US v. Sean Perry, No. 11-4603 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4603 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SEAN PERRY, a/k/a Sean Austin Perry, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:10-cr-00139-1) Submitted: November 23, 2011 Before WILKINSON and Senior Circuit Judge. GREGORY, Decided: Circuit December 1, 2011 Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Lex A. Coleman, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Monica L. Dillon, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sean Austin Perry appeals his conviction and fiftyseven month sentence imposed after he pled guilty without a plea agreement to one count of distribution of oxycodone, in violation of 21 U.S.C. § 841(a)(1) (2006); and one count of aiding and abetting the possession with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 2, 841(a)(1) (2006). Perry s sole argument on appeal is that his sentence should be vacated because it is allegedly greater than necessary to comply with the purposes of 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2011) since: (1) the Guidelines allegedly punish crimes involving oxycodone more harshly than other narcotics offenses; and (2) in imposing the fifty-seven month sentence, the district court allegedly focused solely on deterrence under § 3553(a), rather Perry s than considering history and other compelling characteristics. factors, We such reject as Perry s arguments and affirm the district court s judgment. This court reviews a sentence for reasonableness under See Gall v. United States, 552 an abuse of discretion standard. U.S. 38, 51 (2007). the Id. procedural and This review requires consideration of both substantive reasonableness of a sentence. This court must first assess whether the district court properly calculated the advisory Guidelines range, considered the § 3553(a) factors, analyzed any arguments presented by the 2 parties, and sufficiently explained the selected sentence. Id. at 49-50. If substantive there is no procedural reasonableness of the error, we sentence, review tak[ing] the into account the totality of the circumstances, including the extent of any variance from the Guidelines range. United States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal quotation marks and citation omitted), cert. denied, 131 S. Ct. 307 (2010). However, this court presumes that a sentence within a properly calculated Guidelines range is reasonable. States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). not allege that the district court United Perry does procedurally erred in imposing his sentence and, thus, his within-Guidelines sentence is entitled to a presumption of reasonableness. We conclude that Perry presumption of reasonableness. has Id. failed to rebut the First, we discern no error in the district court s rejection of Perry s argument that he was entitled to a variant sentence because the Guidelines allegedly punish oxycodone offenses. Guidelines offenses Admittedly, ranges based more harshly district solely than courts on policy including disagreements with the Guidelines. other may narcotics vary from considerations, United States v. Engle, 592 F.3d 495, 502 (4th Cir.), cert. denied, 131 S. Ct. 165 (2010) (quoting Kimbrough v. United States, 552 U.S. 85, 101 3 (2007)). Although a district court is at liberty to vary from a particular Guideline, it is equally clear that [n]o judge is required . . . to do so. 411, 416 (7th Cir. United States v. Corner, 598 F.3d 2010). The record establishes that the district court was well aware of its authority to reject the manner in which the Guidelines treat oxycodone-related offenses, but simply chose not to do so. We also conclude that the district court did not abuse its discretion in placing emphasis on its perceived need to deter others from similar crimes in imposing Perry s sentence. Specifically, the district authority vary from to court, Perry s while recognizing Guidelines range, its clearly explained its rationale for declining to do so, including the fact that: become a (1) oxycodone serious law and other enforcement opiate-based issue in its drugs have district; (2) Perry was not from West Virginia; and (3) his drugs were from Detroit, Michigan, which has produced extensive criminal activity. Perry s assertions to the contrary, the district court also explicitly considered Perry s history and characteristics; namely, his upbringing, lack his of countable education, and productive member of society. district court s comments criminal his history, potential to his decent become a Because it is apparent from the at sentencing 4 that it carefully considered the Guidelines and the § 3553(a) factors in fashioning an appropriate sentence for Perry, and because the district court sentenced Perry within in fact, at the bottom of Perry s Guidelines range, we conclude that Perry s fiftyseven month sentence is reasonable. Based on the foregoing, we affirm the district court s judgment. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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