United States v. Perry , 267 F. App'x 270 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4489
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RODERICK LAMMOND PERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00145-NCT)
Submitted: January 31, 2008 Decided: February 27, 2008
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On November 2, 2005, Roderick Lammond Perry was found in
possession of a loaded .40 caliber handgun and 2.3 grams of crack
cocaine. Pursuant to a plea agreement, Perry pled guilty to
possession with intent to distribute cocaine base, in violation of
21 U.S.C.A. §§ 841(a)(1) (2000) and (b)(1)(C) (West 2000 and Supp.
2007), and possession of a firearm after having three previous
convictions for violent felonies or serious drug offenses, in
violation of 18 U.S.C.A. §§ 922(g)(1) (2000) and 924(e) (West 2000
and Supp. 2007). At sentencing, the district court determined
Perry was an Armed Career Criminal within the meaning of 18
U.S.C.A. § 924(e) (West 2000 and Supp. 2007) and that he had a
resulting advisory guidelines range of 188-235 months’
imprisonment. In conformity with this range, the district court
sentenced Perry to 188 months’ imprisonment. Perry timely noted
his appeal and now argues that his sentence was unreasonable. We
affirm for the reasons that follow.
Following United States v. Booker, 543 U.S. 220 (2005),
a district court must engage in a multi-step process at sentencing.
The district court must calculate the appropriate advisory
guidelines range by making any necessary factual findings. United
States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). The court
should then afford the parties “an opportunity to argue for
whatever sentence they deem appropriate.” Gall v. United States,
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128 S. Ct. 586, 596-97 (2007). Then, the sentencing court should
consider the resulting advisory guideline range in conjunction with
the factors set out in 18 U.S.C. § 3553(a) (West 2000 and Supp.
2007), and determine whether the § 3553(a) factors support the
sentence requested by either party. Id. Considering the factors
in § 3553(a) does not require the sentencing court to “robotically
tick through” every subsection of § 3553(a). United States v.
Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). The sentencing
court may not presume that the Guidelines range is reasonable, but
if it decides to impose a sentence outside the Guidelines range it
“must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of
the variance.” Gall, 128 S. Ct. at 596.
On appeal, we review a sentence for reasonableness,
focusing on whether the district court abused its discretion.
United States v. Pauley, ___ F.3d ___, 2007 WL 4555520 at *5 (4th
Cir. Dec. 28, 2007). This involves two steps, first examining the
sentence for “significant procedural errors,” and second,
evaluating the substance of the sentence. Id. Significant
procedural errors include “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence - including an explanation for any
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deviation from the Guidelines range.” Id. (internal quotations
omitted). “Substantive reasonableness review entails taking into
account the totality of the circumstances, including the extent of
any variance from the Guidelines range.” Id. While the appellate
court may presume a sentence within the Guidelines range to be
reasonable, it may not presume a sentence outside the range to be
unreasonable. Moreover, it must give “due deference” to the
district court’s decision that the § 3553(a) factors justify the
extent of any variance sentence. Id.
On appeal, Perry seizes on the language in 18 U.S.C.A.
§ 3553(a) (West 2000 and Supp. 2007) that a sentencing court is to
“impose a sentence sufficient, but not greater than necessary, to
comply with the purposes set forth in” § 3553(a)(2) and appears to
argue that the district court failed to properly consider “the
nature and circumstances of the offense and the history of the
defendant.” 18 U.S.C. § 3553(a)(1). Simply because the district
court may have weighed the § 3553(a) factors differently than
Perry desired does not establish that the district court committed
a significant procedural error in imposing sentence.
Additionally, Perry’s sentence was substantively
reasonable. Pauley, 2007 WL 4555520 at *5. Perry acquired
numerous felony convictions at a young age and continued to offend
into adulthood. Ultimately, Perry was arrested in possession of
crack cocaine and a loaded .40 caliber handgun and was properly
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characterized as an armed career criminal. These facts were aptly
countered by argument in mitigation from defense counsel and by
Perry’s allocution. This court may presume that Perry’s advisory
guidelines sentence of 188 months was reasonable, and Perry has
failed to rebut such a presumption. See Rita v. United States, 127
S. Ct. 2456, 2459 (2007); Gall, 128 S. Ct. at 597 . Accordingly, we
affirm the judgment of the district court. We dispense with oral
argument as 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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