United States v. Te'aira Perry ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0370n.06
Case No. 17-3934
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 24, 2018
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
TE’AIRA PERRY, ) OHIO
)
Defendant-Appellant. )
)
)
BEFORE: GILMAN, GIBBONS, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. Te’aira Perry drove a getaway car in three bank robberies. After
the FBI caught on and brought her in for questioning, she confessed, told them what she knew,
and pled guilty to three counts of aiding and abetting bank robbery. The district court sentenced
her to a Guideline sentence of sixty months in prison. She now appeals her sentence.
I.
Perry argues that the district court committed two procedural errors when calculating her
Guidelines range. First, she claims that the district court erred by using her accomplices’ conduct
as a basis for enhancing her sentence. And second, she contends that the district court should have
given her a larger departure for substantial assistance. We affirm the district court in both respects.
Case No. 17-3934
United States v. Perry
Sentencing Enhancements. The district court increased Perry’s sentence because her
accomplices used handguns and physically restrained some of the bank tellers during the robberies.
U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(C), (b)(4)(B) (U.S. Sentencing Comm’n 2016).
Perry claims that this was error because there was no evidence showing that she was “aware” her
accomplices had guns or that they were planning to restrain the tellers when she dropped them off
at the bank. In aider and abettor cases, however, the defendant does not have to actually know
what her accomplices are going to do; instead, her accomplices’ conduct must be “reasonably
foreseeable.” U.S.S.G. § 1B1.3(a)(1)(B); see also United States v. Catalan, 499 F.3d 604, 607
(6th Cir. 2007). And “reasonably foreseeable” it was.
To start, Perry admitted that she knew the robbers’ ringleader owned guns and even knew
the colors of the guns (silver and black). Perry also told the FBI that she saw at least one
accomplice hitch up his pants, indicating (at least to the district court) that a gun was there. And
perhaps most importantly, Perry acknowledged that “based upon how robberies take place, a
firearm or firearms were likely to be used.” R. 53, PSR ¶ 33. A reasonable person who knows
that her accomplices are about to commit a robbery, who knows that her ringleader owns guns,
and who acknowledges that guns are often used in robberies, should easily foresee that guns were
going to be part and parcel of those robberies.
Perry fares no better on the physical-restraint enhancement. Under the Guidelines,
physically restraining a bank teller includes pointing a gun at him and forcing him to move. United
States v. Coleman, 664 F.3d 1047, 1050–51 (6th Cir. 2012) (holding the physical-restraint
enhancement applies to a defendant who pointed his pistol at a bank employee and ordered the
employee out of his office); accord United States v. Smith-Hodges, 527 F. App’x 354, 356 (6th
Cir. 2013). And as this circuit has recently stated, “an accomplice to robbery should foresee that
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Case No. 17-3934
United States v. Perry
robbery likely entails physical restraint or worse.” United States v. Carpenter, 819 F.3d 880, 893
(6th Cir. 2016), rev’d on other grounds, Carpenter v. United States, 138 S. Ct. 2206 (2018). That
conclusion holds true here. Any reasonable person knows that when people rob a bank, they need
access to the money. And common-sense indicates that a bank robber with a gun will point that
gun at a teller and force that teller to help get access—as the robbers did in two of the robberies
here.
Since the record contains no evidence suggesting that a reasonable person standing in
Perry’s shoes would not have foreseen either the guns or the physical restraint of the bank tellers,
the district court did not clearly err. See United States v. Dupree, 323 F.3d 480, 490 (6th Cir.
2003) (explaining that whether something is “reasonably foreseeable” is a question of fact
reviewed under the clear-error standard).
Substantial Assistance. As part of Perry’s plea deal, the government agreed to recommend
a four-level downward departure for Perry’s substantial assistance to investigators. Nevertheless,
the district court rejected that recommendation and departed two levels instead. Perry claims that,
in doing so, the district court considered the wrong factors under § 5K1.1 and did not give the
government’s recommendation enough “deference.” See U.S.S.G. § 5K1.1. We disagree.
Courts of appeals do not review the amount of a substantial assistance departure. Rather,
we review whether a district court understood its discretion and applied the Guidelines correctly.
See United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008). Although district courts often
accord “substantial weight” to the government’s recommendation regarding a substantial
assistance departure, that deference is not mandatory. U.S.S.G. § 5K1.1 cmt. n.3. Instead, § 5K1.1
explicitly leaves the final decision in the hands of the district court, requiring only that the court
consider certain factors. Id. § 5K1.1 (“The appropriate reduction shall be determined by the court
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United States v. Perry
. . . .” (emphasis added)). Here, the district court held an hour-long side-bar with both parties and
considered the relevant § 5K1.1 factors before ruling on the motion. After the side-bar, the district
court ultimately decided that Perry’s assistance was not as useful, timely, or truthful as the
government contended. Because Perry has not identified any factor that the court failed to
consider, we find no error in the court’s decision.
II.
Finally, Perry contends that her sixty-month sentence is substantively unreasonable. We
review the substantive reasonableness of a sentence under the abuse-of-discretion standard. Gall
v. United States, 552 U.S. 38, 41 (2007). And because Perry’s sentence is within the Guidelines
range, we begin our analysis with the presumption that it is reasonable. United States v. Kamper,
748 F.3d 728, 739–40 (6th Cir. 2014).
During sentencing, Perry stated that she participated in the robberies only because the
group’s ringleader (who also happens to be the father of her child) abused her. Accordingly, she
asked the district court for a downward variance. Before ruling on the motion, the district court
heard testimony to determine whether any abuse occurred and, if so, whether Perry participated in
the robberies because of that abuse. After hearing from Perry’s witnesses, the court denied the
variance on two grounds. First, the district court found that Perry’s abuse claim lacked credibility.
The testimony of Perry’s witnesses conflicted with her own prior statements to the FBI where she
denied abuse. And Perry presented no other evidence to corroborate her claims, such as 911 calls
or hospital records. Second, the district court found that even if the evidence showed that Perry
had been abused, the evidence also showed that she remained a “willing participant” in the
robberies despite this abuse. R. 70, Pg. ID 618. As a result, the district court denied the motion
to vary downward and imposed a sixty-month sentence.
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United States v. Perry
On appeal, Perry claims that the district court erred in reaching this conclusion by giving
“impermissible weight” to her statements to the FBI. For that proposition, Perry relies on United
States v. Camiscione, 591 F.3d 823 (6th Cir. 2010). Perry, however, misreads our precedent. Our
substantive-review cases, such as Camiscione, state only that we consider, among other things,
whether the district court impermissibly weighed a factor under 18 U.S.C. § 3553(a). Camiscione,
591 F.3d at 832–35; see also United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009). Yet
Perry asks us to reverse not because the district court impermissibly weighed a § 3553(a) factor,
but because the district court impermissibly weighed the wrong facts. This we cannot do. As a
court of appeals reviewing the substantive reasonableness of a sentence, we must give the district
court’s fact-finding and credibility determinations due deference. United States v. Madden,
515 F.3d 601, 613 (6th Cir. 2008). District courts are uniquely positioned “to find facts and judge
their import under § 3553(a).” Gall, 552 U.S. at 51. Further, it is the district court judge that
“hears the evidence” and “has full knowledge of the facts and gains insights not conveyed by the
record.” Id. And with nothing more than Perry’s assertion stating the district court should have
come out the other way, this court is left with little reason to disturb the district court’s reasoned
fact-finding.
* * *
Because Perry’s sentence is neither procedurally nor substantively unreasonable, we
AFFIRM.
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