Filed: May 13, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4467 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DERRICK JOMELL PERRY, a/k/a Mel, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:06-cr-00082-FL-1) Submitted: April 28, 2011 Decided: May 13, 2011 Before WILKINSON, AGEE, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Rudolp
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4467 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DERRICK JOMELL PERRY, a/k/a Mel, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:06-cr-00082-FL-1) Submitted: April 28, 2011 Decided: May 13, 2011 Before WILKINSON, AGEE, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Rudolph..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4467
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK JOMELL PERRY, a/k/a Mel,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:06-cr-00082-FL-1)
Submitted: April 28, 2011 Decided: May 13, 2011
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New
Bern, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Jennifer P. May-Parker, Brian S. Meyers,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Derrick Jomell Perry of distribution
of more than five grams of crack cocaine, 21 U.S.C. § 841(a)(1)
(2006) (count two), possession with intent to distribute
marijuana, 21 U.S.C. § 841(a)(1) (count five), and possession
of a firearm in furtherance of a drug trafficking crime, 18
U.S.C. § 924(c)(1)(A)(i) (2006) (count six). Perry received a
170-month sentence on count two, a concurrent sixty-month
sentence on count five, and a consecutive sixty-month sentence
on the firearms conviction, for a total of 230 months’
imprisonment. By published opinion, this court affirmed Perry’s
convictions but vacated Perry’s sentence in light of Kimbrough
v. United States, 552 U.S. 85, 101-07 (2007), in which the
Supreme Court held that the 100:1 crack-to-powder cocaine ratio
could be a basis for variance. United States v. Perry,
560 F.3d
246 (4th Cir. 2009). This court added, “[a]s a result, it is
premature for us to consider Perry’s remaining challenge to the
district court’s denial of his additional requests for a
variance below the suggested guideline range.”
Id. at 259.
Perry now appeals the 170-month sentence he received at
resentencing. 1
1
Prior to resentencing, the district court granted Perry’s
18 U.S.C. § 3582(c)(2) (2006) motion for a reduction of sentence
(Continued)
2
On appeal, Perry argues the district court: (1) failed
to exercise its discretion under Kimbrough and reduce his
sentence based on the 100:1 crack-to-powder ratio; (2) erred in
not granting a downward variance based on the use of acquitted
conduct at sentencing to increase his sentence and the various
arguments he proffered in consideration of the 18 U.S.C.
§ 3553(a) (2006) factors; (3) erred in not recalculating a lower
criminal history category based on Amendment 709 of the U.S.
Sentencing Guidelines (U.S.S.G.), which became effective after
his original sentence; and (4) erred in imposing a consecutive
five-year sentence despite the “exception clause” of 18 U.S.C.
§ 924(c)(1)(a). The Government responds that the district court
did not abuse its discretion in denying Perry’s motion for a
downward variance and in sentencing him within the Sentencing
Guidelines range. It further contends that Perry’s arguments
with respect to the consecutive § 924(c) sentence and Amendment
709 were barred from consideration under the mandate rule.
This court reviews Perry’s sentence under a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). “The first step in this review
requires us to ensure that the district court committed no
based on the amendment to the Guidelines for crack cocaine
offenses and sentenced him to 197 months’ imprisonment.
3
significant procedural error, such as improperly calculating the
Guidelines range.” United States v. Osborne, 514 F.3d 377, 387
(4th Cir. 2008) (internal quotation marks, citations and
alterations omitted). We then consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.”
Gall, 552 U.S. at 51. If the
sentence is within the Guidelines range, this court presumes on
appeal that the sentence is reasonable. United States v. Go,
517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United States,
551 U.S. 338, 346-56 (2007) (permitting presumption of
reasonableness for within-Guidelines sentence).
Perry first maintains that his sentence is
substantively unreasonable because the district court refused to
grant a variance on the basis of the 100:1 crack-to-powder
ratio. In Kimbrough, the Supreme Court held that a district
court was entitled to disagree with and to decline to follow the
crack-to-powder ratio expressed in the Guidelines. The Court
has since reinforced the point that “district courts are
entitled to reject and vary categorically from the crack-cocaine
Guidelines based on a policy disagreement with those
Guidelines.” Spears v. United States, 129 S. Ct. 840, 843-44
(2009). Perry received the benefit of the 2007 amendments to
the Sentencing Guidelines designed to address the crack-to-
powder cocaine disparity. The record further reflects the
4
district court amply understood its discretion in this case,
stating that it recognized its discretion “to vary further to
consider the defendant’s motion for a downward departure.”
Ultimately, the district court determined there was no
appropriate basis to further amend the judgment to reflect the
disparity. See United States v. Caldwell, 585 F.3d 1347, 1355
(10th Cir. 2009) (upholding district court’s decision not to
vary from crack-to-powder ratio because “[n]othing in Kimbrough
mandates that a district court reduce a defendant’s sentence in
order to eliminate the crack/powder sentencing disparities”),
cert. denied,
131 S. Ct. 209 (2010). Because the district court
was not obligated to vary from the Guidelines range under these
circumstances, we conclude that the district court’s decision
not to grant a downward variance did not render Perry’s sentence
substantively unreasonable.
Perry also contends the district court should have
granted a downward variance based on his argument regarding the
role acquitted conduct played in determining the drug quantity
for which he was held responsible. To the extent Perry argues
the impropriety of attributing acquitted conduct to him, his
claim was expressly rejected by this court in his first appeal.
See United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)
(explaining mandate rule forecloses relitigation of issues
expressly or impliedly decided by the appellate court). To the
5
extent Perry requested that the district court consider as a
mitigating factor that ninety-three percent of the crack cocaine
attributed to him was based on acquitted conduct, the court
specifically heard argument from both parties and determined a
variance on that basis was not appropriate. We conclude the
district court did not abuse its discretion in this regard.
