United States v. Perry

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4489

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RODERICK LAMMOND PERRY,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00145-NCT)

Submitted: January 31, 2008 Decided: February 27, 2008

Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

On November 2, 2005, Roderick Lammond Perry was found in

possession of a loaded .40 caliber handgun and 2.3 grams of crack

cocaine. Pursuant to a plea agreement, Perry pled guilty to

possession with intent to distribute cocaine base, in violation of

21 U.S.C.A. §§ 841(a)(1) (2000) and (b)(1)(C) (West 2000 and Supp.

2007), and possession of a firearm after having three previous

convictions for violent felonies or serious drug offenses, in

violation of 18 U.S.C.A. §§ 922(g)(1) (2000) and 924(e) (West 2000

and Supp. 2007). At sentencing, the district court determined

Perry was an Armed Career Criminal within the meaning of 18

U.S.C.A. § 924(e) (West 2000 and Supp. 2007) and that he had a

resulting advisory guidelines range of 188-235 months’

imprisonment. In conformity with this range, the district court

sentenced Perry to 188 months’ imprisonment. Perry timely noted

his appeal and now argues that his sentence was unreasonable. We

affirm for the reasons that follow.

Following United States v. Booker, 543 U.S. 220 (2005),

a district court must engage in a multi-step process at sentencing.

The district court must calculate the appropriate advisory

guidelines range by making any necessary factual findings. United

States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). The court

should then afford the parties “an opportunity to argue for

whatever sentence they deem appropriate.” Gall v. United States,

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128 S. Ct. 586, 596-97 (2007). Then, the sentencing court should

consider the resulting advisory guideline range in conjunction with

the factors set out in 18 U.S.C. § 3553(a) (West 2000 and Supp.

2007), and determine whether the § 3553(a) factors support the

sentence requested by either party. Id. Considering the factors

in § 3553(a) does not require the sentencing court to “robotically

tick through” every subsection of § 3553(a). United States v.

Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). The sentencing

court may not presume that the Guidelines range is reasonable, but

if it decides to impose a sentence outside the Guidelines range it

“must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree of

the variance.” Gall, 128 S. Ct. at 596.

On appeal, we review a sentence for reasonableness,

focusing on whether the district court abused its discretion.

United States v. Pauley, ___ F.3d ___, 2007 WL 4555520 at *5 (4th

Cir. Dec. 28, 2007). This involves two steps, first examining the

sentence for “significant procedural errors,” and second,

evaluating the substance of the sentence. Id. Significant

procedural errors include “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence - including an explanation for any

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deviation from the Guidelines range.” Id. (internal quotations

omitted). “Substantive reasonableness review entails taking into

account the totality of the circumstances, including the extent of

any variance from the Guidelines range.” Id. While the appellate

court may presume a sentence within the Guidelines range to be

reasonable, it may not presume a sentence outside the range to be

unreasonable. Moreover, it must give “due deference” to the

district court’s decision that the § 3553(a) factors justify the

extent of any variance sentence. Id.

On appeal, Perry seizes on the language in 18 U.S.C.A.

§ 3553(a) (West 2000 and Supp. 2007) that a sentencing court is to

“impose a sentence sufficient, but not greater than necessary, to

comply with the purposes set forth in” § 3553(a)(2) and appears to

argue that the district court failed to properly consider “the

nature and circumstances of the offense and the history of the

defendant.” 18 U.S.C. § 3553(a)(1). Simply because the district

court may have weighed the § 3553(a) factors differently than

Perry desired does not establish that the district court committed

a significant procedural error in imposing sentence.

Additionally, Perry’s sentence was substantively

reasonable. Pauley, 2007 WL 4555520 at *5. Perry acquired

numerous felony convictions at a young age and continued to offend

into adulthood. Ultimately, Perry was arrested in possession of

crack cocaine and a loaded .40 caliber handgun and was properly

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characterized as an armed career criminal. These facts were aptly

countered by argument in mitigation from defense counsel and by

Perry’s allocution. This court may presume that Perry’s advisory

guidelines sentence of 188 months was reasonable, and Perry has

failed to rebut such a presumption. See Rita v. United States, 127

S. Ct. 2456, 2459 (2007); Gall, 128 S. Ct. at 597 . Accordingly, we

affirm the judgment of the district court. We dispense with oral

argument as the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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