decision; and (3) failing to “explain why [his] requested sentence (20
years) would be insufficient to satisfy the [§ 3553(a)] factors.” Aplt.’s Opening
Br. at 38–39. On the substantive front, Mr. Henson recycles many of these
objections, in relatively generic fashion, while also arguing, in similarly generic
and cursory terms, that his life sentence is “entirely unreasonable” in light of the
§ 3553(a) factors and his charitable acts. Id. at 42.13
13 Mr. Henson asserts as forms of procedural error, inter alia, the
district court’s failure to adequately explain its sentencing decision, its purported
reliance on improper or arbitrary factors in making its sentencing decision, and its
alleged disregard of the § 3553(a) factors and his requested, below-guidelines
sentence. In questioning the substantive reasonableness of his sentence, Mr.
Henson rehashes, in one form or another, these same errors, while also objecting,
generally, to the necessity of a life sentence. Procedural reasonableness typically
concerns the district court’s underlying calculation and explanation supporting its
(continued...)
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13(...continued)
sentencing decision, encompassing questions including whether the court
explained its decision in sufficient detail, erroneously treated the guidelines as
mandatory, or impermissibly ignored the statutory sentencing factors; whereas,
substantive reasonableness typically concerns the district court’s justification for
its sentencing decision, encompassing related questions such as whether the
chosen sentence’s length is reasonable in light of the totality of the circumstances
or whether the court abused its discretion in how it weighed and balanced the
§ 3553(a) factors. See, e.g., Nkome, 987 F.3d at 1268 (“The procedural
component [of our reasonableness review] concerns how the district court
calculated and explained the sentence, whereas the substantive component
concerns whether the length of the sentence is reasonable in light of the statutory
factors under 18 U.S.C. § 3553(a).” (quoting United States v. Adams, 751 F.3d
1175, 1181 (10th Cir. 2014))); accord Friedman, 554 F.3d at 1307; United States
v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007); see also Smart, 518 F.3d at
803–04 (identifying, as forms of procedural error, “failing to consider the
§ 3553(a) factors,” “failing to adequately explain the chosen sentence,” and
“consideration by the district court of legally erroneous factors,” and contrasting
these with “[a] challenge to the sufficiency of the § 3553(a) justifications relied
on by the district court,” which “implicates the substantive reasonableness of the
resulting sentence” (quoting Gall, 552 U.S. at 51)).
That said, we have acknowledged that, while courts and parties alike
“should avoid unduly blurring the line between substantive and procedural
reasonableness,” there is “some unavoidable overlap.” Barnes, 890 F.3d at 917;
see also United States v. Liou, 491 F.3d 334, 337 (6th Cir. 2007) (describing “the
border between factors properly considered ‘substantive’ and those properly
considered ‘procedural’” as “blurry, if not porous”). Indeed, the “distinction
between procedural and substantive reasonableness is a significant but not
necessarily sharp one, especially as it concerns a sentencing court’s explanation
for the sentence,” which “serves both procedural and substantive functions.”
Barnes, 890 F.3d at at 916–17; see also Cookson, 922 F.3d at 1091 (observing
that the distinction between procedural and substantive reasonableness “turns
murky” when considering the district court’s explanation for its sentencing
decision because “we rely on the . . . court’s procedurally-required explanation in
order to conduct ‘meaningful appellate review’ of a sentence’s substantive
reasonableness” (quoting Gall, 552 U.S. at 50)). For example, “just as a court’s
(continued...)
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b
Before delving into Mr. Henson’s arguments, we stress the significant
hurdles he faces in establishing that his sentence is unreasonable. At a baseline
level, our review of a district court’s sentencing decisions is deferential. See,
e.g., Smart, 518 F.3d at 805–06 (noting that “it has been well settled that we
review a district court’s sentencing decisions solely for abuse of discretion,”
which demands “substantial deference to district courts”); see also United States
v. Angel-Guzman, 506 F.3d 1007, 1015 (10th Cir. 2007) (noting, in the context of
13(...continued)
consideration of the § 3553(a) factors is a procedural requirement, so,” too, “is its
explanation of how those factors apply”; similarly, “the content of the district
court’s explanation is relevant to whether the length of the sentence is
substantively reasonable,” as the court’s chosen sentence “is more likely to be
within the bounds of reasonable choice when the court has provided a cogent and
reasonable explanation for it.” Barnes, 890 F.3d at 917; see also Cookson, 922
F.3d at 1091–92.
While Mr. Henson has characterized the bulk of his arguments as
challenging the procedural reasonableness of his life sentence, some of these
arguments “blur the line between procedural and substantive reasonableness.”
United States v. Sanchez-Leon, 764 F.3d 1248, 1268 n.15 (10th Cir. 2014) (noting
that “procedural error is the ‘fail[ure] . . . to consider all the relevant factors,’
whereas substantive error is when the district court ‘impos[es] a sentence that
does not fairly reflect those factors’” (alterations and omission in original)
(quoting United States v. Lopez-Macias, 661 F.3d 485, 489 n.3 (10th Cir. 2011))).
Thus, although we follow Mr. Henson’s lead in structuring our consideration of
his challenge to his sentence, we recognize that certain of his arguments could
implicate either the procedural or substantive component of our overarching
reasonableness inquiry, irrespective of Mr. Henson’s characterizations.
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a substantive reasonableness inquiry, that “[w]e have always regarded appellate
review of sentencing decisions as ‘deferential’” (quoting United States v. Kristl,
437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam))); cf. McComb, 519 F.3d at
1053 (discussing the “congruence between the ‘abuse of discretion’ standard of
review and our longstanding ‘reasonableness’ test”).
This deferential posture makes sense, as “there are perhaps few arenas
where the range of rationally permissible choices is as large as it is in sentencing,
‘a task calling on a district court’s unique familiarity with the facts and
circumstances of a case and its judgment in balancing a host of incommensurate
and disparate considerations, ranging from the degree of the defendant’s
cooperation and remorse to the need for deterring potential future offenders.’”
