United States v. Jason Perry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4359
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON PERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia,
at Clarksburg. Irene M. Keeley, Senior District Judge. (1:17-cr-00032-IMK-MJA-25)
Submitted: January 31, 2019 Decided: February 7, 2019
Before GREGORY, Chief Judge, WILKINSON, Circuit Judge, and SHEDD, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles T. Berry, Fairmont, West Virginia, for Appellant. Zelda Elizabeth Wesley,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Perry pled guilty, pursuant to a plea agreement, to possession of a firearm by
a prohibited person, in violation of 18 U.S.C. §§ 922(g)(3), 924(a)(2) (2012). On appeal,
counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious grounds for appeal but questioning whether: (1) the district
court erred in enhancing Perry’s sentence pursuant to U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(6)(B) (2016); (2) counsel was ineffective for failing to negotiate a provision
in the plea agreement stipulating that § 2K2.1(b)(6)(B) should not apply; and (3) the
prosecutor engaged in misconduct by acquiescing to the application of the
§ 2K2.1(b)(6)(B) enhancement. Perry was notified of his right to file a pro se brief but
has not done so. We affirm.
As to Perry’s claimed sentencing error, “[i]n determining whether a district court
properly applied the advisory [Sentencing] Guidelines, including application of any
sentencing enhancements, we review the district court’s legal conclusions de novo and its
factual findings for clear error.” United States v. McKenzie-Gude, 671 F.3d 452, 462-63
(4th Cir. 2011). As relevant here, the Guidelines provide for a four-level increase to the
base offense level for a firearm conviction if an individual “possessed any firearm . . . in
connection with another felony offense.” USSG § 2K2.1(b)(6)(B). “A defendant
possesses a firearm ‘in connection with’ another felony when the ‘firearm facilitated, or
had the potential of facilitating the other offense.’” McKenzie-Gude, 671 F.3d at 463.
“This requirement is satisfied if the firearm had some purpose or effect with respect to
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the other offense, including if the firearm was present for protection or to embolden the
actor.” Id. at 464 (internal quotation marks omitted).
The facts established by the presentence report and by the Government during the
guilty plea hearing are sufficient to establish that Perry committed a felony offense by, at
the least, aiding another in a conspiracy to distribute oxycodone, * in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (2012), and 18 U.S.C. § 2(a) (2012). Because the
other felony was a drug trafficking offense, and because Perry possessed the firearm in
close proximity to the oxycodone at issue in that offense, the Guidelines’ commentary
calls for the application of the § 2K2.1(b)(6)(B) enhancement. See USSG § 2K2.1 cmt.
n.14(B)(ii) (stating that § 2K2.1(b)(6)(B) applies “in the case of a drug trafficking offense
in which a firearm is found in close proximity to drugs”).
Next, Perry’s claim of ineffective assistance of counsel is cognizable on direct
appeal only if ineffectiveness of counsel conclusively appears on the record. United
States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014); see Strickland v. Washington, 466
U.S. 668, 687, 688 (1984) (setting forth ineffective counsel standard). The record before
us does not conclusively establish ineffective assistance of counsel, and Perry’s claim
therefore should be raised, if at all, in a 28 U.S.C. § 2255 (2012) motion. See Galloway,
749 F.3d at 241.
*
Although the district court appears to have relied on simple possession of
oxycodone to support this enhancement, “[w]e may affirm the district court on the basis
of any conduct in the record that independently and properly should result in an increase
in the offense level by virtue of the enhancement.” United States v. Jinwright, 683 F.3d
471, 488 (4th Cir. 2012) (alterations and internal quotation marks omitted).
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Finally, “[t]o prevail on [his] claim of prosecutorial misconduct, [Perry] must
show (1) that the prosecutor’s remarks and conduct were, in fact, improper and (2) that
such remarks or conduct prejudiced the defendant to such an extent as to deprive the
defendant of a fair [sentencing determination].” United States v. Allen, 491 F.3d 178,
191 (4th Cir. 2007). Because Perry did not raise this claim below, we review the claim
for plain error only. United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). We
conclude that the record does not reveal the existence of any prosecutorial misconduct,
and thus we find no plain error in this regard.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm the district court’s
judgment. This court requires that counsel inform Perry, in writing, of the right to
petition the Supreme Court of the United States for further review. If Perry requests that
a petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Perry.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
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