United States Court of Appeals
For the Eighth Circuit
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No. 22-2476
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jeffrey M. Perry
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: December 12, 2022
Filed: May 8, 2023
[Unpublished]
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Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.
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PER CURIAM.
Jeffrey M. Perry challenges his 24-month revocation sentence as substantively
unreasonable. He argues that the district court1 failed to provide a sufficient
1
The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri.
justification for its upward variance from the Guidelines range of 8 to 14 months’
imprisonment. We affirm.
I. Background
Perry has an extensive record of federal and state crimes involving unlawful
possession of firearms. In 2004, he was convicted twice, in two separate cases in
Missouri state court, of the crime of unlawful use of a weapon for possessing guns
in 2002 and for possessing another gun in 2003.
In 2005, Perry was convicted in federal court of being an unlawful user in
possession of a firearm (“2005 case”). He was sentenced to 36 months’ imprisonment,
followed by 3 years of supervised release. Perry’s supervised release was revoked
twice because of a domestic assault and drug use.
In 2013, Perry was charged in federal court with being a felon in possession of
firearms (“2013 case”). He pleaded guilty to the charge and was sentenced to 36
months’ imprisonment, followed by 3 years of supervised release.
In July 2016, Perry began the instant term of supervised release in the 2013
case. In September 2016, Perry’s probation officer filed a violation report, alleging
that Perry violated conditions of his supervised release by testing positive for
marijuana and changing a sweat patch late. Perry denied ingesting marijuana,
maintaining that he had been at a birthday party where others were smoking it. Perry
admitted to changing his sweat patch late. Perry agreed to a modification of his
conditions of supervised release that required him to perform 25 hours of community
service.
On October 3, 2018, Perry’s probation officer filed another violation report,
alleging that Perry had violated several conditions of supervised release. Specifically,
the report alleged that Perry violated conditions prohibiting him from committing
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another crime, from possessing a firearm, and for being untruthful with his probation
officer. According to the report, on August 23, 2018, probation officers arrived
unannounced at a house where Perry was renting a room on the second floor. Perry
delayed answering the door and claimed he was cleaning his room. The officers
searched Perry’s unkempt room. On the floor, they found a round of .40 caliber
ammunition. Perry denied having any guns and claimed that the bullet was old and
probably fell out of a drawer while he was cleaning up. The bullet, however, did not
appear to be old.
The report further stated that on October 2, 2018, the probation officers
returned to the house. Perry was outside working on a vehicle. When he saw the
officers, he ran toward the house, ignoring the probation officers’ order to stop. Perry
ran inside and shut the door behind him. One of the probation officers could see
movement on the staircase inside. A short time later, Perry opened the door. He first
claimed that he ran because a woman was inside and he wanted to make sure she was
clothed. He then changed his story, stating that he had flushed some marijuana down
the toilet that belonged to the woman. The probation officers did not hear a toilet
flush.
The probation officers searched the house. They located a cell phone
containing a photograph of what appeared to be a semi-automatic, AR-style assault
rifle laying on Perry’s bed in his room. The photograph had been taken the day prior.
The probation officers also found three guns in another unoccupied bedroom in the
house. First, they located the AR-style assault rifle (depicted in the photograph on
Perry’s phone) under some cushions. The rifle was loaded with 30 rounds. Second,
they located a .40 caliber handgun under a mattress. The handgun was loaded with
a round in the chamber and 15 rounds in the magazine. Third, they found a 9mm
handgun in a backpack under the bed. It was loaded with a round in the chamber and
14 rounds in the magazine. This 9mm handgun was the exact same gun Perry had
previously been convicted of unlawfully possessing in the 2013 case.
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Perry was arrested for being a felon in possession of a firearm. The district
court subsequently issued an arrest warrant for the supervised-release violations.
In March 2019, a grand jury charged Perry in a new case with being a felon in
possession of the three firearms that the probation officers had found during the
October 2, 2018 search (“2019 case”). Eventually, Perry pleaded guilty to possessing
the two handguns.
On June 27, 2022, the district court presided over a combined final revocation
hearing (for the alleged supervised-release violations in the 2013 case) and
sentencing hearing (for the new conviction in the 2019 case). Perry admitted to all the
violations alleged in the violation report dated October 3, 2018.
The district court calculated the Guidelines ranges for both the revocation
sentence in the 2013 case and the sentence for the new conviction in the 2019 case.
The Guidelines range for the revocation sentence in the 2013 case was 8 to 14
months’ imprisonment. The Guidelines range for the sentence in the 2019 case was
37 to 46 months’ imprisonment.
