United States v. Dustan Perry , 583 F. App'x 90 ( 2014 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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). Perry pled guilty without the benefit of a
written plea 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 support the harsher penalty prescribed by U.S.
Sentencing Guidelines Manual (“USSG”) § 2D1.11 (2012) as
compared to USSG § 2D1.1. 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 error that affects substantial rights may be
considered even though it was not brought to the court’s
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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; and (3) that the error affected his substantial
rights.” 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). If he makes this showing, the decision to
correct the 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.” Id.(internal quotation marks omitted). We conclude that Perry
fails to establish plain error. See United States v. Ellefson,
419 F.3d 859, 866 n.4 (8th 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. In reviewing a sentence, we must first ensure
that the 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. Gall v. United States, 552 U.S. 38, 51 (2007). The
district court is not required to “robotically tick through
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§ 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. United States v. Lynn, 592 F.3d 572, 576 (4th
Cir. 2010). 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). Only if we find the sentence procedurally
reasonable can 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, and therefore attributable, to him.
Under the Sentencing Guidelines, a defendant convicted of
conspiring to distribute controlled substances “is accountable
for all quantities of contraband with which he was directly
involved and . . . all reasonably foreseeable quantities of
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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. United States v. Carter, 300 F.3d 415, 425 (4th
Cir. 2002). The district court may rely on information in the
presentence report unless the defendant affirmatively shows that
the information is inaccurate or unreliable. Id. A district
court’s findings on drug quantity are generally factual in
nature, and therefore we review for clear error. Id. 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 in finding that the entire quantity of drugs
possessed and manufactured by the conspiracy was 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. This determination is a
factual finding reviewed for clear 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
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that involved five or more participants or was otherwise
extensive.” USSG § 3B1.1(a). Factors that distinguish an
organizational or leadership role from lesser roles include
exercising decision-making authority, the 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. USSG § 3B1.1 cmt.
n.4. The enhancement “is appropriate where the evidence
demonstrates that the defendant controlled the activities of
other participants or exercised management responsibility.” Id.
(internal quotation marks omitted). The facts establishing the
enhancement must be supported by a preponderance of the
evidence. 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 teaching other
coconspirators how to cook methamphetamine. 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. The Guidelines provide
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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, or release into the environment of a
hazardous or toxic substance.” USSG § 2D1.11(b)(3). Perry
argues that a risk of such discharge is inherent in every
methamphetamine manufacturing offense. However, the district
court applied the sentencing enhancement not 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. United States v. Susi, 674 F.3d 278,
289 (4th Cir. 2012). Such a presumption is rebutted only if the
defendant shows “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006). The district court
adequately considered Perry’s drug addiction, and nothing in the
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record rebuts the presumption that Perry’s sentence is
substantively reasonable.
Therefore, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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