McComb, 519 F.3d at 1053–54 (quoting United States v. Ruiz-Terrazas, 477 F.3d
1196, 1201 (10th Cir. 2007)); see Gall, 552 U.S. at 51 (highlighting the
“[p]ractical considerations” warranting abuse-of-discretion review for sentencing
decisions); cf. United States v. Booker, 543 U.S. 220, 233 (2005) (“We have never
doubted the authority of a judge to exercise broad discretion in imposing a
sentence within a statutory range.”).
But Mr. Henson faces further, formidable barriers to success beyond our
baseline standard of review. As noted above, Mr. Henson’s life sentence falls
within the advisory guidelines range for his crimes—and, importantly, Mr.
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Henson does not claim on appeal that the district court incorrectly calculated
those guidelines. Consequently, our review of Mr. Henson’s sentencing challenge
is “circumscribed” in two, related respects. See McComb, 519 F.3d at 1053.
First, as to Mr. Henson’s arguments that his sentence is procedurally
unreasonable, “[w]e have emphasized repeatedly . . . that, when imposing a
sentence within the properly calculated Guidelines range,” (1) a district court
need provide “only ‘a general statement noting the appropriate guideline range
and how it was calculated’”; (2) such statement “need involve no ‘ritualistic
incantation to establish consideration of a legal issue’” or “‘recit[ation of] any
magic words’ to prove that [the court] considered the various factors Congress
instructed it to consider”; and, more broadly, (3) we will only “step in and find
error when the record gives us reason to think that our ordinary . . . presumption
that the district court knew and applied the law is misplaced.” Ruiz-Terrazas, 477
F.3d at 1202 (quoting United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th
Cir. 2006)); accord United States v. Chavez, 723 F.3d 1226, 1232 (10th Cir.
2013); United States v. Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir. 2007);
see also Rita v. United States, 551 U.S. 338, 356–57 (2007) (“[W]hen a judge
decides simply to apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation. Circumstances may well make clear that
the judge rests his decision upon the [Sentencing] Commission’s own reasoning
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that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other
congressional mandates) in the typical case, and that the judge has found that the
case before him is typical. Unless a party contests the Guidelines sentence
generally under § 3553(a) . . . the judge normally need say no more.”).
Second, as to Mr. Henson’s arguments that his sentence is substantively
unreasonable, we will reverse a district court’s sentencing decision under our
traditional, abuse-of-discretion standard only where the sentence “exceeded the
bounds of permissible choice” or was “arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Barnes, 890 F.3d 910, 915 (10th Cir.
2018) (first quoting McComb, 519 F.3d at 1053, then quoting United States v.
DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017)); see United States v. Sanchez-
Leon, 764 F.3d 1248, 1267 (10th Cir. 2014) (“We find an abuse of discretion
[with regard to a district court’s sentencing decision] only if the district court was
‘arbitrary, capricious, whimsical, or manifestly unreasonable’ when it weighed
‘the permissible § 3553(a) factors in light of the totality of the circumstances.’”
(quoting Sayad, 589 F.3d at 1116, 1118)); see also United States v. Reyes-
Alfonso, 653 F.3d 1137, 1145 (10th Cir. 2011) (“[I]n many cases there will be a
range of possible outcomes the facts and law at issue can fairly support; rather
than pick and choose among them ourselves, we will defer to the district court’s
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judgment so long as it falls within the realm of these rationally available
choices.” (alteration in original) (quoting McComb, 519 F.3d at 1053)).
But for defendants like Mr. Henson, who received a within-guidelines
sentence, showing substantive unreasonableness is harder still: “[w]e ‘presume a
[within-guidelines] sentence is reasonable,’” and Mr. Henson “bears the burden of
rebutting the presumption.” United States v. Miller, 978 F.3d 746, 754 (10th Cir.
2020) (emphasis added) (quoting Chavez, 723 F.3d at 1233)); see Sanchez-Leon,
764 F.3d at 1267 (stating that, when a defendant challenges his within-guidelines
sentence, “we must reject his claim of substantive unreasonableness unless he can
overcome the presumption that the sentence was reasonable”); see also McComb,
519 F.3d at 1053 (explaining that a “presumption on appeal is permissible
because, among other things, in adopting a Guidelines-based sentence the district
court necessarily will have come to the same conclusion as the Sentencing
Commission about the proper sentence for the case at hand,” and this
“concurrence between the Sentencing Commission’s ‘wholesale’ judgment and
the district court’s independent ‘retail’ judgment . . . is strong evidence of the
reasonableness of the ultimate sentence imposed” (quoting Rita, 551 U.S. at
348)); cf. Angel-Guzman, 506 F.3d at 1013 (“A sentencing formula produced by a
deliberative, quasi-legislative body [i.e., the Sentencing Commission], applied to
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the specific facts of each case by a competent arbiter [i.e., the district court], will
seldom require correcting.”).
Thus, we review the reasonableness of Mr. Henson’s sentence with these
principles in mind: most significantly, that we defer to district court sentencing
decisions, as a general matter; that the district court was not obligated to say
much in justifying its application of the guidelines to Mr. Henson, as a procedural
matter; and that we presume Mr. Henson’s sentence is reasonable, as a substantive
matter, unless he rebuts that presumption. Having clarified our analytical
backdrop, we proceed below by first considering Mr. Henson’s procedural
arguments, finding no error on this front. We then assess whether Mr. Henson
rebuts the presumption that his sentence is substantively reasonable, determining
that he has not. Therefore, we ultimately conclude Mr. Henson’s within-
guidelines life sentence is procedurally and substantively reasonable and,
accordingly, affirm the district court’s sentencing decision.
3
a
We begin by considering Mr. Henson’s challenge to the procedural
reasonableness of his sentence. In assessing whether the district court committed
“significant procedural error” in calculating and imposing a sentence of
imprisonment, we consider whether the court, inter alia, “fail[ed] to calculate (or
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improperly calculat[ed]) the Guidelines range, treat[ed] the Guidelines as
mandatory, fail[ed] to consider the § 3553(a) factors, select[ed] a sentence based
on clearly erroneous facts, or fail[ed] to adequately explain the chosen sentence.”
