United States v. Quiney Haroon Perdue

USCA11 Case: 22-10548 Document: 30-1 Date Filed: 03/24/2023 Page: 1 of 18
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10548
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUINEY HAROON PERDUE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:21-cr-00051-ACA-JHE-1
____________________
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2 Opinion of the Court 22-10548
Before WILSON, LUCK, and TJOFLAT, Circuit Judges.
PER CURIAM:
On December 27, 2017, Quiney Haroon Perdue, aiding and
abetting Mehvish Syed, a teller at a Wells Fargo Bank in Birming-
ham, Alabama, embezzled funds entrusted to the bank in the sum
of $59,458. On February 24, 2021, Perdue and Syed were indicted
in the Northern District of Alabama for conspiring to embezzle the
bank’s funds (Count One) 1 and embezzling the bank’s funds
(Count Two),2 and Syed was charged with making false statements
to the FBI on January 3, 2018, during its investigation of the case. 3
Perdue was arrested on June 30, 2021. 4 On November 9,
2021, he pled guilty to Counts One and Two, 5 and on February 15,
2022, the District Court entered a final judgment sentencing him
1 See 18 U.S.C. § 371. Conspiracy to commit offense or to defraud United
States.
2 See id. § 656.
3 See id. § 1001. Statements or entries generally.
4 Syed was arrested around the same time. She was arraigned on April 22,
2021, and admitted to bail. On June 1, 2022, she pled guilty to all three counts
of the indictment. The District Court pronounced a 7-month prison sentence
for each count to be served concurrently with each other at her sentencing
hearing held on February 22, 2023, and entered judgment to that effect on
March 8.
5 Perdue pled guilty without a plea agreement.
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22-10548 Opinion of the Court 3
to concurrent prison terms of 48 months. The Court provided that
the sentences would begin after Perdue completed (1) prison sen-
tences totaling 303 months imposed in the Western District of Ten-
nessee on September 4, 2019, for bank robberies attempted and ex-
ecuted in Memphis, Tennessee, on March 3 and 5, 2018, respec-
tively; and (2) a concurrent sentence of 20 years imposed by the
Circuit Court of Jefferson County, Alabama, for a robbery commit-
ted in Birmingham on April 25, 2017.
Perdue appeals the sentences imposed in the instant case, 48
months’ imprisonment. He seeks the vacation of his sentences and
resentencing on two grounds. First, he claims imprisonment for
48 months is procedurally unreasonable because the District Court
failed to consider the “sentencing circumstances” of his conviction
and sentencing in the Western District of Tennessee case. Second,
he argues his sentences are substantively unreasonable because the
48 months includes an unreasonable upward variance from the
guideline sentence range of 24–30 months’ imprisonment, and be-
cause the sentences are consecutive to the prison sentences he is
presently serving. We are unpersuaded and accordingly affirm.
I.
Perdue contends that the District Court, in imposing a sen-
tence above the guideline sentence range and then providing that
it should run consecutively to the Western District sentence, failed
to adequately consider the purposes of sentencing set out in 18
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4 Opinion of the Court 22-10548
U.S.C. § 3553(a) 6 and, in particular, the record in the Western Dis-
trict of Tennessee case. The Court should have considered that
record “[b]ecause the district court there was punishing [him] for
his escalation in criminal conduct—a pattern which encompassed
the offense conduct here, but reached its apogee in the Memphis
Case.” Appellant’s Br. at 12. What that record shows is essentially
what the Presentence Investigation Report (“PSR”) before the Dis-
trict Court revealed.
The PSR details Perdue’s personal history and behavior
from the time he entered college in 2014 to the date of his sentenc-
ing in this case. In the Fall of 2014, Perdue entered the University
of Alabama at Birmingham (“UAB”) on a football scholarship. At
some point during the Fall term, he was placed on academic pro-
bation. During the Spring term, he was expelled from his
6 Section 3553(a) requires the court in imposing a prison sentence to consider:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the de-
fendant . . . .
