United States v. Perry ( 2023 )

Case: 22-20508 Document: 00516809335 Page: 1 Date Filed: 07/05/2023
United States Court of Appeals
for the Fifth Circuit
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United States Court of Appeals
Fifth Circuit
No. 22-20508
Summary Calendar
FILED
July 5, 2023
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Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Herbert Perry, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CR-118-1
______________________________
Before Barksdale, Higginson, and Ho, Circuit Judges.
Per Curiam:*
Herbert Perry, Jr., pleaded guilty pursuant to a written plea agreement
to aiding and abetting the brandishing of a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. He was
sentenced to, inter alia, 132-months’ imprisonment and ordered, inter alia,
to pay a $3,000 fine. He contends his trial counsel was ineffective because
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20508 Document: 00516809335 Page: 2 Date Filed: 07/05/2023
No. 22-20508
he did not: timely file a notice of appeal (NOA); and object to the district
court’s imposition of the fine.
He contends he should be allowed an untimely appeal and concedes
our court generally does not consider ineffective assistance of counsel claims
on direct appeal, but he maintains we should consider his claim concerning
the fine because it is not cognizable under 28 U.S.C. § 2255.
Perry knowingly and voluntarily waived his right to appeal the
conviction and sentence, including the fine; thus, the appeal waiver is valid
and enforceable. See United States v. McKinney, 406 F.3d 744, 746 (5th Cir.
2005). The Government has invoked the waiver in this court. Therefore, to
the extent that Perry is challenging the fine directly, his claim is barred by the
appeal waiver. See id.In the appeal waiver, however, Perry reserved the right to claim
ineffective assistance of counsel. “Sixth Amendment claims of ineffective
assistance of counsel should not be litigated on direct appeal, unless they
were previously presented to the trial court.” United States v. Isgar, 739 F.3d
829, 841 (5th Cir. 2014) (citation omitted). This court will consider
ineffective assistance claims on direct appeal “only in rare cases in which the
record allows a reviewing court to fairly evaluate the merits of the claim”. Id.(citation omitted). We conclude the record is sufficiently developed for our
considering Perry’s two claims.
First, Perry’s NOA was required to be filed within 14 days from the
“entry” of judgment. Fed. R. App. P. 4(b)(1)(A)(i). For the purposes of
Rule 4(b), judgement is entered “when it is entered on the criminal docket”.
Fed. R. App. P. 4(b)(6). Although Perry’s judgment of conviction was
filed 12 September 2022, it was not entered on the docket until the following
day, 13 September. Therefore, his 27 September 2022 NOA was timely filed,
and he, therefore, fails to show counsel was ineffective on that basis.
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Case: 22-20508 Document: 00516809335 Page: 3 Date Filed: 07/05/2023
No. 22-20508
Next, assuming his trial counsel was ineffective in failing to object to
the fine, Perry has not shown the requisite prejudice. See Strickland v.
Washington, 466 U.S. 668, 694, 697 (1984) (providing defendant must show
reasonable probability outcome would be different absent counsel’s
ineffectiveness). The record reflects that the district court considered the
information in the presentence investigation report concerning Perry’s
ability to pay a fine and determined he had the ability to pay a reduced fine of
$3,000 in installments during his incarceration and after release. Perry has
not identified any additional evidence his trial counsel could have presented
to demonstrate that he was incapable of paying a fine. Therefore, he has not
shown there is a reasonable probability that, but for counsel’s failing to
object, the district court would not have imposed the fine. See Strickland, 466
U.S. at 694.
AFFIRMED.
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