United States v. Tara Perry , 599 F. App'x 141 ( 2015 )

Case: 14-10233 Document: 00512987553 Page: 1 Date Filed: 03/31/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-10233 FILED
Summary Calendar March 31, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TARA MICHELLE PERRY,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-81
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Tara Michelle Perry appeals her guilty plea conviction and sentence for
conspiracy to possess with intent to distribute 50 grams or more of
methamphetamine. For the first time on appeal, Perry argues that the district
court committed plain error in violation of Federal Rule of Criminal Procedure
11(b)(1)(I) by incorrectly admonishing her at rearraignment regarding her
statutory minimum sentence. She asserts that the admonishment that she
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-10233
faced a statutory minimum sentence of five years of imprisonment was
incorrect because, due to her having a prior felony drug conviction, she faced a
statutory minimum sentence of 10 years of imprisonment.
Because Perry did not object to the Rule 11 colloquy, we review for plain
error only. See United States v. Vonn, 535 U.S. 55, 59 (2002). To demonstrate
plain error, Perry must show a forfeited error that is clear or obvious that
affects her substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If she makes such a showing, we have the discretion to correct the error
but will do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
While Perry had prior felony drug convictions, the Government did not
file an information seeking enhanced statutory penalties. Accordingly, Perry
did not face the enhanced statutory penalties, and she was correctly
admonished that she faced a statutory minimum sentence of five years of
imprisonment and a statutory maximum sentence of 40 years of imprisonment.
See 21 U.S.C. §§ 841(b)(1)(B), 851(a)(1); United States v. Noland, 495 F.2d 529,
533 (5th Cir. 1974). Thus, Perry has not shown that the district court
committed error, plain or otherwise, by incorrectly admonishing her regarding
her statutory minimum sentence.
For the first time on appeal, Perry argues that the district court
committed plain error in violation of Federal Rule of Criminal Procedure
11(b)(3) by accepting her guilty plea without a sufficient factual basis. Because
Perry did not object to the sufficiency of the factual basis in the district court,
review is for plain error. See United States v. Palmer, 456 F.3d 484, 489 (5th
Cir. 2006).
In the factual resume, Perry admitted that she received large quantities
of methamphetamine from Lewis, usually on consignment; that she distributed
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No. 14-10233
the methamphetamine to her own customers; and that she returned the money
to Lewis. The purchase on consignment of methamphetamine for
redistribution from Lewis was sufficient, by itself, for the district court to draw
an inference that Perry participated in a methamphetamine distribution
conspiracy. See United States v. Posada-Rios, 158 F.3d 832, 859-60 (5th Cir.
1998). Furthermore, the PSR contained information that Perry worked under
the direction of Lewis, that Perry received some of Lewis’s customers when she
began selling methamphetamine, and that Perry rented an apartment that
was used as a stash house for methamphetamine and money by Perry, Lewis,
and co-defendant Cary Wayne Yeathermon. This evidence was also sufficient
to show that Perry participated in a methamphetamine distribution
conspiracy. See United States v. Maseratti, 1 F.3d 330, 338 (5th Cir. 1993);
United States v. Arzola-Amaya, 867 F.2d 1504, 1512-13 (5th Cir. 1989).
Perry’s assertion that the PSR is unreliable is without merit. While the
PSR included more information than was included in the factual resume, this
does not show that the PSR contradicted the factual resume; it merely shows
that the PSR was more thorough. The PSR did state, in contradiction to the
factual resume and the rest of the PSR, that “[t]here is no information that
Perry conducted drug transactions with M. Lewis or her customers.” However,
this statement, in the context it was made, was clearly a typographical error
with Lewis’s name inserted in place of co-defendant Brittany Ann Barron’s
name. This typographical error in the PSR is not a basis for reversal. See
United States v. Huerta, 182 F.3d 361, 363-66 & n.1 (5th Cir. 1999).
The information in the factual resume and the PSR was sufficient for the
district court to determine that Perry committed the crime to which she
pleaded guilty. See Posada-Rios, 158 F.3d at 859-60; Maseratti, 1 F.3d at 338.
Accordingly, the district court did not commit error, plain or otherwise, by
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accepting Perry’s guilty plea without a sufficient factual basis. See United
States v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008); United States v.
Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006).
Perry argues that the district court’s drug quantity calculation was
clearly erroneous. While Perry objected to the drug quantity calculation, she
did not present any evidence showing that the information in the PSR was
unreliable. Accordingly, the district court was free to adopt the facts set forth
in the PSR without further inquiry. See United States v. Alford, 142 F.3d 825,
831-32 (5th Cir. 1998). Contrary to Perry’s assertion, the district court’s
method of estimating the drug quantity attributable to Perry was reasonable.
See United States v. Betancourt, 422 F.3d 240, 246-48 (5th Cir. 2005). As noted
above, the typographical error in the PSR is not a basis for reversal. See
Huerta, 182 F.3d at 363-66 & n.1. Because Perry has not shown that the drug
quantity calculation was implausible in light of the record as a whole, she has
not shown that it was clearly erroneous. See Betancourt, 422 F.3d at 246-48.
AFFIRMED.
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