Gall, 552 U.S. at 51; accord Lente, 647 F.3d at 1030. Recall, as well, that
“[g]enerally” the question of whether a district court employed “an improper
factor invokes procedural review.” Sayad, 589 F.3d at 1116. As discussed above,
the district court “must provide only a general statement of its reasons” for
imposing a within-guidelines sentence, and it “need not explicitly refer to either
the § 3553(a) factors or respond to ‘every argument for leniency that it rejects in
arriving at a reasonable sentence’” to avoid committing procedural error.
Martinez-Barragan, 545 F.3d at 903 (quoting United States v. Jarrillo-Luna, 478
F.3d 1226, 1229 (10th Cir. 2007), overruled on other grounds by United States v.
Lopez-Macias, 661 F.3d 485 (10th Cir. 2011)).
Mr. Henson’s procedural reasonableness challenge—already facing long
odds—“suffers the distinct [and additional] disadvantage of starting at least a few
paces back from the block.” Richison, 634 F.3d at 1127. That is, because Mr.
Henson failed to contemporaneously object to the district court’s explanation of
its sentencing decision, he has forfeited any challenge to the procedural
reasonableness of his sentence—and, as the government rightly points out, we
will therefore review such a challenge for, at most, plain error. See Aplee.’s
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Resp. Br. at 55 (arguing that, “[b]ecause [Mr.] Henson did not contemporaneously
object to the adequacy of the district court’s explanation for the sentence . . .,
[our] review is for plain error”).
Our caselaw amply supports the imposition of plain-error review where a
defendant fails to lodge an objection to the court’s explanation at the time of
sentencing. See, e.g., United States v. Wireman, 849 F.3d 956, 961–62 (10th Cir.
2017) (reviewing a defendant’s challenge to the procedural reasonableness of his
sentence for plain error because he failed to “object to the district court’s alleged
lack of explanation even though the district court explicitly asked him if he had
‘anything further,’” and under our precedents, a defendant “must . . .
contemporaneously object in the district court to ‘the method by which the . . .
court arrived at a sentence, including arguments that the sentencing court failed to
explain adequately the sentence imposed,’ if he . . . hopes to avoid plain error
review on appeal of any alleged procedural flaw” (quoting United States v.
Romero, 491 F.3d 1173, 1176–77 (10th Cir. 2007))); United States v. Marquez,
833 F.3d 1217, 1220 (10th Cir. 2016) (“Because [the defendant’s] counsel did not
raise a procedural objection at the sentencing hearing, his procedural challenge is
reviewed for plain error.”); Ruiz-Terrazas, 477 F.3d at 1199 (“Because [the
defendant] did not object to the procedure by which his sentence was determined
and explained, we may reverse the district court’s judgment only in the presence
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of plain error.”); see also United States v. Uscanga-Mora, 562 F.3d 1289, 1293
(10th Cir. 2009) (noting “we have consistently held plain error review obtains
when counsel fails to render a contemporaneous objection to the procedural
adequacy of a district court’s statement of reasons at sentencing” and explaining
why such review “is compelled both by our precedent and sound reason”).
Mr. Henson contends that plain-error review does not apply here because he
was never given an opportunity to lodge an objection to the district court’s
explanation for his sentence, but this claim is belied by the record. Notably, the
court closed the sentencing hearing—after it had announced Mr. Henson’s
sentence—by asking defense counsel whether he had “anything further on behalf
of [Mr.] Henson,” to which counsel replied, “No, Your Honor.” Aplt.’s App. at
298. Tellingly, counsel felt no compunctions about lodging an objection,
unprompted, to the court’s revocation of Mr. Henson’s bond mere moments
earlier. See id. at 293 (The district court: “I am revoking [Mr. Henson’s]
bond. . . .” Defense counsel: “And, Your Honor, we would object to that and ask
you to reconsider . . . .”). Thus, after displaying in this way as to a different
matter that he was not hampered or deterred from lodging an objection—and after
being expressly afforded an opportunity to do so by the district court regarding its
sentence—Mr. Hanson failed to challenge in any respect the court’s sentencing
explanation.
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We have applied plain-error review to procedural reasonableness claims in
circumstances similar to Mr. Henson’s. See, e.g., United States v. Gehrmann, 966
F.3d 1074, 1081 (10th Cir. 2020) (“A district court explains its reasons for a
sentence at the sentencing hearing, so a defendant must object at the hearing to
preserve an objection to the adequacy of the court’s findings. If a defendant fails
to preserve an objection, ‘any review would be confined to the plain-error
standard.’ Here, . . . the district court gave [the defendant’s] counsel multiple
opportunities to speak and to object at several junctures of the sentencing hearing.
Though . . . counsel availed herself of the opportunities to speak, she never
objected to the adequacy of the court’s findings. Accordingly, we will review
[the defendant’s] claim [that the district court did not adequately explain its
sentencing decision] for plain error.” (citations omitted) (quoting United States v.
Yurek, 925 F.3d 423, 445 (10th Cir. 2019))); Marquez, 833 F.3d at 1220 n.1
(“[The defendant] contends plain error review is inapplicable because his counsel
was not given an opportunity to raise a procedural objection. The district court,
however, specifically inquired before adjourning the hearing whether counsel had
‘[a]nything else this morning’ to address. That inquiry provided [defense]
counsel a sufficient opportunity to register an objection. Furthermore, . . . the
fact that the district court’s inquiry came after [the defendant’s] sentence had
been pronounced did not render it any less of an opportunity to object; after all,
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the district court still could have remedied any procedural defect identified at that
time.” (second alteration in original) (citations omitted) (quoting Suppl. R., Vol.
VIII, at 25)).
To prevail on his procedural reasonableness claim, then, Mr. Henson must
“successfully run the gauntlet created by our rigorous plain-error standard of
review.” McGehee, 672 F.3d at 876. This “demanding,” multi-pronged standard
requires Mr. Henson to show “(1) an error, (2) that is plain, which means clear or
obvious under current law, and (3) that affects substantial rights”—and, “[i]f he
satisfies these criteria,” we may, in our discretion, “correct the error if [4] it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (second alteration in original) (quoting United States v.
