UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4160
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SY ARTHUR PERRI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-cr-00211-D-1)
Submitted: September 25, 2012 Decided: November 7, 2012
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Joshua L. Rogers, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sy Arthur Perri appeals his 108-month sentence after
his guilty plea to being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1) (2006). Perri
challenges the district court’s calculation of his advisory
Guidelines range. * We affirm.
This court reviews a sentence for procedural and
substantive reasonableness using the abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In analyzing
procedural reasonableness, this court must first determine
whether the district court correctly calculated the advisory
Guidelines range. Lynn, 592 F.3d at 575. “The [G]overnment
bears the burden of proving the facts necessary to establish the
applicability of [a sentencing] enhancement by the preponderance
of the evidence.” United States v. Garnett, 243 F.3d 824, 828
(4th Cir. 2001). “We review factual findings for clear error,
and legal conclusions de novo.” United States v. Davis, 679
*
Perri also contends that the “assumed error harmlessness
inquiry” from United States v. Savillon-Matute, 636 F.3d 119,
123 (4th Cir.), cert. denied, 123 S. Ct. 454 (2011), does not
apply. Because we conclude that the district court did not
procedurally err, we need not determine the applicability of
Savillon-Matute to this case.
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F.3d 177, 182 (4th Cir. 2012); United States v. Harvey, 532 F.3d
326, 328 (4th Cir. 2008) (defining clear error).
Perri first challenges the application of a cross-
reference in U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.1(c)(1)(A) (2011), to USSG § 2X1.1(a), which, in turn,
requires application of the Guidelines provisions relating to
robbery. See USSG § 2B3.1(a), (b)(2)(B), (b)(4)(A). We
conclude that the district court did not clearly err in its
findings of fact and that the factual findings support
application of the cross-reference because reliable evidence
demonstrated that Perri used the unlawful firearm in connection
with a robbery.
Next, Perri argues that the district court should not
have imposed a four-level enhancement for abduction pursuant to
USSG § 2B3.1(b)(4)(A). The district court found that Perri
forcibly accompanied a victim from one room in a house to
another room. See USSG § 1B1.1 cmt. n.1(A) (defining abducted).
We conclude that these facts warrant application of the
enhancement. See United States v. Osborne, 514 F.3d 377, 387-90
(4th Cir. 2008).
Finally, Perri contests the application of a two-level
enhancement for reckless endangerment during flight pursuant to
USSG § 3C1.2. The district court found that Perri attempted to
flee from arrest and, in the process, “flailed” a firearm. We
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conclude that this conduct is sufficient to support the
enhancement.
Finding no error in the district court’s calculation
of Perri’s Guidelines range, we conclude that Perri’s sentence
is procedurally reasonable. Perri does not contest the
substantive reasonableness of his within-Guidelines sentence.
Accordingly, we affirm the judgment of the district court. 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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