US v. Dustan Perry, No. 13-4948 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4948 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DUSTAN PETE PERRY, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:11-cr-00073-RLV-DSC-6) Submitted: August 29, 2014 Decided: September 4, 2014 Before DUNCAN, AGEE, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Aaron Michel, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, William M. Miller, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.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). written plea Perry pled guilty without the benefit of a agreement and was sentenced 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 Sentencing support the Guidelines harsher Manual compared to USSG § 2D1.1. penalty ( USSG ) prescribed § 2D1.11 by (2012) U.S. as 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, 133 S. Ct. 1121, 1124 (2013) (citing United States v. Olano, 507 U.S. 725, 731 (1993)). Federal Rule of Criminal Procedure 52(b) provides that [a] plain considered error even that though affects it was 2 substantial not brought rights may to court s the be 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; rights. and (3) that the error affected his substantial 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). correct the If he makes this showing, the decision to 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. (internal quotation marks omitted). fails to establish plain error. 419 F.3d 859, 866 n.4 (8th We conclude that Id. Perry See United States v. Ellefson, 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. that the In reviewing a sentence, we must first ensure 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. district Gall v. United States, 552 U.S. 38, 51 (2007). court is not required 3 to robotically tick The 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. Cir. 2010). United States v. Lynn, 592 F.3d 572, 576 (4th 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). reasonable can Only if we find the sentence procedurally 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, Under Sentencing the and therefore Guidelines, a attributable, defendant to him. convicted of conspiring to distribute controlled substances is accountable for all involved quantities and . . of . contraband all with reasonably 4 which he foreseeable was directly quantities of contraband that were within the scope of the criminal activity that he jointly undertook. USSG § 1B1.3 cmt. n.2. The government must prove this drug quantity by a preponderance of the evidence. Cir. 2002). United States v. Carter, 300 F.3d 415, 425 (4th The district court may rely on information in the presentence report unless the defendant affirmatively shows that the information is inaccurate or unreliable. court s findings on drug quantity are Id. generally nature, and therefore we review for clear error. A district factual Id. in 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 possessed in and finding that manufactured the entire the conspiracy by quantity was of drugs reasonably foreseeable to Perry. Perry next challenges the four-level enhancement the district court imposed under USSG § 3B1.1(a) for his role as an organizer or leader of the conspiracy. factual finding reviewed for clear This determination is a 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 5 that involved extensive. five USSG organizational exercising or § or more participants 3B1.1(a). leadership decision-making or Factors that from lesser role authority, the was otherwise distinguish roles an include nature of participation in the offense, recruiting accomplices, claiming a larger share of the criminal proceeds, planning or organizing the offense, the nature and scope of illegal activity, and the degree of control and authority over others. n.4. The enhancement demonstrates that the is appropriate defendant USSG § 3B1.1 cmt. where controlled the the evidence activities other participants or exercised management responsibility. (internal quotation marks omitted). enhancement evidence. must be supported of Id. The facts establishing the by a preponderance of the See United States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008). Here, Perry conspired with many coconspirators and filled a central role in the conspiracy by providing the recipe for manufacturing methamphetamine and coconspirators how to cook methamphetamine. teaching other Accordingly, based on the nature of Perry s participation and the scope of his illegal activities, we find that the district court did not clearly err in applying the four-level leadership enhancement. Perry contests the two-level enhancement based on the creation of an environmental hazard. 6 The Guidelines provide that, in calculating the offense level for unlawful possession of pseudoephedrine or other listed chemicals, a two-level increase is applicable when the offense involved an unlawful discharge, emission, hazardous argues or that toxic a methamphetamine court applied risk or release substance. of such manufacturing the into USSG the § environment 2D1.11(b)(3). discharge is offense. However, sentencing enhancement inherent not a Perry in the of every district because Perry created a risk of discharge, but because Perry created an actual discharge when he was involved in a methamphetamine cook that blew up. (J.A. 366). Accordingly, we find no error in the application of the two-level enhancement. Perry also challenges the substantive reasonableness of his sentence, which we review by tak[ing] into account the totality of the circumstances. Gall, 552 U.S. at 51. If the sentence is within or below the properly calculated Guidelines range, we apply a presumption on appeal that the sentence is substantively reasonable. 289 (4th Cir. 2012). United States v. Susi, 674 F.3d 278, Such a presumption is rebutted only if the defendant shows that the sentence is unreasonable when measured against the § 3553(a) factors. 445 F.3d 375, 379 (4th United States v. Montes-Pineda, Cir. 2006). The district court adequately considered Perry s drug addiction, and nothing in the 7 record rebuts the presumption that Perry s sentence is substantively reasonable. Therefore, court. legal before we affirm the judgment of the district We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 8

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