Cooper, 654 F.3d 1104, 1117 (10th Cir. 2011)).14
14 While Mr. Henson does not make a plain-error argument until his reply
brief, the government concedes that we may exercise our discretion and consider
such an argument. See Aplee.’s Resp. Br. at 30 (recognizing that we “may
exercise [our] discretion to grant review [of Mr. Henson’s procedural
reasonableness challenge] if [he] argues for plain error in [his] reply brief”); see
also United States v. Fagatele, 944 F.3d 1230, 1239 (10th Cir. 2019) (“[T]his
court has suggested that a defendant in a criminal case may raise a plain-error
argument for the first time in a reply brief. And [the defendant’s] reply brief
contains such a plain-error argument. We exercise our discretion to address that
argument here.” (citations omitted)), cert. denied, 141 S. Ct. 274 (2020); Yurek,
925 F.3d at 445 (“[T]he government argues that [the defendant] lost her
opportunity to urge plain error by waiting until her reply brief to do so. We
disagree. . . . After the government challenged preservation, [the defendant]
argued in her reply brief that the error would be considered plain even if she had
(continued...)
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b
Mr. Henson’s time in our plain-error gauntlet, however, is brief; indeed,
because he fails to show the district court committed any procedural error, he
falters at the first prong. Recall that Mr. Henson attacks the sufficiency and
propriety of the district court’s explanation and justification for his life sentence.
More particularly, Mr. Henson asserts the district court did not adequately explain
how or why a life sentence—rather than the below-guidelines, twenty-year
sentence he requested—comported with the § 3553(a) sentencing factors. As
well, Mr. Henson faults the district court for commenting on his perceived
indifference and smugness, along with the global drug-addiction
problem—seeming to suggest that such commentary amounted to impermissible
consideration of extraneous, arbitrary matters beyond the § 3553(a) factors.
Mr. Henson’s various procedural arguments are unavailing. To start, the
district court’s explanation for imposing a life sentence within Mr. Henson’s
advisory guidelines range was more than adequate under our caselaw. Among
other things, the district court (1) stated that it was “impos[ing] a sentence . . .
sufficient but not greater than necessary to comply with the purposes of
14(...continued)
forfeited the issue. This approach was a permissible way to invoke plain-error
review. We thus apply the standard for plain error.” (citations omitted)).
Accordingly, we exercise our discretion and review Mr. Henson’s procedural
reasonableness challenge for plain error.
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sentencing,” Aplt.’s App. at 284–85; (2) acknowledged that it had considered the
guidelines, “the statements of the parties,” and the PSR, id. at 285; (3) announced
that it would stay within the properly-calculated guidelines range for sentencing,
id. at 285, 291; and (4) affirmed that it “considered all of the stated factors and
the advisory guidelines, the nature and circumstances of the offense, [and Mr.]
Henson’s history and characteristics,” id. at 286.
This explanation went well beyond the minimum level of detail required to
establish the procedural reasonableness of Mr. Henson’s within-guidelines
sentence. See, e.g., Martinez-Barragan, 545 F.3d at 902–03; United States v.
Tindall, 519 F.3d 1057, 1065 (10th Cir. 2008) (“In sentencing [the defendant]
within the advisory guidelines range, the district court explained, ‘the sentence I
am about to impose is the most reasonable sentence upon consideration of all
factors enumerated in 18 United States Code 3553.’ [This] one-sentence
explanation accompanying a within-guidelines sentence—in the absence of the
need to address specific § 3553(a) arguments brought to the district court’s
attention—satisfies the district court’s duty to impose a procedurally reasonable
sentence.” (citation omitted) (quoting R., Vol. 3, at 25)); see also United States v.
Geiner, 498 F.3d 1104, 1113 (10th Cir. 2007) (explaining that a “general
discussion” is “all that procedural reasonableness requires when a court imposes a
sentence within the applicable Guidelines range”).
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Furthermore, the record reflects that the district court expressly examined
several, specific § 3553(a) sentencing factors in deciding a life sentence was
warranted, including “the seriousness of [Mr. Henson’s] offenses,” “promot[ing]
respect for the law,” “provid[ing] just punishment,” “afford[ing] adequate
deterrence,” and “protect[ing] the public from further crimes.” Aplt.’s App. at
291. Likewise, the court acknowledged Mr. Henson’s argument for a below-
guidelines sentence and referenced his charitable acts and accomplishments in
explaining why it nevertheless concluded that a life-imprisonment sentence was
sufficient but not greater than necessary. See id. at 262–65 (hearing Mr.
Henson’s argument for a twenty-year sentence); id. at 266 (inviting Mr. Henson to
speak on his own behalf); see also id. at 288 (acknowledging that the court was
“not overlooking” the “good things that [Mr. Henson] ha[d] done in [his] life” in
imposing sentence); id. at 289 (referencing testimony from a former patient of
Mr. Henson’s, who “talk[ed] about all the good that [Mr. Henson] had done for
him”).
Contrary to Mr. Henson’s arguments, then, the court expressly considered
the § 3553(a) factors and his request for a below-guidelines sentence—and such
consideration more than adequately explained the court’s sentencing rationale.
See, e.g., Wireman, 849 F.3d at 958–59 (noting that we “have held time and time
again” that a district court imposing a within-guidelines sentence “may satisfy its
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obligation to explain its reasons for rejecting the defendant’s arguments for” a
more lenient sentence simply “by ‘entertain[ing] [the defendant’s] . . . arguments’
and then ‘somehow indicat[ing] that [it] did not rest on the guidelines alone, but
considered whether the guideline sentence actually conforms, in the
circumstances, to the [18 U.S.C. § 3553(a)] statutory factors” (alterations and
omission in original) (citations omitted) (first quoting Ruiz-Terrazas, 477 F.3d at
1202–03 & n.4, then quoting Martinez-Barragan, 545 F.3d at 903)); Martinez-
Barragan, 545 F.3d at 903 n.3 (noting that our caselaw “teach[es] that a district
court is not required to run through § 3553(a) like a checklist”); United States v.
