United States v. Perry ( 2011 )

10-1758-cr
United States v. Perry
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 18th day of April, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSÉ A. CABRANES,
9 Circuit Judge,
10 MARK R. KRAVITZ,*
11 District Judge.
12
13
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15 UNITED STATES OF AMERICA,
16
17 Appellee,
18
19 -v.- 10-1758-cr
20
21
22 DONALD R. PERRY, III,
*
The Honorable Mark R. Kravitz, of the United States
District Court for the District of Connecticut, sitting by
designation.
1
1
2 Defendant-Appellant.
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4
5 FOR APPELLANT: JONATHAN J. EINHORN, New Haven, CT.
6
7 FOR APPELLEE: MICHAEL J. GUSTAFSON, Assistant United
8 States Attorney (SANDRA S. GLOVER,
9 Assistant United States Attorney, of
10 counsel), for David B. Fein, United
11 States Attorney for the District of
12 Connecticut, New Haven, CT.
13
14 Appeal from a judgment of the United States District
15 Court for the District of Connecticut (Bryant, J.).
16
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18 AND DECREED that the judgment of the district court be
19 AFFIRMED.
20
21 Defendant-Appellant Donald Perry, III, appeals from the
22 judgment of conviction entered by the United States District
23 Court for the District of Connecticut (Bryant, J.),
24 principally sentencing him to six months’ imprisonment and
25 four months’ home confinement. Perry pled guilty to one
26 count of altering and fabricating records in a federal
27 investigation, in violation of 18 U.S.C. § 1519. He
28 fabricated four invoices at the request of a cohort, Gregory
29 Laugeni, in order to disguise a rent-kickback scheme from
30 federal investigators. We assume the parties’ familiarity
31 with the underlying facts, the procedural history, and the
32 issues presented for review.
33
34
35 [1] Perry claims that the district court failed to comply
36 with Federal Rule of Criminal Procedure 11(b)(1). Since he
37 failed to object at sentencing, we review for plain error.
38 United States v. Vonn, 535 U.S. 55, 58-59 (2002). As
39 conceded at oral argument, Perry falls far short of
40 establishing “a reasonable probability that, but for the
41 error, he would not have entered the plea.” United States
42 v. Dominguez Benitez, 542 U.S. 74, 83 (2004). In any event,
43 Perry received notice of his rights, because any points
44 omitted by the court were discussed (1) by the government
45 during the colloquy, (2) in the plea agreement, or (3) in
46 the pre-sentence report. (Strict compliance with Fed. R.
2
1 Crim. P. 11(b)(1)(N) may have been required for Perry to
2 knowingly and voluntarily waive his appellate rights, but
3 the government does not seek to enforce the appeal-waiver
4 provision in his plea agreement.)
5
6 [2] Perry argues that he received a harsher sentence for
7 having fewer charitable contributions than Laugeni. Because
8 Perry failed to object during sentencing, we review for
9 plain error. See United States v. Verkhoglyad, 516 F.3d
10 122, 128 (2d Cir. 2008). The district court referred to
11 charitable contributions as a “mitigating factor that is not
12 present here.” Joint Appendix at 55. Laugeni may thus have
13 been sentenced more leniently because of his charitable
14 contributions of time and money, but it cannot be said that
15 Perry has been penalized for lack of charity. The propriety
16 of treating Laugeni’s contributions as a mitigating factor
17 in his sentence cannot be challenged here.
18
19 [3] Perry catalogs three instances where the court
20 erroneously identified him as Laugeni during sentencing. We
21 review for plain error in view of his failure to object.
22 See Verkhoglyad, 516 F.3d at 128. Perry fails to explain
23 how the misidentifications harmed him, let alone affected
24 his substantial rights. United States v. Villafuerte, 502
25 F.3d 204, 209 (2d Cir. 2007). Any errors were thus not
26 plain.
27
28 We have considered Perry’s other arguments and conclude that
29 they lack merit. For the foregoing reasons, we hereby
30 AFFIRM the judgment of the district court.
31
32
33 FOR THE COURT:
34 CATHERINE O’HAGAN WOLFE, CLERK
35
3