United States v. Brian Perryman

Case: 10-10433 Document: 00511413585 Page: 1 Date Filed: 03/16/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT Fifth Circuit
FILED
March 16, 2011
No. 10-10433
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BRIAN EUGENE PERRYMAN,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-115-9
Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
In exchange for the Government’s agreement to drop other charges against
him, Brian Eugene Perryman pleaded guilty to two counts of aiding and abetting
the investment of illicit drug profits in violation of 21 U.S.C. § 854 and18 U.S.C.
§ 2 and was sentenced to a 97-month term of imprisonment. Perryman argues
that the sentencing court plainly erred by imposing a dangerous weapon
sentence enhancement pursuant to U.S.S.G. § 2D1.1(b)(1).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-10433 Document: 00511413585 Page: 2 Date Filed: 03/16/2011
No. 10-10433
Perryman was a member of a methamphetamine-trafficking organization
run by his uncle, Thomas L. Gerry. The Presentence Report (PSR) recommended
the challenged sentence enhancement based on its report that Perryman
received methamphetamine and drug proceeds directly from Gerry and other
members of the organization who were known to possess firearms in the course
of their drug trafficking activities. Perryman did not object to the
recommendation or offer any evidence or argument that it was not reasonably
foreseeable to him that his coconspirators possessed and carried firearms. As
the propriety of the § 2D1.1 enhancement is a factual issue that could have been
resolved if Perryman had objected in the district court, no plain error can have
occurred. See United States v. Rodriguez, 602 F.3d 346, 361-62 (5th Cir. 2010);
United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010). Moreover, we
note that the record supports the sentencing court’s application of the dangerous
weapon enhancement. See Zapata-Lara, 615 F.3d at 390; United States v.
Reasor, 541 F.3d 366, 369 (5th Cir. 2008).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED.
2