United States v. Tony Perry , 631 F. App'x 245 ( 2016 )


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  •      Case: 14-11264      Document: 00513355446         Page: 1    Date Filed: 01/25/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 14-11264                                  FILED
    Summary Calendar                         January 25, 2016
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    TONY LEE PERRY,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:14-CR-78-19
    Before DAVIS, JONES, and GRAVES, Circuit Judges.
    PER CURIAM: *
    Tony Lee Perry pleaded guilty, without the benefit of a plea agreement,
    to one count of conspiring to possess intending to distribute a controlled
    substance. In the presentence report (PSR), the probation officer determined
    that Perry possessed 26 ounces, or 737.1 grams, of methamphetamine, and
    calculated his advisory guidelines sentencing range based on this drug
    quantity. Perry objected to the drug quantity finding and put on testimony at
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 14-11264     Document: 00513355446     Page: 2   Date Filed: 01/25/2016
    No. 14-11264
    his sentencing hearing in an attempt to rebut it. The district court overruled
    his objection and imposed a 150-month prison term, at the high end of the
    guidelines range. Perry appeals.
    The district court’s drug quantity calculation is a factual determination
    entitled to “considerable deference,” United States v. Betancourt, 
    422 F.3d 240
    ,
    246 (5th Cir. 2005), and we will reverse the finding only if it is clearly
    erroneous, that is, if it is implausible in light of the record as a whole, see
    United States v. Simpson, 
    741 F.3d 539
    , 556-57 (5th Cir.), cert. denied,
    
    134 S. Ct. 2318
    (2014).
    Perry first argues that the PSR’s finding that Brittany Barron, a
    coconspirator, provided him with 18 ounces of drugs was not sufficiently
    corroborated and that, because the probation officer did not append to the PSR
    the documents she relied on, there is no way to know whether her findings bear
    a sufficient indicia of reliability to support the finding. The district court may
    rely on the information contained in the PSR if it has “an adequate evidentiary
    basis with sufficient indicia of reliability.” United States v. Fuentes, 
    775 F.3d 213
    , 220 (5th Cir. 2014). The probation officer based her findings on the
    indictment, superseding indictment, factual resumes, investigative material
    provided by federal agents, and offense reports prepared by police officers, and
    she corroborated the information during an interview with a Drug
    Enforcement Administration agent.       Moreover, a review of the sentencing
    transcript reveals that Barron provided a statement to the Government that
    was memorialized in writing and that corroborated the PSR’s findings.
    Accordingly, absent any evidence to rebut it, the information in the PSR
    contained an adequate evidentiary basis and was sufficiently reliable to
    support the drug quantity determination. Cf. 
    id. (explaining that
    findings in
    a PSR based on the results of a police investigation are sufficiently reliable to
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    No. 14-11264
    be relied on where the defendant offers no evidence to rebut the PSR’s
    findings).
    Relying on testimony he put forward at sentencing, Perry challenges as
    untrue, inaccurate, or unreliable the PSR’s finding that Barron delivered to
    him an ounce of methamphetamine per week for 14 weeks and later delivered
    to him a four-ounce quantity. Though Barron testified that she did not deliver
    methamphetamine to Perry—except for a small amount on one occasion—and
    that she has never reported otherwise, the district court found the testimony
    incredible and the findings in the PSR reliable. We defer to the credibility
    findings that the district court makes at sentencing.          United States v.
    Goncalves, 
    613 F.3d 601
    , 609 (5th Cir. 2010).         Especially in light of its
    determination that Barron’s testimony was not credible, the district court did
    not clearly err in concluding that Perry failed to demonstrate that the PSR’s
    finding that Barron provided him with 18 ounces of methamphetamine was
    “inaccurate or materially untrue.” 
    Simpson, 741 F.3d at 556-57
    .
    Perry also disputes the PSR’s finding that he twice gave four ounces of
    methamphetamine to another coconspirator, arguing that he was not involved
    in those transactions and was merely a bystander. An officer involved in the
    investigation testified at sentencing that, based on his knowledge of the drug
    world in general and of this conspiracy in particular, Perry played an active
    role in the transactions, which supports the PSR’s finding. In any event, the
    drugs that Perry gave to this coconspirator were not included in 737.1 grams
    of methamphetamine that Perry was held responsible for, so he cannot
    demonstrate that the PSR findings were materially untrue. See 
    id. at 557.
    Accordingly, the district court did not clearly err. See 
    id. at 556-57.
          Finally, as the Government contends, any error would be harmless. The
    district court explicitly stated that even if it misapprehended the drug quantity
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    No. 14-11264
    attributable to Perry, it nonetheless would have imposed the same 150-month
    prison term.    It explained that in choosing this particular sentence, it
    considered mitigating factors regarding Perry’s history and characteristics,
    including his medical history and history of abuse, but determined that these
    factors were outweighed by the seriousness of the offense, the extent and
    seriousness of Perry’s criminal history, and the need to protect the public from
    Perry’s criminal activities. Thus, the Government has met the “high hurdle”
    to show that the district court would have imposed the same sentence for the
    same reasons regardless of any error in the drug quantity determination and
    resulting guidelines calculation. United States v. Ibarra-Luna, 
    628 F.3d 712
    ,
    713-14 (5th Cir. 2010).
    AFFIRMED.
    4
    

Document Info

Docket Number: 14-11264

Citation Numbers: 631 F. App'x 245

Filed Date: 1/25/2016

Precedential Status: Non-Precedential

Modified Date: 1/13/2023