United States v. Perry , 228 F. App'x 557 ( 2007 )

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 07a0278n.06
Filed: April 13, 2007
No. 06-3514
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA ,
Plaintiff, Appellee
On Appeal from the United States District
Court for the Southern District of Ohio
v.
OCEANUS PERRY ,
Defendant, Appellant
______________________________/
BEFORE: KENNEDY, MOORE, and McKEAGUE, Circuit Judges.
KENNEDY, Circuit Judge. Oceanus Perry appeals his renewed sentence for bank robbery
following remand in light of United States v. Booker, 543 U.S. 220 (2005). On this appeal, he argues
that (1) his renewed sentence is unreasonable and (2) that the jury instruction that led to his
conviction was improper. We AFFIRM.
BACKGROUND
Our earlier opinion in this case, United States v. Perry, 438 F.3d 642 (6th Cir. 2006), cert.
denied, 126 S. Ct. 2045 (2006), sufficiently details the facts in this case. Therefore, we note only
those facts most relevant to this appeal.
Perry was convicted of two bank robberies. Before his conviction in this case, a jury in the
Northern District of Ohio convicted Perry of two counts: one of bank robbery in violation of 18
U.S.C. § 2113(a) and (d) and one of brandishing a firearm during a crime of violence in violation
of 18 U.S.C. § 924(c). He was then transferred to the Southern District of Ohio to stand trial for this,
unrelated, bank robbery. He was again convicted by a jury on both bank robbery and brandishing
counts.
Before sentencing the case was transferred to a different district judge. The judge presiding
over the conviction proceedings recused himself from sentencing because he had received
threatening letters from Perry. The new judge declined to add a two-level adjustment to Perry’s
offense level calculation for obstruction of justice on account of these letters and sentenced him to
63 months for the bank robbery charge, 41 months of which was to run concurrently with the
sentence imposed by the Northern District of Ohio on the earlier unrelated robbery and brandishing
charges and 22 months of which was to run consecutively to them.
Section 924(c) requires that a district court impose a mandatory minimum sentence for
brandishing a firearm during a crime of violence. This mandatory minimum is in addition to any
sentence the defendant receives for the underlying crime of violence. 18 U.S.C. § 924(c)(1)(A). The
minimum penalty for the first conviction for brandishing under § 924(c) is 7 years. Id. §
924(c)(1)(A)(ii). The minimum penalty for any subsequent conviction for brandishing is 25 years.
Id. § 924(c)(1)(C)(i). In this case, the 41-month concurrent portion of Perry’s sentence for bank
robbery, while concurrent with the 41-month sentence Perry received for bank robbery in the
Northern District, did not overlap with the mandatory 7-year sentence for brandishing a firearm
during that crime. The judge in this case also sentenced Perry to the mandatory 25 years on the
brandishing count, which is required by statute to run consecutively to all of his other sentences. As
a result, the combined sentence is 37 years and 3 months; 7 years for the first brandishing offense,
25 years for the second brandishing offense, 41 months for the first bank robbery, and 22 months of
consecutive time for the second bank robbery.
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Perry appealed the conviction and sentence in the Southern District on numerous grounds.
We affirmed the conviction on both counts as well as the mandatory sentence for the violation of 18
U.S.C. § 924(c). Perry, 438 F.3d at 653. Nonetheless, in light of United States v. Booker, 543 U.S.
220 (2005), we remanded for reconsideration of the sentence imposed for the Southern District bank
robbery charge. The district judge reimposed the 63-month sentence, again with 41 months to run
concurrently with and 22 months to run consecutively to Perry’s earlier Northern District sentence.
Perry has timely appealed.
ANALYSIS
I. Reasonableness of the Sentence
Post-Booker, we review sentences for reasonableness. United States v. Collington, 461 F.3d
805, 807 (6th Cir. 2006). Our circuit considers this a two-fold inquiry: Was the sentence imposed
both (a) procedurally and (b) substantively sound? Id. at 808. Procedural reasonableness requires
the district judge to “consider” the factors outlined in 18 U.S.C. § 3553(a) and explain why the
factors justify the sentence imposed; the purpose of this requirement is to facilitate appellate review.
