US v. Sy Perri, No. 12-4160 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4160 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SY ARTHUR PERRI, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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). challenges the district Guidelines range. * This substantive standard. court s calculation of advisory We affirm. court reviews reasonableness a sentence using the for procedural and abuse-of-discretion Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). procedural whether his Perri the reasonableness, district Guidelines range. court this court correctly must first calculated Lynn, 592 F.3d at 575. In analyzing the determine advisory 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. 2 F.3d 177, 182 (4th Cir. 2012); United States v. Harvey, 532 F.3d 326, 328 (4th Cir. 2008) (defining clear error). Perri reference first § 2K2.1(c)(1)(A) the U.S. in challenges Sentencing Guidelines Manual § 2X1.1(a), which, (2011), to USSG application of a cross- ( USSG ) 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 application fact of and the that the cross-reference factual findings support 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). forcibly accompanied another room. We conclude enhancement. a The district victim from court one found room in that a Perri house to See USSG § 1B1.1 cmt. n.1(A) (defining abducted). that these facts warrant application of the 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. 3 We 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 substantive reasonable. reasonableness of Perri his does not contest within-Guidelines the sentence. Accordingly, we affirm the judgment of the district court. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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