18 U.S.C. § 3553(a)(1), (2)(A)–(C).
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dormitory after failing a drug test. UAB terminated its football pro-
gram following the 2014–15 season. 7
After UAB terminated its football program, Perdue trans-
ferred to the University of Kansas in Lawrence, Kansas, to partici-
pate in its football program. He enrolled in the Summer 2015 term,
performed satisfactorily, and then entered the Fall 2015 term.
Thereafter, things went downhill. He was dropped from the foot-
ball program for disciplinary reasons: he disobeyed his coaches,
could not get along with his teammates, and quit going to class.
On December 1, 2015, Perdue was arrested after the police
found marijuana in his student apartment bedroom at the univer-
sity. He was charged in the City of Lawrence Municipal Court with
one count of possession of marijuana and one count of possession
of drug paraphernalia, and on February 4, 2016, pled guilty to both
offenses. He was sentenced to a diversion program.
Perdue soon left Lawrence and returned to Birmingham.
He reentered UAB for the Spring 2016 term. After completing that
term, he enrolled in the Fall 2016 term but was placed on academic
probation for that term. He entered the Spring 2017 term but was
suspended mid-term and evidently never returned to school.
7 UAB has since reinstated its program. Alex Scarborough, UAB reinstates
football for 2016, ESPN (Jun. 1, 2015) https://www.espn.com/college-foot-
ball/story/_/id/12991674/uab-blazers-football-return (last accessed Feb. 9,
2023).
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Around that time, a former member of the UAB football
team, “BH,” introduced Perdue to his mother, “EL.” After meeting
EL, Perdue embarked on a crime spree, committing three rob-
beries and attempting a fourth during a period of 11 months. The
first occurred in Birmingham on April 25, 2017. He and EL devised
a scheme whereby they purported to sell a car on Craigslist, an
online site that allows users to list items for sale. They induced two
individuals—a man and his mother-in-law—to go to a meeting site
in Birmingham so the individuals could inspect the car Perdue and
EL were purporting to sell. After the individuals, the victims, ar-
rived in their own car, Perdue and another man ambushed them.
They ordered the victims to get out of their car and give them their
money. Then, they tazed the victims. One of the victims produced
a pistol and shot Perdue once. Perdue and his accomplice took off
running. Perdue went to the UAB hospital and was treated for life-
threatening injuries. The police arrested Perdue on April 28, 2017,
while he was in the hospital, and charged him with first degree rob-
bery in two cases—one for each victim. On arraignment in the Cir-
cuit Court of Jefferson County, Alabama, on May 4, 2017, Perdue
was released after posting surety bonds of $10,000 for each case.8
8 There are two Alabama criminal dockets associated with this incident, re-
flecting one robbery case for each victim: Case No. CC-2018-000620 and CC-
2018-000621. Bond was $10,000 for each case. First degree robbery is a class
A felony under Ala. Code § 13A-8-41, and $10,000 is at the bottom of the rec-
ommended range for a class A felony under Alabama’s bail schedule. See Ala.
R. Crim. P. 7.2(b). Review of the state court records reveals his bond was
reduced from an initial amount of $200,000 total ($100,000 for each case) to
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On October 16, 2017, while he was out on bond, Perdue was
arrested in Birmingham for several crimes, including: (1) theft of
property in the third degree, which involved receiving stolen prop-
erty—a Glock 23 .40 caliber pistol worth $549; (2) carrying a pistol
without a permit—the Glock; (3) unlawful possession of mariju-
ana, which the indictment indicated was in a quantity for other
than personal use; and (4) unlawful possession of drug parapherna-
lia—a marijuana grinder. Based on these arrests, the Jefferson
County District Attorney moved the Circuit Court to revoke Per-
due’s bail and forfeit the bond he had posted following his arraign-
ment on May 4, 2017. The Court denied the motion, and Perdue
remained free on bail.9
$20,000 total ($10,000 for each case) after he was kept in custody for longer
than 72 hours without being taken before a judge. See Ala. R. Crim. P. 4.3(b)
(providing that a person arrested on a warrant issued upon a complaint who
cannot obtain his release based on conditions provided on the warrant and has
not been taken before a judge for an initial appearance within 72 hours “shall
be released upon execution of an appearance bond in the minimum amount
required by the schedule set forth in Rule 7.2(b)”). The docket sheet for CC-
2018-000621 says he was released on May 14, but the state court records indi-
cate he was released on May 4 for both cases.