Sells, 541 F.3d 1227, 1236 (10th Cir. 2008) (observing that, “in a run-of-the-mill
case involving a sentence within the advisory guidelines range, it is unnecessary
for the district court to specifically address on the record, by reference to the
factors set out in 18 U.S.C. § 3553(a), a request for a sentence outside the
Guidelines range,” and that, instead, “it is sufficient for the district court to state
how it . . . arrived at the advisory Guidelines range and generally note it . . .
considered in gross the factors set out in § 3553(a)” (citing Cereceres-Zavala, 499
F.3d at 1216–18)). Thus, we discern no procedural error in the district court’s
explanation of its decision to impose a life sentence for Mr. Henson’s crimes.
Mr. Henson also takes issue with certain remarks made by the district court
regarding his purported smugness and indifferent demeanor and regarding the
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global problem of drug addiction. He asserts that the court erred either by
referencing these topics without explaining how they impacted its sentencing
calculus (if they impacted it at all) or by improperly relying on them to justify his
life sentence. Importantly, we observe at the outset—as Mr. Henson himself
does—that it is not readily apparent from the sentencing transcript whether or not
these remarks played any role in the district court’s sentencing decision. The
court expressly characterized these remarks as “observations” reflecting the
court’s involvement “with th[e] case . . . for a couple of years,” not as critical
factors, if factors at all, in its decision making. Aplt.’s App. at 286 (declaring
that the court was “about to announce and impose a sentence” after “consider[ing]
all of the [§ 3553] factors and the advisory guidelines, the nature and
circumstances of the offense, [and Mr.] Henson’s history and characteristics,” and
then briefly pivoting to a separate discussion of “observations” made during the
course of the case).
Nonetheless, even if we assume that the foregoing observations by the
district court regarding Mr. Henson’s personal affect and the global problem of
drug addiction had more than a de minimis impact on the court’s sentencing
calculus, we conclude that the court did not procedurally err by considering these
matters. Broadly speaking, there are few limits on the factors a judge may
consider in crafting a defendant’s sentence. See 18 U.S.C. § 3661 (“No limitation
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shall be placed on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the United States
may receive and consider for the purpose of imposing an appropriate sentence.”
(emphasis added)); U.S.S.G. § 1B1.4 (“In determining the sentence to impose
within the guideline range . . . the court may consider, without limitation, any
information concerning the background, character and conduct of the defendant,
unless otherwise prohibited by law.”); see also, e.g., United States v. Pinson, 542
F.3d 822, 836 (10th Cir. 2008) (acknowledging that there “are likely some
boundaries on what factors sentencing courts can permissibly consider at
sentencing,” but emphasizing that the exceptions to § 3661’s expansive principle
are “few” in number); United States v. Collins, 828 F.3d 386, 389 (6th Cir. 2016)
(“Federal law provides nearly unfettered scope as to the sources from which a
district judge may draw in determining a sentence.”).
“It has been uniform and constant in the federal judicial tradition for the
sentencing judge to consider every convicted person as an individual and every
case as a unique study in the human failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to ensue.” Pepper v. United States, 562
U.S. 476, 487 (2011) (quoting Koon v. United States, 518 U.S. 81, 113 (1996)).
To this end, both the Supreme Court and this court have emphasized that
sentencing courts “exercise a wide discretion in the sources and types of evidence
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used to assist [them] in determining the kind and extent of punishment to be
imposed.” Id. at 488 (quoting Williams v. New York, 337 U.S. 241, 246 (1949));
accord Smith, 756 F.3d at 1181–83.
Thus, under “longstanding American tradition[s] embodied in § 3661 and
§ 3553(a), federal courts seeking a just sentence may look to the whole of the
defendant’s person, character, and crimes.” Smith, 756 F.3d at 1184. And,
insofar as the district court here took into account in its sentencing decision its
observations regarding Mr. Henson’s personal demeanor or affect and his role in
exacerbating the already extant global drug-addiction problem, the court was
adhering to that tradition. See, e.g., Aplt.’s App. at 287–88 (the court observing
as to Mr. Henson, “I really don’t think that you get it. I think in some respects
you’re numb to what you were doing over time. . . . [Y]ou seem to be missing
some kind of a piece that allows you to tap into other people’s feelings and the[ir]
suffering[;] . . . focus[ing] more on, Why is this happening to me, than the impact
that you’ve had on others.”); id. at 288 (the court stating, “More than one out of
every five persons over the age of 14 is addicted to drugs. And so many of the
people that you were seeing over time were addicts.” (emphasis added)).
Moreover, the district court’s remarks bear directly on several sentencing factors
in § 3553(a), and thus were expressly relevant to the court’s sentencing decision.
Cf. Smith, 756 F.3d at 1183 (clarifying that Ҥ 3661 explains what a district court
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may consider at sentencing,” while “§ 3553(a) describes what a district court must
consider” in effectuating the section’s overarching “parsimony principle”—i.e.,
that a district court must “‘impose a sentence sufficient, but not greater than
necessary, to comply’ with . . . policy goals [embodied in the statutory factors]”).
In short, at least as employed by the district court on these facts, these
observations were not improper sentencing considerations.
More specifically, let us examine the court’s observations regarding Mr.
Henson’s demeanor or affect. The court made various references to Mr. Henson’s
apparent lack of contrition and failure to acknowledge the harm he caused to both
individuals and the community with his reckless medical practices (i.e., his
indifferent demeanor). See, e.g., Aplt.’s App. at 287 (noting that the court found
it “very difficult to reconcile” Mr. Henson’s statements regarding his good works
“with [his] conduct throughout th[e] case”); id. (telling Mr. Henson that, “in some
respects,” what the court saw from him was worse than certain criminals
“absolutely filled with evil . . . [and] beyond redemption” because he “really . . .
[did not] get it” and was “numb to what [he] w[as] doing over time”); id. at 288
(observing that Mr. Henson seems to be “missing some kind of a piece that allows
[him] to tap into other people’s feelings and the[ir] suffering[;] . . . focus[ing]
more on, Why is this happening to me, than the impact that you’ve had on
others”); see id. at 290 (commenting that Mr. Henson appeared to “still think [he
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was] the smartest person in the room”). These kinds of observations
unquestionably fall within the ambit of several statutory sentencing factors,
including Mr. Henson’s “history and characteristics,” and the need for Mr.
