UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5119
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ERNEST PERRY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:08-cr-00399-HEH-1)
Submitted: September 10, 2010 Decided: October 29, 2010
Before KING, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Stephen W.
Miller, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ernest Perry appeals his sentence of 115 months in
prison and eight years of supervised release after pleading
guilty to distributing five grams or more of cocaine base within
1000 feet of a school, in violation of 21 U.S.C. §§ 841, 860
(2006). On appeal, Perry contends that his 115-month prison
sentence is substantively unreasonable, because it is greater
than necessary to meet the purposes of sentencing. * We affirm.
We review a sentence imposed by the district court
under a deferential abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires us to ensure that the district court committed
no significant procedural error, such as improperly calculating
the guideline range, failing to consider the 18 U.S.C. § 3553(a)
(2006) factors, or failing to adequately explain the sentence.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances
and giving “due deference to the district court’s decision.”
*
Although he is represented by counsel, Perry has filed a
pro se letter with this court requesting that we apply the “new
guideline crack amendments” to his case. However, Perry was
properly sentenced based on the guidelines in effect at the time
that he was sentenced. See 18 U.S.C. § 3553(a)(4) (2006); U.S.
Sentencing Guidelines Manual § 1B1.11(a) (Nov. 2009).
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Gall, 552 U.S. at 51. On appeal, we presume that a sentence
within a properly calculated guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
The district court properly determined that Perry’s
guideline range was 92 to 115 months based on a total offense
level of twenty-three and criminal history category VI. Perry
had seventeen criminal history points, even though many of his
prior crimes were not assessed any points. Perry requested a
sentence at the low end of the guideline range based on three
reasons: the crack/powder disparity; “the fact that while the
criminal history in this case is lengthy, Mr. Perry’s most
serious/violent crimes occurred when he was a juvenile”; and his
post-offense rehabilitation while incarcerated.
After hearing from the parties, the district court
commended Perry for the significant progress he had made while
incarcerated, but explained that based on his criminal history,
the court was not convinced of the likelihood that he would be
rehabilitated as a result of a sentence at the low end of the
guideline range. Moreover, the fact that he had been the one to
request that the drug transaction take place within 1000 feet of
a school was another negative consideration. Having considered
the guidelines as advisory and the factors under 18 U.S.C.
§ 3553(a) (2006), the district court determined that a 115-month
sentence was adequate but not longer than necessary to promote
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respect for the law, provide deterrence, and protect the
community. The district court further explained that while an
upward variance or departure may have been warranted in his
case, the court had decided not to sentence him outside his
guideline range in light of his attorney’s representations
regarding the progress he had made during his period of
confinement.
On appeal, Perry argues his sentence is substantively
unreasonable because it is greater than necessary to serve the
purposes of sentencing. Specifically, he contends the district
court gave excessive weight to his prior convictions and “never
seemed to consider or acknowledge that Mr. Perry’s violent
conduct occurred when he was a juvenile, almost twenty years
prior.” However, as noted by the Government, Perry continued to
commit violent crimes after becoming an adult, including his
convictions for breaking and entering, robbery, malicious
wounding, and assault on a family member. Moreover, even though
none of his juvenile offenses were assessed criminal history
points, Perry still had seventeen points, and the district court
was not limited to considering his violent offenses.
Perry also argues the district court was “dismissive
of arguments made by counsel concerning the fact that this was a
crack case involving only 5.1 grams of crack cocaine” and “never
explained in detail why a sentence of 115 months instead of a
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sentence of 92 months was required in this case.” However, the
Government argued that this was a serious offense because it
took place at a school putting children at risk, distribution of
crack cocaine was a significant problem in the area, and other
violent crimes were associated with the offense. The district
court explained the fact that Perry requested that the drug
transaction take place at a school was a negative consideration,
that the court was not convinced he would be rehabilitated as a
result of a sentence at the low end of the guidelines, and the
court believed a 115-month sentence was adequate but not longer
than necessary to promote respect for the law, provide for
deterrence, and protect the community. Based on a totality of
the circumstances, and giving due deference to the district
court’s decision, we conclude that the sentence is reasonable.
We therefore affirm the district court’s judgment. We
dispense with oral argument because 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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