9 There are four Alabama criminal dockets associated with these arrests: Case
No. CC-2018-000622 (receiving stolen property, third degree, a class D felony
under Ala. Code § 13A-8-18.1), CC-2018-000623 (possession of marijuana for
other than personal use, first degree, a class C felony under Ala. Code § 13A-
12-213(a)(1)), CC-2018-000624 (carrying the pistol without a license, a misde-
meanor), and CC-2018-000625 (possession of drug paraphernalia, a misde-
meanor). The bond amounts were set at, respectively: $5000, $2500, $300, and
$300. These amounts were at the bottom of the recommended range for each
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8 Opinion of the Court 22-10548
After posting bond for the October 16, 2017 arrests, Perdue
traveled to EL’s Memphis, Tennessee residence. He stayed there
until December 25, 2017, when he briefly returned to Birmingham
with EL to commit the robbery in this case.
Perdue and EL returned to Birmingham because one of Per-
due’s former teammates on the UAB football team, “XM,” called
Perdue with a scheme to steal money from a Wells Fargo bank
branch in Birmingham. XM told Perdue that his girlfriend, Me-
hvish Syed, was a teller at the bank, and that she could give him
upwards of $100,000 in a staged robbery. Then, on December 25,
2017, Perdue and EL drove from Memphis to Birmingham to meet
XM and work through the details of their scheme, including where
to park during the robbery, when to conduct the robbery, and how
to avoid surveillance cameras. XM told them about Syed and de-
scribed her features.
The scheme went as follows. On December 27, Syed ar-
ranged to have an unusually large amount of money in her cash
register for the staged robbery. Syed worked as a back-up commer-
cial lane teller that day. Commercial lane tellers can keep greater
amounts of cash in their registers than ordinary tellers can in order
to service the bank’s business customers. According to Syed’s
statement in a post-incident interview with the FBI on January 3,
charge under Alabama’s bail schedule, except for the receiving stolen property
offense, which had a recommended minimum bond amount of $1,000 as a
class D felony. See Ala. R. Crim. P. 7.2(b).
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2018, Wells Fargo’s policy permitted commercial lane tellers to
keep $25,000 in their registers, whereas ordinary tellers can only
keep $6,000. She also did not clearly mark her lane as a commercial
lane on the day of the robbery, which presumably helped ensure
that business customers did not withdraw out of the additional cash
in her register that she was planning to give Perdue.
That day, at approximately 12:42 P.M., Perdue entered the
bank, approached Syed’s window, and handed her a note purport-
ing to threaten to kill her if she did not put the money from her
register in his bag. The note read: “Run dat money bitch No dot
packs No trackers all the damn money right now or you die.” She
asked him if it was a “change order,” and he responded, “Yeah, this
is a change order.” A change order is the kind of large transaction
that business customers make in the commercial lane. She gave
him $59,458, essentially emptying her drawers except for small
bills. She did not call for security and instead walked away from
the lane quietly after Perdue left the bank. She also did not use
other available security measures, like giving Perdue cash from her
drawer that was equipped with security features. 10 Another
10 The Government stated during Perdue’s change of plea hearing that a “dot
pack and a bait pack” were available to Syed. A “bait pack” can refer to pack-
ages of cash that banks equip with security features, such as GPS trackers that
are activated when the cash leaves the bank, see United States v. Warren, 593
F.3d 540, 542 (7th Cir. 2010), and “dye pack[s]” that explode when the money
leaves the bank, marking the money with dye. See United States v. Santiago-
González, 825 F.3d 41, 44 n.1 (1st Cir. 2016).
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10 Opinion of the Court 22-10548
teller—“GV,” whom Syed was training that day—pressed the silent
security alarm after Perdue left the bank. Syed had told GV that
she was robbed after Perdue walked away from the counter. Per-
due left his note behind.
Following the bank robbery, Syed was interviewed at Bir-
mingham police headquarters. She claimed she was unable to iden-
tify the bank robber in a photographic lineup that included Perdue.