United States v. James Williams, 432 F.3d 621, 623 (6th Cir. 2005). “[T]his standard does not
require that a judge be an automaton, listing inapposite factors by rote.” United States v. Smith, 474
F.3d 888, 2007 U.S. App. LEXIS 1707, *12 (6th Cir. 2007). A sentence fulfills the requirement of
substantive reasonableness unless “the district court ‘select[s] the sentence arbitrarily, bas[es] the
sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an
unreasonable amount of weight to any pertinent factor.’” Collington, 461 F.3d at 808 (citing United
States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)). Even post-Booker, however, we still defer to
the United States Sentencing Guidelines (“Guidelines”) as they reflect “nearly two decades of
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considered judgment about the range of appropriate sentences,” United States v. Buchanan, 449 F.3d
731, 736 (6th Cir. 2006) (Sutton, J., concurring). As such, we attach a presumption of
reasonableness to a sentence within the range recommended by the Guidelines. United States v.
Leonard Jermain Williams, 436 F.3d 706, 708 (6th Cir. 2006).
At the second sentencing hearing, the court noted that the recommended range was 51 to 63
months. Perry does not dispute that computation. The court noted its obligation to consider the §
3553(a) factors and found that the nature of the circumstances were “quite aggravated.” In addition,
it recognized the need for “deterrence and protection of the public.” It recognized but did not give
considerable weight to Perry’s participation in the drug program and work record in prison. Finally,
it concluded that, in light of all the factors, the sentence originally imposed was appropriate. Upon
review, we conclude that the court’s discussion satisfied the procedural reasonableness requirement.
Perry argues that a sentence of, effectively, 22 months is greater than necessary to comply
with the purposes of sentencing because he is already serving approximately 35 years. This
argument is erroneous. While the 35-year sentence, which Congress has made mandatory, is
certainly a long time, that fact does not convince us that Perry should, ipso facto, receive reprieve
for his additional crime. Rather, the overall length of sentence is a consideration for the district
judge. The district judge did give Perry some concession both by running almost two-thirds of his
sentence concurrent with the sentence from his earlier conviction and by declining to add a two-level
adjustment to his offense level calculation. As the district judge noted, “it would . . . be illogical to
essentially find that no time was due with regard to the one count upon which the Court is to
resentence.”
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Perry also argues that the court did not properly consider one of the § 3553(a) factors, namely
rehabilitation. He notes that 18 U.S.C. § 3582(a) states that “imprisonment is not an appropriate
means of promoting correction and rehabilitation.” Rehabilitation is but one factor, however. The
district court must consider all the factors, but need not necessarily “engage in a ritualistic
incantation” of the factors. United States v. Chandler, 419 F.3d 484, 488 (6th Cir. 2005) (internal
quotation marks and citation omitted). Therefore, the court’s failure to discuss the rehabilitative
value of the additional 22 months for bank robbery at re-sentencing is not conclusive.1 Rather, the
district court explicitly recognized the applicability of all of the factors and discussed those it thought
were most appropriate. It did not place inappropriate weight on any one factor, did not consider
impermissible factors, and chose a sentence that was within the range recommended by the
Guidelines. Therefore, there is no reason to overturn the presumption that the sentence is
substantively reasonable.
II. Jury Instruction
Perry next contends that the jury instruction that led to his conviction was erroneous. He did
not raise this issue on his first appeal. Therefore, he has waived this claim. “[W]hen a party fails
to seek review of a district court’s final order, it is barred from reasserting that issue in any
subsequent appeals.” United States v. McKinley, 227 F.3d 716, 718 (6th Cir. 2000). “While the
district court may entertain any issues it feels are relevant to the overall sentencing decision
1
While the court discussed, as a favorable factor, Perry’s behavior in prison during the period
from incarceration to resentencing, it did not discuss the rehabilitative value of the consecutive 22
months to which it sentenced Perry for the second bank robbery. It is this omission to which Perry
objects.
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(following a general remand),2 this does not give the parties license to re-assert issues that should
have been raised during an earlier appeal.” Id. (citations omitted).
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
2
We note that we have previously held that Booker remands are not general, but rather are
limited in scope. See United States v. Worley, 453 F.3d 706, 709-10 (6th Cir. 2006).
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