United States v. Charles Perry

908 F.2d 56, 1990 U.S. App. LEXIS 11450, 1990 WL 93538
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 11, 1990
Docket89-1839
StatusPublished
Cited by309 cases

This text of 908 F.2d 56 (United States v. Charles Perry) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Charles Perry, 908 F.2d 56, 1990 U.S. App. LEXIS 11450, 1990 WL 93538 (6th Cir. 1990).

Opinions

DAVID A. NELSON, Circuit Judge.

This is an appeal from a sentence imposed under the U.S. Sentencing Guidelines following the defendant’s conviction for conspiracy to distribute cocaine. The trial court increased the offense level under Guideline § 3C1.1 because the defendant fled the jurisdiction while on bond pending sentencing. The defendant challenges this increase, as well as contesting a finding that he was not a “minor participant” in the conspiracy. He also moves to have us appoint a new lawyer for him. We shall deny the motion and affirm the sentence.

I

The defendant, Charles Perry, was indicted on one count of conspiracy to distribute a Schedule II controlled substance. Evidence presented at trial linked him to a cocaine ring headed by a man named Johnny Henderson. The ring distributed hundreds of kilograms of cocaine in the Flint, Michigan, area.

Mr. Perry was arrested at a house in Flint with Johnny Henderson and three other participants in the conspiracy. There was evidence that Mr. Perry lived at the house, which was owned by Johnny Henderson’s father. A search of the residence turned up crack cocaine, marijuana, various weapons and ammunition, currency, a police scanner, and drug paraphernalia.

Robert Kelly, a shoplifter, testified that for six or seven months he ■ made daily deliveries of stolen clothing to Mr. Perry, receiving cocaine in exchange. The clothes were then sold at a store operated by Wanda Henderson.- Witnesses indicated that Mr. Perry had visited Wanda Henderson’s house a number of times.

Darrell Robertson, who pleaded guilty, testified that he and another defendant once helped Mr. Perry weigh half a kilo[58]*58gram of cocaine and package it in one ounce bags. Robertson also said that he “cooked” cocaine (converted powdered cocaine into crack) for Mr. Perry and others.

Mr. Perry was convicted on August 1, 1988, but remained on bond pending sentencing because he was in a drug rehabilitation center. He was instructed to report for an interview with a probation officer on August 2, but failed to keep the appointment. An arrest warrant was issued the next day. Mr. Perry remained a fugitive until April 7, 1989, when he was arrested in Chicago.

The district court took Mr. Perry’s flight into account in calculating the guideline range for his sentence; the offense level was increased by two points under Guideline § 3C1.1 for impeding or obstructing the administration of justice. After rejecting- a suggestion that the offense level should be reduced under Guideline § 3B1.2 because Mr. Perry was only a “minor participant” in the drug conspiracy, the court sentenced him to imprisonment for 300 'months, with a three-year period of supervised release to follow that term. The sentence was within the guideline range as calculated by the court.

II

The commentary to § 3B1.2 indicates that the “minor participant” reduction is available only to a party who is “less culpable than most other participants” and “substantially less culpable than the average participant.” The culpability determination is “heavily dependent upon the facts,” id., and the defendant has the burden of proving mitigating factors by a preponderance of the evidence. United States v. Urrego-Linares, 879 F.2d 1234, 1238-39 (4th Cir.), cert. denied, — U.S.-, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989) (opinion by Judge Wilkins, chairman of the Sentencing Commission). A trial court’s decision on such issues may be set aside only if clearly erroneous. 18 U.S.C. § 3742(d); see also United States v. Williams, 894 F.2d 208, 213-14 (6th. Cir.1990). “To be clearly erroneous,” as the Court of Appeals for the Seventh Circuit has said in a different context, “a decision must strike us as more than just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir.1988), cert. denied, — U.S.-, 110 S.Ct. 141, 107 L.Ed.2d 100 (1989).

Mr. Perry relies primarily upon a letter from the Assistant United States Attorney ranking Mr. Perry and his six co-defendants according to culpability. The letter listed Johnny Henderson as the most culpable and Annette Gray as the least culpable. Mr. Perry was placed on the next-to-bottom rung of this ladder, immediately above Ms. Gray. The government maintains that the letter was not intended to suggest that Perry had played only a minor role in the conspiracy.

Although Mr. Perry may have been less culpable than most other participants, we cannot say that his part in the conspiracy made him “substantially less culpable than the average participant.” First, Mr. Perry was arrested in the company of major co-conspirators, including Johnny Henderson, at a house that could properly be found to have been Perry’s own residence. Second, Darrell Robertson, who regularly purchased cocaine from Johnny Henderson, testified that Mr. Perry helped him in weighing and packaging approximately half a kilogram of cocaine. Third, Robertson stated that Mr. Perry carried an automatic or semi-automatic weapon in a briefcase on at least one occasion. Although the Assistant United States Attorney erroneously told the trial court at sentencing that the testimony .indicated Perry was seen carrying a machine gun in a suitcase, defense counsel alerted the sentencing judge to this error. Fourth, Russell Brown testified that he saw Mr. Perry with cocaine at various drug houses and saw him drop off $15,000 in cash and several ounces of cocaine at one drug house. The district court’s conclusion that Mr. Perry was not substantially less culpable than the average member of the conspiracy is not clearly erroneous.

[59]*59III

Section 3C1.1 of the Sentencing Guidelines provides as follows:

“If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level by 2 levels.”

The trial court made a two-level increase under this section because Mr. Perry jumped bond before sentencing and was not apprehended until'the better part of a year had passed. Although no sentencing date had been set when Mr. Perry fled, he admits that he had been instructed to report to the probation officer and failed to do so. Mr. Perry offers no principled reason why his flight, which delayed his sentencing by some eight months, should not be considered to have “impeded” the administration of justice in the course of the prosecution. The conduct in question was certainly more serious, and had a greater impact on the proceedings, than giving a false name at the time of arrest — an action that has been held to justify an increase under this section. United States v. Brett, 872 F.2d 1365 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989).

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Cite This Page — Counsel Stack

Bluebook (online)
908 F.2d 56, 1990 U.S. App. LEXIS 11450, 1990 WL 93538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-charles-perry-ca6-1990.