Henson’s sentence to “promote respect for the law” and “afford adequate
deterrence to criminal conduct”—all factors specifically cited by the district court
in justifying its sentencing decision. 18 U.S.C. § 3553(a)(1)–(2); see Aplt.’s App.
at 286–91.
More to the point, we have recognized that a defendant’s hubris and
associated lack of remorse—which the district court detected in Mr. Henson’s
perceived smugness and indifferent demeanor—are relevant factors that a
sentencing court may appropriately consider when fashioning a sufficient, but not
greater than necessary, sentence. See Verdin-Garcia, 516 F.3d at 898–99 (finding
no abuse of discretion where a district court explained its decision to impose a
life sentence based on, inter alia, the fact that the defendant “displayed a ‘lack of
remorse’” and a lack of “any respect for the law” (quoting R., Vol. X, at 2308));
see also United States v. Harris, 418 F. App’x 767, 772–73 (10th Cir. 2011)
(unpublished) (holding, under plain-error review, that a defendant’s sentence was
procedurally reasonable where the district court explained and justified the
sentence based on, inter alia, the defendant’s “arrogance and abusive demeanor”
and “his lack of remorse and failure to acknowledge responsibility”); United
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States v. Mojica-Fabian, 264 F. App’x 712, 715 (10th Cir. 2008) (unpublished)
(concluding a defendant failed to rebut the presumptive reasonableness of his
within-guidelines sentence where the district court relied on, inter alia, his “lack
of contrition or acceptance of responsibility” in reaching its decision).15
And so have our sister circuits. See, e.g., United States v. Isaac, 987 F.3d
980, 995–96 (11th Cir. 2021) (finding the district court “appropriately
considered” the defendant’s “apparent lack of remorse” and failure to
“underst[an]d the true severity and ‘enormity’ of his crimes” in fashioning a
sentence); United States v. Olson, 867 F.3d 224, 229 (1st Cir. 2017) (finding that
the district court did not “rely on improper factors in reaching its decision” by
“remark[ing] on [the defendant’s] . . . . failure to show concrete remorse,” as such
remarks “properly relate[d] to . . . ‘the history and characteristics of the
defendant’” (quoting 18 U.S.C. § 3553(a)(1))); United States v. Keskes, 703 F.3d
1078, 1090–91 (7th Cir. 2013) (“A lack of remorse is a proper sentencing
consideration ‘because it speaks to traditional penological interests such as
rehabilitation (an indifferent criminal isn’t ready to reform) and deterrence (a
remorseful criminal is less likely to return to his old ways).’” (quoting Burr v.
Pollard, 546 F.3d 828, 832 (7th Cir. 2008))); United States v. Douglas, 569 F.3d
15 “Although not precedential, we find the reasoning of the unpublished
decisions cited in this opinion instructive.” United States v. Oldman, 979 F.3d
1234, 1244 n.6 (10th Cir. 2020).
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523, 526–28 (5th Cir. 2009) (concluding the district court did not “commit
procedural error” by imposing an above-guidelines sentence based on “its finding
that the defendant lacked remorse for his crime”); cf. United States v. Ochoa-
Fabian, 935 F.2d 1139, 1143 (10th Cir. 1991) (noting that a district court “is in a
better position than the appellate court to weigh the defendant’s sincerity of
remorse and contrition”).16
Similarly, the district court’s observations concerning the global drug-
addiction problem had a clear nexus to Mr. Henson’s conduct and implicated
§ 3553(a)’s sentencing factors. More specifically, these observations (assuming
that they had an impact on sentencing at all) were part and parcel of the court’s
effort to impose a just and sufficient punishment on Mr. Henson for exacerbating
an extant global drug-addiction problem, by preying on the weaknesses of, in the
court’s words, “many” individuals that “were addicts.” Aplt.’s App. at 288. In
16 Moreover, the district court’s commentary regarding Mr. Henson’s
indifferent demeanor and apparent lack of remorse did not emerge out of thin air.
Quite the contrary: the jury was instructed that it could find the requisite
knowledge for Mr. Henson’s crimes based on a theory of deliberate indifference,
which the district court concluded was supported by the government’s evidence.
In other words, the court’s references to Mr. Henson’s indifferent demeanor and
apparent lack of remorse were not simply observations regarding Mr. Henson’s
affect at his sentencing hearing; rather, they related to aspects of his offense
conduct, on full display during the trial testimony. Thus, while Mr. Henson
implies at various points in his appellate briefing that he is perplexed and
bewildered as to why the district court would refer to his smugness and
indifferent demeanor, such bewilderment is implausible and unconvincing in light
of the circumstances of this case.
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particular, the record shows Mr. Henson cavalierly distributed incredibly potent,
controlled substances—in dangerous quantities and in dangerous
combinations—with callous disregard for the consequences. Those consequences,
of course, were dire, including the death of Nick McGovern. By way of contrast,
these observations do not reflect a misguided shift in the court’s focus from
sentencing Mr. Henson based on his particular circumstances to a more abstract
effort to combat the global ill of drug addiction. Cf. Smart, 518 F.3d at 803 (“[I]f
a district court bases a sentence on a factor not within the categories set forth in
§ 3553(a), this would indeed be one form of procedural error.”).