After affording Perry the opportunity for allocution, the district court imposed
a 24-month revocation sentence in the 2013 case. In the 2019 case, the district court
imposed a 46-month sentence, ordered that sentence to run consecutively to the 24-
month revocation sentence, and imposed a three-year term of supervised release to
follow.
In imposing the sentences, the court made clear that it had “consider[ed] the
factors under 18 U.S.C. [§] 3553(a) in both these cases.” R. Doc. 89, at 13. It found
“some things . . . concerning.” Id. Specifically, it noted that Perry repeatedly
committed “a lot of weapons offenses.” Id. “[P]art of the idea of a sentence,” the court
explained, “is to deter people” and should “hopefully encourage [Perry] and other
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people not to continue this behavior.” Id. It additionally discussed the sentencing
factor of “respect for the law” and highlighted that Perry’s supervision was “revoked
twice” in the 2005 case and was about to be revoked in the 2013 case. Id. “After
consideration of all those factors,” including “the need for deterrence,” “[t]he need
to protect the public” in light of Perry’s repeated gun violations, “[t]he need for
respect for the law, [and] the need to avoid unwarranted sentence disparity among
defendants with similar records who have been found guilty of similar conduct,” the
district court imposed the 24-month revocation sentence. Id. at 14. It explained its
variance from the Guidelines as follows:
Upon release from imprisonment on this case you shall not serve
any more supervised release. We’re going to finish this. That’s a
variance above the guidelines and that reflects how you’ve done on
supervision before. And the fact that you were on supervision for the
very crime that you are being revoked for; right? Your own supervision
for being a felon in possession of a firearm, and we’re back here again
for that very offense. So that is why this is a variance above the
guidelines.
Id. at 14–15.
II. Discussion
On appeal, Perry argues that the district court erred in imposing a revocation
sentence of 24 months’ imprisonment because it failed to provide a sufficient
justification for its upward variance from the Guidelines range of 8 to 14 months’
imprisonment.
“We review the district court’s revocation sentencing decision under the same
deferential abuse-of-discretion standard that applies to initial sentencing proceedings.
Our analysis is performed in two steps: first, we review for significant procedural
error; and if there is none, for substantive reasonableness.” United States v. Clark,
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998 F.3d 363, 367 (8th Cir. 2021) (cleaned up). Here, Perry has not asserted
procedural error; therefore, the sole issue is whether the 24-month revocation
sentence is substantively reasonable.
A sentence is substantively unreasonable if the district court fails to
consider a relevant factor that should have received significant weight,
gives significant weight to an improper or irrelevant factor, or considers
only the appropriate factors but commits a clear error of judgment in
weighing those factors. We afford the court wide latitude to weigh the
§ 3553(a) factors in each case and assign some factors greater weight
than others in determining an appropriate sentence. Just because we
might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court. Thus,
it is an unusual case when we reverse a district court sentence—whether
within, above, or below the applicable Guidelines range—as
substantively unreasonable.
Id. at 369 (internal quotation marks omitted).
“We have not restrained the application of upward variances” “in revocation
sentences.” Id. “Instead, we look to whether the district court considered the factors
set forth in 18 U.S.C. § 3553(a), with reference to the individual circumstances of the
defendant’s case.” Id. (cleaned up).
Having reviewed the record, “we are satisfied that the district court properly
considered the relevant factors when varying upward,” id. at 370, and sufficiently
explained why it was imposing a 24-month revocation sentence. The district court
expressly stated it was considering the § 3553(a) sentencing factors and specifically
discussed several of those factors. It noted Perry’s repeated pattern of committing
weapons offenses and the necessity of imposing a sentence that would deter him and
others from such behavior. The district court also noted that Perry’s prior term of
supervised release for the offense of being an unlawful drug user in possession of a
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firearm had been revoked twice. And the court discussed the need to protect the
public from Perry in light of his repeated illegal possession of guns.
Thereafter, the district court explained its imposition of an upward variance
from the revocation Guidelines range. According to the court, such a variance was
warranted because of Perry’s poor performance during a prior term of supervised
release and because, while on supervised release, Perry committed the same offense
for which he was serving the term of supervised release. “We have repeatedly held
that it is not unreasonable for a sentencing court to demonstrate with an upward
variance that contemptuous disregard for our laws can have serious consequences.”
United States v. Michels, 49 F.4th 1146, 1149 (8th Cir. 2022).
For the aforementioned reasons, Perry’s sentence is not substantively
unreasonable.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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