She admitted she had an unusual amount of cash in her drawer on
the day of the robbery. She claimed that she withdrew $30,000
from the bank’s ATM because it was not working, and she wanted
to keep more cash available for customers to withdraw while the
ATM was down. Yet video surveillance footage from the day of
the robbery showed customers withdrawing cash from the ATM.
To explain why she kept all the extra cash in her own drawer, she
said she was too busy to distribute the additional cash from the
ATM to the other tellers. Wells Fargo personnel advised investi-
gators that Syed was in violation of company policy by holding far
more money in her drawers than the company allowed for tellers.
Syed initially agreed to take a polygraph exam at the Birmingham
Police Department on January 8, 2018, but she did not show. The
next time investigators reached out to her, she indicated she was
represented by an attorney.
After the Wells Fargo bank robbery, Perdue returned with
EL to Memphis. There, he and EL split the money from the rob-
bery and spent it on cars and gambling. He did not give Syed or
XM any of the money they conspired to steal from Wells Fargo
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because she failed to make $100,000 available as originally dis-
cussed.
Meanwhile, four days after the incident, an anonymous tip-
ster contacted Crime Stoppers of Metro Alabama in Birmingham
and identified the Wells Fargo bank robbery suspect as Quiney Per-
due. On February 6, 2018, a Birmingham latent print unit located
and processed a latent print on the demand note Perdue left be-
hind, which was identified as from the same source as the known
left thumbprint of Quiney Perdue. A few days later, on February
21, “GM”—Perdue’s former teammate and dormitory roommate
at UAB for the Spring 2015 term, and an intern at the Birmingham
Police Department at the time—identified him on security video
from the Wells Fargo Bank.
Soon after returning to Memphis—and while evidently on
the run for the bank robbery in this case—Perdue attempted two
bank robberies in Memphis, completing the second. He first at-
tempted to rob a First Tennessee Bank branch on March 3, 2018.
During this attempted robbery, he threatened to shoot and kill eve-
ryone in the bank, including himself. Specifically, the note he gave
the teller read: “Give me the money. Hit the button and I’m shoot-
ing you in the face! Nothing out of the first draw. No GPS.11 If a
11 Banks can embed GPS trackers in money to track robbers’ locations after
they leave the bank. See United States v. Moore, 572 F.3d 334, 336 (7th Cir.
2009) (discussing how a GPS embedded in stolen money helped police track
down bank robbers). Perdue presumably referred to such a device in the note
he gave Syed that read “no trackers.”
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12 Opinion of the Court 22-10548
dye pack12 go off I got 17 shots. I’m killing everybody and myself.”
But he left the bank empty-handed after a teller activated the secu-
rity alarm. Then, two days later, on March 5, he and an accomplice
successfully robbed a First Tennessee Bank branch, taking nearly
$30,000. Perdue shot the bank’s security guard multiple times, and
then he and the accomplice jumped over the counter and grabbed
cash out of a teller drawer. The guard went to the hospital in crit-
ical condition and needed three surgeries to treat his wounds.
Perdue was apprehended at EL’s residence on March 9,
2018, as a result of the investigation into the March 5 Memphis rob-
bery and placed in the Memphis jail.13 He was brought into federal
custody for the Memphis bank robberies on March 20, 2018, on a
writ issued by a federal magistrate judge. On March 15, 2019, with-
out a plea agreement, Perdue pled guilty in the United States Dis-
trict Court for the Western District of Tennessee to two counts of
bank robbery 14 and one count of the use, brandish, or discharge of
12 “A security dye pack is a security device utilized by some banks to identify
money stolen during a bank robbery. The security dye pack explodes and
emits dye and pepper gas when removed from the bank.” United States v.
Santiago-González, 825 F.3d 41, 44 n.1 (1st Cir. 2016).
13 He was arrested on March 9 as a Fugitive from Justice with Official Warrant
from the state of Alabama. The warrant was for state charges for the Wells
Fargo robbery involved in this case. The state bank robbery charges were dis-
missed on June 11, 2021, and the charge for being a fugitive from justice was
dismissed on March 13, 2018.