In this regard, the court’s observations directly implicated a host of
sentencing factors, including “the nature and circumstances of [Mr. Henson’s]
offense and [his] history and characteristics,” and the need for his sentence to,
inter alia, “reflect the seriousness” of his crimes, “promote respect for the law,”
“provide just punishment for the offense,” and “afford adequate deterrence to
criminal conduct.” 18 U.S.C. § 3353(a)(1)–(2); see United States v. Robinson,
892 F.3d 209, 215–217 (6th Cir. 2018) (finding the district court “did not abuse
its discretion” by considering “the harm caused by the opioid epidemic in Ohio”;
stating at sentencing that “communities ha[d] been ripped apart by opioids and
fentanyl and other related drugs”; and “admonish[ing]” the defendant “for the
seriousness of his specific conduct in contributing to the opioid problem” by
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“dealing ‘death drugs’ and placing everyone at risk by ‘put[ting] these poisons
into the hands of addicts’” (first and third alterations in original)); see also United
States v. Pippins, 761 F. App’x 154, 158–59 (4th Cir. 2019) (per curiam)
(unpublished) (rejecting a defendant’s argument that the district court “improperly
focused on the heroin epidemic in West Virginia” during sentencing because that
focus demonstrated that the court “based its decision on the statutory factors,”
including “the need for the sentence to reflect the seriousness of” the defendant’s
offenses, which related to his “leader[ship] of a lengthy heroin-trafficking
conspiracy,” and “to deter [him] and others from continuing to contribute to the
growing epidemic”).
In sum, the transcript from Mr. Henson’s sentencing hearing plainly shows
that the district court expressly relied upon the § 3553(a) factors in imposing a
within-guidelines sentence for Mr. Henson’s crimes, and that it explained its
rationale for this sentence in ample and adequate detail. Under our precedents, it
was neither obligated to do more, nor erred in not doing more. See, e.g., Chavez,
723 F.3d at 1232. Mr. Henson, then, fails to demonstrate procedural error—let
alone error that was plain and affecting his substantial rights. Accordingly, we
find Mr. Henson’s procedural reasonableness challenge meritless.
4
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Having found Mr. Henson’s sentence procedurally sound, we next consider
Mr. Henson’s challenge to the substantive reasonableness of his sentence. Recall
“[a] substantive reasonableness sentencing challenge asks us to address ‘whether
the length of the sentence is reasonable given all the circumstances of the case in
light of the [§ 3553(a)] factors.’” United States v. Durham, 902 F.3d 1180, 1238
(10th Cir. 2018) (quoting Verdin-Garcia, 516 F.3d at 895). As noted supra, we
review this claim for abuse of discretion, meaning we “will reverse only if the
sentence imposed was ‘arbitrary, capricious, whimsical, or manifestly
unreasonable,’” or the district court “exceeded the bounds of permissible choice,
given the facts and the applicable law in the case at hand.” DeRusse, 859 F.3d at
1236 (first quoting United States v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012),
then quoting McComb, 519 F.3d at 1053)); see also Sayad, 589 F.3d at 1118
(noting that our “substantive reasonableness review broadly looks to whether the
district court abused its discretion in weighing permissible § 3553(a) factors” and
is “highly deferential”).17
17 While Mr. Henson did not contemporaneously object to the length of
his sentence at the district court’s hearing, unlike his procedural reasonableness
challenge, he was not required to do so in order to preserve a substantive
reasonableness challenge. See, e.g., United States v. Kaspereit, 994 F.3d 1202,
1214 (10th Cir. 2021) (“To preserve a substantive reasonableness challenge, we
only require that a defendant advocate for a shorter sentence than the one
imposed. Here, Defendant thoroughly litigated for a sentence less than he
received. And therefore we apply the ordinary standard of review—abuse of
(continued...)
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“We do not reweigh the sentencing factors but instead ask whether the
sentence fell within the range of ‘rationally available choices that facts and the
law at issue can fairly support.’” United States v. Blair, 933 F.3d 1271, 1274
(10th Cir. 2019) (quoting United States v. Martinez, 610 F.3d 1216, 1227 (10th
Cir. 2010)); see also Barnes, 890 F.3d at 915–16 (explaining that we “give
substantial deference to the district court’s weighing of [the § 3553(a)] factors”
because that court “sees and hears the evidence, makes credibility determinations,
has full knowledge of the facts[,] and gains insights not conveyed by the record,”
and is therefore “in a superior position to find facts and judge their import under
§ 3553(a) in [an] individual case” (quoting Gall, 552 U.S. at 51)). Most
importantly, we presume Mr. Henson’s within-guidelines life sentence is
substantively reasonable, unless Mr. Henson carries his burden of rebutting that
presumption. See Verdin-Garcia, 516 F.3d at 898 (noting that the defendant-
appellant’s burden to rebut the presumption of reasonableness “is a hefty one,
17(...continued)
discretion—rather than the plain error standard Defendant invokes.” (citation
omitted)); United States v. Garcia, 946 F.3d 1191, 1211 n.12 (10th Cir. 2020) (“A
defendant need not object in district court to mount a substantive-reasonableness
challenge on appeal.”); United States v. Vasquez-Alcarez, 647 F.3d 973, 976 (10th
Cir. 2011) (“We have held that ‘when the claim is merely that the sentence is
unreasonably long, we do not require the defendant to object in order to preserve
the issue.’” (quoting United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th
Cir. 2006))). Accordingly, as Mr. Henson argued for a below-guidelines sentence
in the district court and challenges the length of his life sentence on appeal, we
review his substantive reasonableness claim for abuse of discretion.
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because abuse-of-discretion is a deferential standard of review”); see also
Martinez-Barragan, 545 F.3d at 905.
Mr. Henson does not come close to carrying his burden. While he crafted
several, specific arguments challenging the procedural reasonableness of his
sentence, Mr. Henson dedicates only a little over two pages in his opening brief to
challenging the substantive reasonableness of that sentence, see Aplt.’s Opening
Br. at 41–43—and in those pages, he offers scarcely more than his own,
subjective incredulity at the district court’s sentencing decision.18 That is, Mr.
Henson simply cannot believe that a life sentence was appropriate in this case.
But Mr. Henson does not meaningfully engage with the fact that his sentence falls
within the advisory guidelines range for his crimes—the calculation of which he
did not challenge in the district court and does not challenge on appeal—and,
therefore, we presume it to be substantively reasonable. Thus, while Mr. Henson
may disagree with the district court’s sentencing decision, bare disagreement is
not enough to establish the district court abused its discretion in imposing a life
sentence—especially when we presume that the sentence at issue is reasonable.