Next, Perry argues the district court abused its
discretion in denying his motion for a downward variance based
on its arguments concerning the § 3553(a) factors; namely, his
rehabilitation in prison, his efforts to be a good father, and
his medical problems. In his allocution, Perry informed the
court of the classes he had taken in prison, his clean prison
record, and his acceptance of responsibility. Importantly,
Perry did not argue in his opening brief that the district court
failed to consider his arguments or failed to give an adequate
explanation of its sentence. 2 Rather, he simply asserts that a
downward variance was well supported.
The record reflects the district court heard the
parties’ arguments regarding all of the factors Perry contended
2
Perry argues in his reply brief that the district court
did not adequately articulate its reasons for denying his
variance motion, in violation of United States v. Carter, 564
F.3d 325 (4th Cir. 2009). However, this court will not consider
issues raised for the first time in a reply brief. United
States v. Brooks,
524 F.3d 549, 556 n.11 (4th Cir. 2008).
6
supported a downward variance. In fact, the district court, in
fashioning Perry’s sentence, emphasized the nature of the
offense, noted Perry’s four-year track record, and ordered that
the judgment direct a medical assessment in light of Perry’s
medical problems. However, the district court clearly found a
sentence within the Guidelines range was appropriate. We
conclude the district court did not abuse its discretion in
denying the variance on this basis.
Perry also argues that the district court erred in
denying his objection to the consecutive sentence under § 924(c)
and to the recalculation of his criminal history under Amendment
709. Perry did not raise either of these arguments at his first
sentencing or in his first direct appeal. The Government
therefore argues that consideration of these arguments was
precluded by the mandate rule, which “forecloses relitigation of
issues expressly or impliedly decided by the appellate court,”
and “litigation of issues decided by the district court but
foregone on appeal.” Bell, 5 F.3d at 66.
We review de novo whether a post-mandate judgment of
the district court “contravenes the mandate rule, or whether the
mandate rule has been scrupulously and fully carried out.” Doe
v. Chao, 511 F.3d 461, 464 (2007) (internal quotation marks and
citation omitted). The mandate rule prohibits lower courts with
limited exceptions from considering questions that the mandate
7
of a higher court has laid to rest. Id. at 465. The rule
likewise restricts the district court’s authority on remand from
the court of appeals. “[A]ny issue conclusively decided by this
[C]ourt on the first appeal is not remanded, and second, any
issue that could have been but was not raised on appeal is
waived and thus not remanded.”
Id. (citation omitted).
At resentencing, Perry argued that the district court
should not impose a consecutive, statutorily-mandated sixty-
month prison term on count six, relying on the interpretation of
the “except clause” given in United States v. Whitley, 529 F.3d
150 (2d Cir. 2008), and United States v. Williams,
558 F.3d 166
(2d Cir. 2009), abrogated by Abbott v. United States,
131 S. Ct.
18 (2010). 3 Perry argued that he was already subject to a ten-
year mandatory minimum sentence due to his drug conviction.
Perry conceded below, however, that this claim was foreclosed by
United States v. Studifin,
240 F.3d 415 (4th Cir. 2001), in
which this court determined that the “except to the extent”
language in § 924(c)(1) merely serves to connect the prefatory
3
Section 924(c)(1)(A) of Title 18 begins by stating
“[e]xcept to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other provision
of law,” and then provides a mandatory minimum sentencing
schedule depending upon certain conditions precedent. 18 U.S.C.
§ 924(c)(1)(A).
8
language of the subsection with other subdivisions of the
chapter. Id. at 423. Perry nonetheless sought to preserve the
issue given the Circuit split at the time. The district court
denied the motion.
We conclude this argument was foreclosed by the
mandate rule as Perry could have, but did not, raise it in his
first appeal. This argument was plainly available to Perry at
that time, and he did not at resentencing rely on a change in
the law or newly discovered evidence, or purport to correct a
blatant error to prevent a serious injustice. See Doe, 511 F.3d
at 467. Because Perry could have raised this issue in his first
appeal but did not, the district court did not have authority to
consider this argument. Even if the court could have considered
this argument, it is foreclosed by the Supreme Court’s decision
in Abbott, 131 S. Ct. at 23 (holding “that a defendant is
subject to a mandatory, consecutive sentence for a § 924(c)
conviction, and is not spared from that sentence by virtue of
receiving a higher mandatory minimum on a different count of
conviction.”).
We also conclude that the district court was precluded
from considering Amendment 709 to the U.S.S.G., which altered
how the probation officer counts misdemeanor and petty offenses
in determining the criminal history category. Although the
district court heard Perry’s arguments as to the Amendment and
9
its applicability, and ultimately denied the motion, the
calculation of Perry’s criminal history category was implicitly
foreclosed by this court’s mandate. Furthermore, the district
court was required to apply the Guidelines “that were in effect
on the date of the previous sentencing of the defendant prior to
the appeal,” which did not include Amendment 709. 18 U.S.C.
§ 3742(g)(1) (2006).
With respect to the establishment of the Guidelines
range, we note that on remand the district removed the two-level
enhancement for reckless endangerment initially applied to
Perry’s sentence. Perry did not challenge the enhancement in
his first appeal. Although the district court exceeded the
scope of the mandate in removing the two-point enhancement, the
error inures to Perry’s benefit. See Greenlaw v. United States,
554 U.S. 237, __,
128 S. Ct. 2559, 2564-67 (2008) (holding that,
in the absence of a Government cross-appeal, an appellate court
may not sua sponte correct a district court error if the
correction would be to the defendant’s detriment).
For the reasons stated, we affirm the district court’s
amended judgment. 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
10