14 See 18 U.S.C. § 2113(a).
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a firearm during a crime of violence.15 Perdue was sentenced to
303 months of imprisonment on September 4, 2019, for the Mem-
phis offenses. The sentence was affirmed on appeal on June 19,
2020. United States v. Perdue, 818 F. App’x 419 (6th Cir. 2020).
Meanwhile, on April 29, 2019, federal investigators inter-
viewed Perdue in Memphis. In addition to any discussion of the
Memphis case, he discussed the Craigslist robbery and the robbery
in this case.
On October 17, 2019, while he was in federal custody on the
sentences imposed in the Memphis case, arrest warrants were
served on Perdue for the charges pending against him in the Circuit
Court of Jefferson Country; i.e., the April 25, 2017 first degree rob-
beries he committed in Birmingham, and the offenses he was ar-
rested for in Birmingham on October 16, 2017, while free on bail
(see supra note 9). Perdue pled guilty in the Circuit Court to the
first degree robberies on May 13, 2021, and the Court sentenced
him to 20 years in prison, the sentences to run concurrently with
the 303-month federal sentence he received for the Memphis bank
robberies. Effectively, this sentence did not add any prison time
for Perdue. The State dismissed the charges relating to the arrests
on October 16, 2017, on May 20, 2021.
Perdue was sentenced for the instant offenses after he was
sentenced in the Western District of Tennessee and Jefferson
15 See 18 U.S.C. § 924(c).
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14 Opinion of the Court 22-10548
County. The PSR calculated Perdue’s criminal history score as 8
and his criminal history category as IV based on his prior convic-
tions. Given a total offense level of 13 and a criminal history of IV,
the PSR called for a sentence of imprisonment ranging from 24–30
months. At the time of his sentencing, Perdue was serving a 303-
month sentence for the Memphis robberies and the 20-year sen-
tence for the Birmingham robberies.
In its sentencing memorandum, the Government argued
that Perdue’s criminal history, the need to promote respect for the
law, and the need for specific deterrence warranted concurrent 60-
month prison sentences, and that the District Court should run the
sentences consecutively to the prison sentences he was serving. In
his sentencing memorandum, Perdue did not object to the PSR’s
findings of fact. He argued that he should receive 30-month con-
current sentences to run concurrently with the sentences he was
serving because of mitigating circumstances related to his personal
history and characteristics. He also argued that the sentences for
the Memphis robberies were long enough to punish him ade-
quately, so the Court did not need to impose consecutive sentences
in this case.
At the sentencing hearing, the Government reiterated its ar-
gument for consecutive sentences totaling 60 months, and Perdue
reiterated his argument for concurrent sentences totaling 30
months. The District Court adopted the factual findings in the
PSR, heard argument from both sides, and heard Perdue’s allocu-
tion.
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The District Court then imposed a 48-month prison sen-
tence for each of the two counts in the indictment to run concur-
rently with each other. The Court explained that the guideline sen-
tence range was insufficient given the progressively violent nature
of Perdue’s conduct, the need for specific deterrence, and the need
to promote respect for the law. The Court also ran the sentences
consecutively to Perdue’s sentences in the federal bank robbery
case in Memphis and the robbery case in Birmingham.
After imposing the sentence, the District Court elicited the
parties’ objections in accordance with Eleventh Circuit precedent.
See United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990),
overruled on other grounds by United States v. Morrill, 984 F.2d
1136, 1137 (11th Cir. 1993) (en banc). Neither party objected. Per-
due now appeals, arguing that the sentences are procedurally un-
reasonable because the District Court did not consider the sentenc-
ing record in the Memphis case when it based its sentences in part
on Perdue’s conduct in that case, and that the sentences are sub-
stantively unreasonable because they are above the guideline sen-
tence range and imposed to run consecutively to his undischarged
terms of imprisonment in the other cases.
II.
An appellate court reviews a sentence for an abuse of discre-
tion, “[r]egardless of whether the sentence imposed is inside or out-
side the Guidelines range.” Gall v. United States, 552 U.S. 38, 51,
128 S. Ct. 586, 597 (2007). An abuse of discretion occurs if in decid-
ing an issue “the district court applies an incorrect legal standard or
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16 Opinion of the Court 22-10548
makes findings of fact that are clearly erroneous.” United States v.