See, e.g., McComb, 519 F.3d at 1053 (explaining that the district court’s decision
18 To the extent that Mr. Henson effectively relies on the substance of
his procedural-reasonableness arguments to also challenge the substantive
reasonableness of his sentence, we reject them for the reasons explicated in
Section II(C)(3) above. See supra note 13.
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to impose a sentence within the properly-calculated guidelines range “is strong
evidence of the reasonableness of the . . . sentence imposed” and acknowledging
the “congruence between [our] ‘abuse of discretion’ standard of review” and the
presumption of substantive reasonableness enjoyed by within-guidelines
sentences); Sells, 541 F.3d at 1239 (“[I]t is not [our] job . . . to review de novo
the balance struck by a district court among the factors set out in § 3553(a).
Thus, as long as th[is] balance . . . is not arbitrary, capricious, or manifestly
unreasonable, we must defer to that decision . . . .” (citations omitted)).
Moreover, we cannot conclude that the district court exceeded the bounds
of reasonableness in determining that a life sentence for Mr. Henson was justified
by the circumstances of this case. The evidence presented at Mr. Henson’s trial
demonstrated that his conduct left a trail of devastation and despair in
communities inside and outside of Kansas. Numerous former patients and
customers of Mr. Henson testified about the harm he caused and the lives he
negatively impacted by his irresponsible prescribing habits and reckless
indifference to those who entrusted their care to him, as a physician. Though Mr.
Henson insists he only wanted to alleviate the pain of those around him, the
district court could reasonably have concluded that his insistence beggared belief.
As evidenced by the jury’s verdict, it was Mr. Henson himself who caused much
pain—and even death—to those around him. On this record, then, the district
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court acted well within its considerable discretion in imposing a within-guidelines
life sentence—and Mr. Henson does nothing to cast doubt on the presumption of
reasonableness that sentence enjoys.
* * *
Accordingly, because Mr. Henson establishes no procedural or substantive
error in the district court’s sentencing decision, we conclude that his life sentence
is reasonable in all respects and affirm the district court’s decision.
D
In his fourth and final issue on appeal, Mr. Henson claims that another of
the district court’s jury instructions—Instruction 25—inaccurately states the law.
Instruction 25 reads, in pertinent part, as follows:
Under 21 U.S.C. § 841(a)(1), federal law provides that “it shall
be unlawful for any person knowingly or intentionally . . . to . . .
distribute, or dispense or possess with the intent to distribute
. . . a controlled substance.” . . . Federal regulations allow for
controlled substance prescriptions that are issued for a legitimate
medical purpose by an individual practitioner acting in the usual
course of his professional practice. To be lawful and effective,
a prescription must meet the requirements of Section 1306.04 of
Title 21 of the Code of Federal Regulations. . . . Under this
regulation, a registered medical practi[t]oner may prescribe a
controlled substance if she acts both for a legitimate medical
purpose and while acting in the usual course of her profession.
Without both, a practi[t]oner is subject to prosecution. In other
words, if the Government proves beyond a reasonable doubt that
a prescription was knowingly written (1) not for a legitimate
medical purpose, or (2) outside the usual course of professional
practice, then the exception to the Controlled Substances Act
does not apply. . . .
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Aplt.’s App. at 98–99 (first, second, and third omissions in original) (emphasis
added) (line and paragraph breaks omitted).
Mr. Henson argues that, to convict a physician for violating 21 U.S.C.
§ 841, the government “should be required to establish” instead that a doctor both
“issued a prescription outside the scope of professional practice” and that he
issued it “for no legitimate medical purpose.” Aplt.’s Opening Br. at 44. In other
words, Mr Henson argues that the relevant, regulatory language should be read
conjunctively, not disjunctively.
However, Mr. Henson readily “concedes that his argument is contrary to
this court’s precedent.” Id. Indeed, in United States v. Nelson, we held that an
individual can be convicted under 21 U.S.C. § 841 if the government proves
beyond a reasonable doubt that he prescribed a controlled substance either
“outside the scope of professional practice” or “for no legitimate medical
purpose.” See 383 F.3d 1227, 1231–32 (10th Cir. 2004). We recently discussed
and reaffirmed this holding in another published decision:
Defendants ask us to revisit our prior holding that a licensed
physician may be convicted under 21 U.S.C. § 841 for either
prescribing “outside the scope of professional practice” or “for
no legitimate medical purpose.” See United States v. Nelson, 383
F.3d 1227 (10th Cir. 2004). Because one panel may not overturn
a decision by a prior panel, we must reject Defendants’
challenge. United States v. Caiba-Antele, 705 F.3d 1162, 1165
(10th Cir. 2012) (“[W]e are bound by the precedent of prior
panels absent en banc reconsideration or a superceding contrary
decision by the Supreme Court.” (quoting In re Smith, 10 F.3d
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723, 724 (10th Cir. 1993))). In any event, our prior holding in
Nelson is sound. . . . Other circuits have reached the same
conclusion.
United States v. Khan, 989 F.3d 806, 822 (10th Cir. 2021) (alteration in original)
(additional citations and paragraph breaks omitted), petition for cert. filed, No.
21-5261 (U.S. Jul. 29, 2021).
Mr. Henson requests that we “revisit [our] holding” in Nelson, Aplt.’s
Opening Br. at 11, but we are not at liberty to do so. See, e.g., United States v.
De Vaughn, 694 F.3d 1141, 1149 n.4 (10th Cir. 2012) (“We cannot, of course,
‘overturn the decision of another panel of this court barring en banc
reconsideration, a superseding contrary Supreme Court decision, or authorization
of all currently active judges on the court.’” (quoting United States v. Edward J.,
224 F.3d 1216, 1220 (10th Cir. 2000))); see also Barnes v. United States, 776
F.3d 1134, 1147 (10th Cir. 2015). Thus, because Mr. Henson concedes that the
jury instruction in question correctly stated the law under Nelson, and because we
are bound by this precedent, Mr. Henson is not entitled to relief on this issue.
III
For the foregoing reasons, we conclude that Mr. Henson’s challenges on
appeal are unavailing. Accordingly, we AFFIRM his convictions and sentence.
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