United States v. Dustan Perry

583 F. App'x 90
CourtCourt of Appeals for the Fourth Circuit
DecidedSeptember 4, 2014
Docket13-4948
StatusUnpublished

This text of 583 F. App'x 90 (United States v. Dustan Perry) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Dustan Perry, 583 F. App'x 90 (4th Cir. 2014).

Opinion

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Dustan Pete Perry appeals his sentence for conspiracy to distribute and to possess with intent to distribute and manufacture at least 500 grams of methamphetamine, in violation of 21 U.S.C. § 846 (2012), and possession of pseudoephedrine for the manufacture of methamphetamine, in violation of 21 U.S.C. § 841(c)(2) (2012). Perry pled guilty without the benefit of a written plea agreement and was sentenced *92 to a total of 262 months’ imprisonment and five years of supervised release. On appeal, Perry asserts that the relevant Sentencing Guidelines are unconstitutional and that his sentence was procedurally and substantively unreasonable. Finding no reversible error, we affirm Perry’s sentence.

On appeal, Perry first asserts that no rational basis exists to support the harsher penalty prescribed by U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.11 (2012) as compared to U.S.S.G. § 2D1.1. Because he did not challenge the Guidelines’ constitutionality in'the district court, we review Perry’s claim for plain error. See Henderson v. United States, — U.S. —, 133 S.Ct. 1121, 1124, 185 L.Ed.2d 85 (2013) (citing United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

Federal Rule of Criminal Procedure 52(b) provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Fed.R.Crim.P. 52(b). To establish plain error, Perry must show: “(1) that an error was made; (2) that the error was plain; and (3) that the error affected his substantial rights.” United States v. Carthorne, 726 F.3d 503, 510 (4th Cir.2013) (citing Henderson, 133 S.Ct. at 1126; Olano, 507 U.S. at 732-35, 113 S.Ct. 1770). If he makes this showing, the decision to correct the error remains within our discretion, which we exercise “only if the error would result in a miscarriage of justice or would otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). We conclude that Perry fails to establish plain error. See United States v. Ellefson, 419 F.3d 859, 866 n. 4 (8th Cir.2005) (differences between Guidelines had rational justification based on recognition “that the manufacture of methamphetamine is an inherently dangerous activity that creates substantial risks to public health and safety”).

Next, Perry challenges the procedural reasonableness of his sentence. In reviewing a sentence, we must first ensure that the district court did not commit any “significant procedural error,” such as failing to properly calculate the applicable Guidelines range or failing to consider the § 3553(a) factors. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The district court is not required to “robotically tick through § 3553(a)’s every subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th Cir.2006). However, the district court “must place on the record an individualized assessment based on the particular facts of the case before it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.2009) (internal quotation marks omitted).

Because Perry argued for a sentence different than the one imposed, we review his remaining claims for abuse of discretion and will reverse unless we conclude that any error was harmless. United States v. Lynn, 592 F.3d 572, 576 (4th Cir.2010). In assessing a challenge to the district court’s application of the Guidelines, we review the district court’s factual findings for clear error and its legal conclusions de novo. See United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir.2010). Only if we find the sentence procedurally reasonable can we consider its substantive reasonableness. Carter, 564 F.3d at 328.

Perry challenges the district court's determination that the total amount of drugs involved in the conspiracy was reasonably foreseeable, and therefore attributable, to him. Under the Sentencing Guidelines, a defendant convicted of conspiring to distribute controlled substances “is accountable for all quantities of contra *93 band with which he was directly involved and ... all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook.” U.S.S.G. § 1B1.3 cmt. n. 2. The government must prove this drug quantity by a preponderance of the evidence. United States v. Carter, 300 F.3d 415, 425 (4th Cir.2002). The district court may rely on information in the presentence report unless the defendant affirmatively shows that the information is inaccurate or unreliable. Id. A district court’s findings on drug quantity are generally factual in nature, and therefore we review for clear error. Id. In light of the evidence contained in the presentence report indicating that Perry taught his coconspirators how to cook methamphetamine, was present during multiple cooking sessions at multiple locations, and cooked methamphetamine himself in the presence of others, we find that the district court did not clearly err in finding that the entire quantity of drugs possessed and manufactured by the conspiracy was reasonably foreseeable to Perry.

Perry next challenges the four-level enhancement the district court imposed under U.S.S.G. § 3Bl.l(a) for his role as an organizer or leader of the conspiracy. This determination is a factual finding reviewed for clear error. United States v. Cameron, 573 F.3d 179, 184, 186 (4th Cir.2009).

To' qualify for the four-level enhancement, a defendant must have been “an organizer or leader of a criminal activity that involved five or more participants or was • otherwise extensive.” U.S.S.G. § 3Bl.l(a).

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Related

United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Alvarado Perez
609 F.3d 609 (Fourth Circuit, 2010)
United States v. Susi
674 F.3d 278 (Fourth Circuit, 2012)
United States v. Ann Victoria Ellefson
419 F.3d 859 (Eighth Circuit, 2005)
United States v. Artez Lamont Johnson
445 F.3d 339 (Fourth Circuit, 2006)
Henderson v. United States
133 S. Ct. 1121 (Supreme Court, 2013)
United States v. Harvey
532 F.3d 326 (Fourth Circuit, 2008)
United States v. Carter
564 F.3d 325 (Fourth Circuit, 2009)
United States v. Cameron
573 F.3d 179 (Fourth Circuit, 2009)
United States v. Lynn
592 F.3d 572 (Fourth Circuit, 2010)
United States v. Jolon Carthorne, Sr.
726 F.3d 503 (Fourth Circuit, 2013)
United States v. Carter
300 F.3d 415 (Fourth Circuit, 2002)

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Bluebook (online)
583 F. App'x 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dustan-perry-ca4-2014.