Case: 20-30359 Document: 00515799537 Page: 1 Date Filed: 03/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 29, 2021
No. 20-30359
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Robert Perkins,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:19-CR-268-1
Before King, Smith, and Haynes, Circuit Judges.
Per Curiam:*
Appellant Robert Perkins pleaded guilty to conspiracy to possess with
intent to distribute 50 grams or more of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and 846. The district court sentenced
him to 156 months of imprisonment and five years of supervised release, a
sentence within the applicable U.S. Sentencing Guidelines range. Perkins
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-30359
now claims that his sentence is both procedurally and substantively
unreasonable. In addition, he argues that the district court committed
reversible error under Federal Rule of Criminal Procedure 32 by permitting
the Government to file late objections to the presentence investigation report
(“PSR”).
With respect to his procedural error claim, Perkins contends that the
district court failed to consider the need to avoid unwarranted sentencing
disparities under 18 U.S.C. § 3553(a)(6). The crux of his argument is that his
co-defendant, Deborah Hawthorne, received a sentence of 132 months, even
though she pleaded guilty to the same offense and, as a career offender, was
subject to a higher guidelines range under § 4B1.1 of the Sentencing
Guidelines. 1 He further argues that this disparity shows that the district
court failed to give appropriate weight to a required § 3553(a) factor and
committed a clear error of judgment in balancing the § 3553(a) factors,
resulting in a substantively unreasonable sentence. Thus, Perkins’s
procedural and substantive reasonableness arguments are predicated on the
same alleged error.
Although the parties dispute the standard of review for Perkins’s
sentencing-error claim, we need not resolve that issue; Perkins’s claim is
unavailing regardless of the appropriate standard. See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Section 3553(a)(6) requires
district courts to consider “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found
1
Perkins claims that the district court did not adequately explain the reason for this
sentencing disparity. However, the district court expressed the opinion that a defendant
who is a career offender for solely drug trafficking offenses should not be treated differently
from any other federal drug-trafficking offender. On that basis, as well as all of the § 3553(a)
factors, including Hawthorne’s history, characteristics, and involvement in the offense, the
district court imposed a below-guidelines sentence.
2
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No. 20-30359
guilty of similar conduct.” See Gall v. United States, 552 U.S. 38, 51 (2007)
(listing the failure to consider § 3553(a) factors as a “significant procedural
error”). However, we have explained that the disparity factor focuses on
“similarly situated defendants nationwide” and “does not require the
district court to avoid sentencing disparities between co-defendants who
might not be similarly situated.” United States v. Guillermo Balleza, 613 F.3d
432, 435 (5th Cir. 2010) (per curiam). Perkins also does not explain why or
how the district court was supposed to assess any disparity between his
sentence and that of a defendant not yet sentenced—Hawthorne was
sentenced after Perkins. Because Perkins points only to the sentence of his
co-defendant as evidence of an unwarranted sentencing disparity, he fails to
establish that the district court committed a § 3553(a)(6) procedural error. 2
Nor has Perkins rebutted the presumption of reasonableness afforded
to his within-guidelines sentence. See United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006); see also Gall, 552 U.S. at 51. His substantive
reasonableness argument is premised entirely on the disparity of his sentence
and Hawthorne’s, which is “insufficient to render a sentence substantively
unreasonable.” United States v. Hernandez, 633 F.3d 370, 379 (5th Cir. 2011);
see also United States v. Stalnaker, 571 F.3d 428, 442 (5th Cir. 2009) (“[A]
disparity of sentences among co-defendants does not, without more,
constitute an abuse of discretion. The defendants cannot rely upon their co-
2
In any event, the record shows that Perkins and Hawthorne were not similarly
situated; there were other sentencing considerations that justified the sentencing disparity.
See Gall, 552 U.S. at 51 (instructing courts to consider the “totality of the circumstances”
when reviewing a sentence). Perkins’s PSR indicated that he admitted to trafficking large
amounts of methamphetamine, at least every other week, whereas Hawthorne’s PSR
contained no such admission. Perkins also admitted some responsibility for convincing
Hawthorne to return to selling drugs. Finally, Hawthorne’s PSR contained additional
mitigating circumstances not applicable to Perkins.
3
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No. 20-30359
defendants’ sentences as a yardstick for their own.” (quotation omitted)).
Consequently, Perkins’s substantive reasonableness argument fails as well.
Finally, Perkins contends that (1) the district court erred by permitting
the Government’s late-filed objections without a finding of good cause; and
(2) one late-filed objection—that he should be held accountable for an
additional kilogram of methamphetamine—adversely influenced his
sentence. Once again, the parties dispute the proper standard of review.
Once again, we do not need to decide the standard of review because,
regardless of the appropriate standard, 3 Perkins has not shown that the
district court reversibly erred. See United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009) (agreeing with other circuits that “not every
procedural error will require outright reversal” and “certain ‘harmless’
errors do not warrant reversal”). Perkins’s speculative claim that the district
court imposed a higher sentence based on the challenged objection is
unsupported by the record. The district court affirmatively overruled one of
the objections and determined that the other one, the focus of Perkins’s
appeal, “ha[d] no effect on the guidelines, so I’ll just . . . note it.” Thus, even
if the district court erred in “permitting” the objections, they were irrelevant
to the sentence and the alleged procedural error was harmless. Id. at 753 (“A
procedural error during sentencing is harmless if ‘the error did not affect the
district court’s selection of the sentence imposed.’” (quoting Williams v.
United States, 503 U.S. 193, 203 (1992)).
3
We have previously stated that “[t]he issue of whether a district court failed to
comply with a Federal Rule of Criminal Procedure is reviewed de novo.” United States v.
Ramirez-Gonzalez, 840 F.3d 240, 246 (5th Cir. 2016). We recognize, however, that district
courts have “broad discretion” in deciding whether to entertain an untimely objection to
the PSR for “good cause,” including considerations of prejudice. United States v. Angeles-
Mendoza, 407 F.3d 742, 749 & n.11 (5th Cir. 2005).
4
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The judgment of the district court is AFFIRMED.
5