Summary Calendar UNITED STATES OF AMERICA v. Marcus Wayne Henderson

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-30416
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARCUS WAYNE HENDERSON
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:05-CR-20223-1
Before JOLLY, DENNIS, and PRADO. Circuit Judges.
PER CURIAM:*
Marcus Wayne Henderson appeals the 120-month sentence he received
following his guilty-plea conviction for using a firearm during a crime of violence,
in violation of 18 U.S.C. § 924(c). The sentence imposed exceeded the advisory
guidelines range as calculated in the PSR. However, the record is unclear
whether the sentence was the result of an upward departure authorized by the
Guidelines or whether it was the result of a variance and thus was a non-
guidelines sentence.
United States Court of Appeals
Fifth Circuit
F I L E D
April 15, 2008
Charles R. Fulbruge III
Clerk

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No. 07-30416
2
Although the memorandum ruling states that the sentence was a non-
guidelines sentence and did not result from an upward departure under U.S.S.G.
§ 4A1.3, it simultaneously cites § 4A1.3 in support of the purported variance.
Additionally, as Henderson points out, the Statement of Reasons indicates that
the sentence was the result of a guidelines upward departure, specifically citing
U.S.S.G. §§ 4A1.3, 5K2.0, and 5K2.21. The oral pronouncement provides little
guidance in resolving the conflict.
Because resolution of the question is a necessary precursor to applying the
appropriate standard of review, we order a LIMITED REMAND to the district
court for the sole purpose of clarifying whether the sentence resulted from an
upward departure pursuant to §§ 4A1.3, 5K2.0 and 5K2.21 or whether it
resulted from a non-guidelines variance. Once the district court issues such
clarification, the case shall be returned to this court for further proceedings.
This court retains jurisdiction over this case for all other purposes.

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