Wilk, 572 F.3d 1229, 1234 (11th Cir. 2009). Procedural sentencing
errors include failing to correctly calculate the guideline range,
treating the guidelines as mandatory, failing to consider the 18
U.S.C. § 3553(a) factors, selecting the sentence based on clearly er-
roneous facts, or failing to adequately explain the chosen sentence,
including any deviation from the guideline range.
Plain error review applies to procedural sentencing chal-
lenges on appeal when the defendant failed to object to the claimed
error before the district court. United States v. Vandergrift, 754
F.3d 1303, 1307 (11th Cir. 2014). “To preserve an issue for appeal,
one must raise an objection that is sufficient to apprise the trial
court and the opposing party of the particular grounds upon which
appellate relief will later be sought.” United States v. Straub, 508
F.3d 1003, 1011 (11th Cir. 2007) (internal quotation marks omitted).
Plain error review applies to Perdue’s procedural reasonableness
claim because he did not specifically object to the District Court’s
reliance on his criminal history without considering the sentencing
circumstances in the case involving the Memphis robberies.
Under plain error review, Perdue cannot prevail unless he
shows: (1) an error occurred, (2) the error was plain, (3) the error
affected his substantial rights, and (4) the error seriously affected
the fairness, integrity, or public reputation of judicial proceedings.
Vandergrift, 754 F.3d at 1307. “When the explicit language of a
statute or rule does not specifically resolve an issue, there can be
no plain error where there is no precedent from the Supreme Court
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22-10548 Opinion of the Court 17
or this Court directly resolving it.” United States v. Castro, 455
F.3d 1249, 1253 (11th Cir. 2006) (internal quotation marks omitted).
Section 3584(a) of Title 18 of the U.S. Code states that, “[i]f
multiple terms of imprisonment are imposed on a defendant at the
same time, or if a term of imprisonment is imposed on a defendant
who is already subject to an undischarged term of imprisonment,
the terms may run concurrently or consecutively.” 18 U.S.C.
§ 3584(a). In determining whether the terms imposed are to run
concurrently or consecutively, the court must consider the
§ 3553(a) factors. 18 U.S.C. § 3584(b).
Here, the District Court did not make a plain procedural er-
ror. Perdue does not cite, and we have not found, a Supreme Court
or Eleventh Circuit case that explicitly requires a district court to
consider, on the record, the “sentencing circumstances” in the
cases involving prior convictions when it considers a defendant’s
criminal history. Section 3553(a)(1), which covers “the nature and
circumstances of the offense and the history and characteristics of
the defendant,” also does not explicitly require a district court to
consider sentencing circumstances from prior cases on the record
in considering the history and characteristics of the defendant. Sec-
tion 3553(a)(2) lacks any explicit requirement to that effect as well.
III.
When reviewing a sentence for substantive reasonableness,
we consider the totality of the circumstances under a deferential
abuse-of-discretion standard. Gall, 552 U.S. at 51, 128 S. Ct. at 597.
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18 Opinion of the Court 22-10548
A court imposes a substantively unreasonable sentence only when
it (1) fails to adequately consider relevant factors that were due sig-
nificant weight, (2) gives significant weight to an improper or irrel-
evant factor, or (3) commits a clear error of judgment in consider-
ing the proper factors. United States v. Rosales-Bruno, 789 F.3d
1249, 1256 (11th Cir. 2015). In determining whether to impose a
variance, a district court may consider the nature of a prior offense
under the § 3553(a) factors, even if the offense was considered in
calculating the defendant’s criminal history score under the guide-
lines. United States v. Williams, 526 F.3d 1312, 1324 (11th Cir.
2008).
Here, Perdue’s sentence was substantively reasonable. The
District Court committed no clear error in judgment by determin-
ing that Perdue’s criminal history, the need to promote respect for
the law, and the need for specific deterrence required an 18-month
upward variance (from the guideline sentence range) and consecu-
tive, rather than concurrent, sentences.
AFFIRMED.