Case: 22-20331 Document: 00516783322 Page: 1 Date Filed: 06/12/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 22-20331 June 12, 2023 Summary Calendar Lyle W. Cayce ____________ Clerk United States of America, Plaintiff—Appellee, versus Eryc Jarrod Henderson, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CR-262-1 ______________________________ Before Smith, Wiener, and Engelhardt, Circuit Judges.

Per Curiam:* Eryc Jarrod Henderson pleaded guilty, without a plea agreement, to possessing a firearm after a felony conviction. The district court sentenced him within the advisory guidelines range to 78 months of imprisonment and three years of supervised release. Henderson now appeals.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-20331 Document: 00516783322 Page: 2 Date Filed: 06/12/2023

No. 22-20331

As he did in the district court, Henderson argues that the policy statement at U.S.S.G. § 5K1.1 violates the Eighth Amendment because it does not allow the district court to apply a downward departure under the provision absent a government motion indicating that the defendant provided substantial assistance. However, as the district court expressly recognized at Henderson’s sentencing hearing, the “sentencing court has the power to consider a defendant’s cooperation under [18 U.S.C.] § 3553(a), irrespective of whether the Government files a § 5K1.1 motion.” United States v. Robinson, 741 F.3d 588, 599 (5th Cir. 2014). Thus, contrary to Henderson’s argument, § 5K1.1 does not prevent the district court from considering and giving effect to a defendant’s cooperation with the Government as mitigating evidence. See Penry v. Lynaugh, 492 U.S. 302, 318-19 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002); Robinson, 741 F.3d at 599-600.

AFFIRMED.