United States v. Raymond Perry , 477 F. App'x 961 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4987
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAYMOND LEWIS PERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:11-cr-00042-RGD-FBS-1)
Submitted: April 20, 2012 Decided: April 25, 2012
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Shannon L. Hadeed, STALLINGS & BISCHOFF, P.C., Virginia Beach,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Benjamin L. Hatch, Assistant United States Attorney,
Cameron M. Rountree, Special Assistant United States Attorney,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Raymond Lewis Perry was
convicted of conspiracy to commit robbery and three counts of
robbery, in violation of 18 U.S.C. § 1951(a) (2006), and four
counts of using a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A) (2006). The district
court sentenced him to a total term of imprisonment of 1160
months. In this appeal, Perry argues that the district court
abused its discretion in admitting into evidence a statement he
made upon arrest and in rejecting his guilty plea. We affirm.
We review a district court’s evidentiary rulings for
an abuse of discretion. United States v. Blake, 571 F.3d 331,
350 (4th Cir. 2009). The Federal Rules of Evidence prohibit the
admission of “[e]vidence of a crime, wrong, or other act . . .
to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). * However, Rule 404(b) does
not apply to evidence of acts intrinsic to the crime charged.
United States v. Lighty, 616 F.3d 321, 352 (4th Cir. 2010).
We conclude that Perry’s statement was admissible
“whether one conceives of it as outside the scope of Rule 404(b)
*
Rule 404(b) was amended effective December 1, 2011, after
Perry’s trial, but the changes were stylistic only.
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because of the evidence’s ‘intrinsic’ value deriving from its
specific relationship to the facts of the offense or as
countenanced by Rule 404(b) because of its relevance in proving
a non-character-related consequential fact—consciousness of
guilt.” United States v. Acevedo, 28 F.3d 686, 688 (7th Cir.
1994). We are not persuaded by Perry’s contention that unfair
prejudice militates against admission of the statement. Unfair
prejudice is “prejudice that damages an opponent for reasons
other than its probative value, for instance, an appeal to
emotion, and only when that unfair prejudice substantially
outweigh[s] the probative value of the evidence.” United
States v. Mohr, 318 F.3d 613, 620 (4th Cir. 2003) (internal
quotation marks omitted). Perry’s statement was most damaging
because it demonstrated a consciousness of guilt that linked him
to a gas station robbery and shooting in Virginia Beach.
Accordingly, the district court did not abuse its discretion in
admitting the statement.
Perry also contends that the district court used the
Fed. R. Crim. P. 11 colloquy to coerce him into pleading not-
guilty in two ways. First, he argues that the district court’s
mischaracterization of the plea agreement induced him to plead
guilty. We conclude that Perry cannot demonstrate plain error.
The district court overlooked a provision of the plea agreement
when it advised Perry that “if you change your mind that plea
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agreement and these proceedings can’t be[] used against you. It
would be as if it never happened.” However, the error did not
affect Perry’s substantial rights because the district court
barred the Government from using any statements gained in the
course of plea negotiations. See United States v. Vonn, 535
U.S. 55, 58 (2002) (providing standard of review); United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009)
(requiring, inter alia, a showing that error affects substantial
rights in order to demonstrate plain error).
Second, Perry asserts that the district court coerced
him into pleading guilty by improperly acting as defense counsel
through “a lengthy oration with multiple questions the court
felt Mr. Perry should consider, questions that had in fact
already been asked and answered.” (Appellant’s Br. at 22). We
disagree. “There is . . . no absolute right to have a guilty
plea accepted. A court may reject a plea in exercise of sound
judicial discretion.” Santobello v. New York, 404 U.S. 257, 262
(1971).
Here, after Perry suggested he was pleading guilty, in
part, because he did not believe he would receive a fair trial,
the district court took considerable care to assure Perry that
he would have a fair trial. The court also explained the
considerations a defendant should weigh in pleading guilty. The
court concluded its remarks by asking Perry whether the
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Government’s summary of the facts was accurate. Because Perry
asserted the summary was false, the court was constrained to
reject Perry’s guilty plea. Under these circumstances, the
district court can hardly be criticized for fulfilling its
obligation to ensure that, “[b]efore entering judgment on a
guilty plea, the court must determine that there is a factual
basis for the plea.” Fed. R. Crim. P. 11(b)(3).
Based on the foregoing, we affirm the judgment of the
district court. We deny Perry’s motion to withdraw counsel and
to hold his appeal in abeyance pending the appointment of new
counsel. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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