US v. Richard Perry, No. 14-4097 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4097 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RICHARD JAMAR PERRY, a/k/a Big Mac, a/k/a Mac, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (7:11-cr-00076-SGW-RSB-1) Submitted: September 23, 2014 Before NIEMEYER and Senior Circuit Judge. GREGORY, Decided: Circuit September 25, 2014 Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. Dennis E. Jones, DENNIS E. JONES & ASSOCIATES, P.C., Abingdon, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Jean B. Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Richard Jamar Perry pled guilty pursuant to a plea agreement to conspiracy to make, utter, and possess counterfeit securities. appeal, He was sentenced to forty-one months in prison. Perry claims that the Government breached his On plea agreement by not recommending an acceptance of responsibility adjustment (2011). under U.S. Sentencing Guidelines Manual § 3E1.1 Because we conclude that the Government did not breach the plea agreement, we affirm. The plea agreement provided that, if Perry accepted responsibility for his conduct and complied with the provisions of the agreement, the Government would recommend a two-level reduction under additional USSG one-level § 3E1.1(a), reduction and, under if USSG applicable, § 3E1.1(b). an The presentence report ( PSR ) did not recommend an acceptance of responsibility adjustment, and the Government did not move for one at sentencing. Because Perry did not object. Perry did not object to the Government s failure to make the disputed recommendation, this court s review is for plain error. 133-34 (2009). Government s Puckett v. United States, 556 U.S. 129, It is settled that a defendant alleging the breach of a plea agreement bears the burden of establishing that breach by a preponderance of the evidence. United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000). 2 Under plain error agreement review, was Perry breached, must but show also not that only that the the breach plea was so obvious and substantial that failure to notice and correct it affect[ed] the fairness, integrity or public reputation of the judicial proceedings. United States v. McQueen, 108 F.3d 64, 66 & n.4 (4th Cir. 1997) (citing United States v. Fant, 974 F.2d 559, 565 (4th Cir. 1992)). We conclude that there was no error, much less plain error. The district court ruled that Perry minimized misstated his involvement in the crime of conviction. and While Perry asserts that language in the plea agreement permitting him to argue whether Guidelines sections should or should not apply prohibited the Government responsibility from recommendation withholding based upon an acceptance his of sentencing testimony and objections, Perry s argument finds no support in the record. regarding contrary The district court ruled that Perry s testimony his to his intimately Thus, adjustment, his did not activity testimony involved Perry because criminal not in at the receive because testimony he the was not sentencing conspiracy an from acceptance objected regarding credible to his the and hearing, start of to that, he was finish. responsibility PSR, but participation rather in the conspiracy was not credible and improperly sought to minimize his participation while maximizing the participation of others. 3 Because Perry did not accept responsibility for his conduct as required by the plea agreement, the Government was not obligated adjustment. to recommend an acceptance of responsibility Accordingly, there was no breach by the Government, and we, therefore, affirm the district court s judgment. 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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