United States v. Sean Perry , 456 F. App'x 226 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4603
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEAN PERRY, a/k/a Sean Austin Perry,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:10-cr-00139-1)
Submitted: November 23, 2011 Decided: December 1, 2011
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. R. Booth
Goodwin II, United States Attorney, Monica L. Dillon, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sean Austin Perry appeals his conviction and fifty-
seven month sentence imposed after he pled guilty without a plea
agreement to one count of distribution of oxycodone, in
violation of 21 U.S.C. § 841(a)(1) (2006); and one count of
aiding and abetting the possession with intent to distribute
oxycodone, in violation of 21 U.S.C. §§ 2, 841(a)(1) (2006).
Perry’s sole argument on appeal is that his sentence should be
vacated because it is allegedly greater than necessary to comply
with the purposes of 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2011) since: (1) the Guidelines allegedly punish crimes
involving oxycodone more harshly than other narcotics offenses;
and (2) in imposing the fifty-seven month sentence, the district
court allegedly focused solely on deterrence under § 3553(a),
rather than considering other compelling factors, such as
Perry’s history and characteristics. We reject Perry’s
arguments and affirm the district court’s judgment.
This court reviews a sentence for reasonableness under
an abuse of discretion standard. See Gall v. United States, 552
U.S. 38, 51 (2007). This review requires consideration of both
the procedural and substantive reasonableness of a sentence.
Id. This court must first assess whether the district court
properly calculated the advisory Guidelines range, considered
the § 3553(a) factors, analyzed any arguments presented by the
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parties, and sufficiently explained the selected sentence. Id.
at 49-50.
If there is no procedural error, we review the
substantive reasonableness of the sentence, “tak[ing] into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.” United States v.
Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal quotation
marks and citation omitted), cert. denied, 131 S. Ct. 307(2010). However, this court presumes that a sentence within a
properly calculated Guidelines range is reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Perry does
not allege that the district court procedurally erred in
imposing his sentence and, thus, his within-Guidelines sentence
is entitled to a presumption of reasonableness. Id.We conclude that Perry has failed to rebut the
presumption of reasonableness. First, we discern no error in
the district court’s rejection of Perry’s argument that he was
entitled to a variant sentence because the Guidelines allegedly
punish oxycodone offenses more harshly than other narcotics
offenses. Admittedly, “district courts may ‘vary from
Guidelines ranges based solely on policy considerations,
including disagreements with the Guidelines.’” United States v.
Engle, 592 F.3d 495, 502 (4th Cir.), cert. denied, 131 S. Ct.
165 (2010) (quoting Kimbrough v. United States, 552 U.S. 85, 101
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(2007)). Although a district court is “at liberty” to vary from
a particular Guideline, it is equally clear that “[n]o judge is
required . . . to do so.” United States v. Corner, 598 F.3d
411, 416 (7th Cir. 2010). The record establishes that the
district court was well aware of its authority to reject the
manner in which the Guidelines treat oxycodone-related offenses,
but simply chose not to do so.
We also conclude that the district court did not abuse
its discretion in placing emphasis on its perceived need to
deter others from similar crimes in imposing Perry’s sentence.
Specifically, the district court, while recognizing its
authority to vary from Perry’s Guidelines range, clearly
explained its rationale for declining to do so, including the
fact that: (1) oxycodone and other opiate-based drugs have
become a serious law enforcement issue in its district; (2)
Perry was not from West Virginia; and (3) his drugs were from
Detroit, Michigan, which has produced extensive criminal
activity.
Perry’s assertions to the contrary, the district court
also explicitly considered Perry’s history and characteristics;
namely, his lack of countable criminal history, his decent
upbringing, his education, and his potential to become a
productive member of society. Because it is apparent from the
district court’s comments at sentencing that it carefully
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considered the Guidelines and the § 3553(a) factors in
fashioning an appropriate sentence for Perry, and because the
district court sentenced Perry within — in fact, at the bottom
of — Perry’s Guidelines range, we conclude that Perry’s fifty-
seven month sentence is reasonable.
Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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