Filed: Jan. 15, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4352 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO PERRIN, a/k/a Antonio Hill, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:11-cr-00318-TDS-1) Submitted: December 23, 2013 Decided: January 15, 2014 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion.
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4352 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO PERRIN, a/k/a Antonio Hill, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:11-cr-00318-TDS-1) Submitted: December 23, 2013 Decided: January 15, 2014 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. M..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4352
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO PERRIN, a/k/a Antonio Hill,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00318-TDS-1)
Submitted: December 23, 2013 Decided: January 15, 2014
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Ripley Rand,
United States Attorney, Lisa B. Boggs, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Perrin appeals the 175-month sentence imposed
after he pled guilty, without a plea agreement, to one count of
possession of a firearm after having been convicted of a crime
punishable by more than one year of imprisonment, in violation
of 18 U.S.C. § 922(g) (2012), and one count of tampering with a
witness, in violation of 18 U.S.C. § 1512(b)(1), (b)(2)(A)
(2012). Perrin was initially indicted on the felon in
possession count. During the investigation, officers learned of
Perrin’s efforts to convince a witness to change his statement
to deny that Perrin possessed the firearm. As a result, a
superseding indictment was returned that added the witness
tampering count. On appeal, Perrin argues that the district
court erred in imposing an enhancement for obstruction of
justice because the enhancement results in double counting. He
also argues that the court erred in denying him a reduction for
acceptance of responsibility. Finally, he asserts that the
sentence is unreasonable because the district court focused
primarily on his criminal history and failed to adequately
consider his mitigating circumstances. We affirm.
This court reviews a sentence for procedural and
substantive reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). In
evaluating procedural reasonableness, we consider whether the
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district court properly calculated the defendant’s advisory
Guidelines range, gave the parties an opportunity to argue for
an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, selected a sentence supported by the record, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
49-51; see also United States v. Carter,
564 F.3d 325, 328 (4th
Cir. 2009) (sentencing court “must make an individualized
assessment based on the facts presented”) (citation and emphasis
omitted). If the sentence is free of procedural error, we
review it for substantive reasonableness, taking into account
the totality of the circumstances.
Gall, 552 U.S. at 51. We
presume that a sentence within or below a properly calculated
Guidelines range is substantively reasonable. United States v.
Susi,
674 F.3d 278, 289 (4th Cir. 2012).
Perrin first argues that the enhancement for
obstruction of justice was improperly imposed in contravention
of Application Note 7 to U.S. Sentencing Guidelines Manual
(USSG) § 3C1.1 (2012), which generally prohibits application of
the enhancement when the underlying conviction is an obstruction
offense. He asserts that, because the witness tampering count
carried a higher statutory maximum punishment, and he received
the Guidelines maximum because of the increased statutory
maximum as compared to the ten-year maximum on the felon in
possession count, his obstructive conduct was double counted.
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The probation officer applied Application Note 8 of USSG
§ 3C1.1, which Perrin does not discuss on appeal, to determine
the offense level for both counts. That application note
provides that if a defendant is convicted of an obstruction
offense and an underlying offense to which the obstructive
conduct related, the counts are grouped pursuant to USSG
§ 3D1.2. The offense level for that group is the offense level
for the underlying offense increased by the two-level
enhancement for obstruction of justice, or the offense level for
the obstruction offense, whichever is greater. USSG § 3C1.1
cmt. n.8; see also United States v. Jones, 716 F.3d 851, 858-59
(4th Cir.) (discussing grouping of counts involving substantive
offenses and witness tampering), cert. denied,
134 S. Ct. 496
(2013).
Because the felon in possession count yielded the
higher offense level, it was used to calculate the offense level
for the group, and the obstruction enhancement was properly
applied to that calculation. Perrin’s argument regarding the
greater statutory maximum applicable to the witness tampering
count is of no moment, as he pled guilty to that charge, and the
increased maximum punishment is the mere result of his conduct.
We conclude that no double counting occurred, and the
enhancement for obstruction of justice was properly imposed.
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Perrin next argues that the district court erred in
denying him a reduction for acceptance of responsibility. When
the district court recognizes that it has the legal authority to
grant a reduction for acceptance of responsibility but declines
to do so, this court reviews its factual determinations for
clear error. United States v. Hargrove, 478 F.3d 195, 198 (4th
Cir. 2007). The Guidelines provide that entry of a guilty plea
does not automatically entitle a defendant to a reduction for
acceptance of responsibility, and a defendant’s conduct that
supports an enhancement for obstruction of justice is ordinarily
inconsistent with acceptance of responsibility. USSG § 3E1.1
cmt. n.3, 4; see also United States v. Knight,
606 F.3d 171,
175-77 (4th Cir. 2010) (upholding denial of reduction for
acceptance of responsibility where defendant received
obstruction enhancement for absconding from pretrial
supervision).
In this case, the district court acknowledged its
authority to award a reduction for acceptance of responsibility
notwithstanding the obstruction enhancement, but found “that
this is not an extraordinary case that would warrant acceptance
of responsibility in the face of obstruction of justice under
the facts as they are set forth in this case.” Perrin properly
received an enhancement for obstruction of justice. The conduct
supporting that enhancement — encouraging a witness to recant
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his statement to authorities and possibly commit perjury –
belies Perrin’s assertion that he accepted responsibility for
his criminal conduct. Giving the district court’s evaluation
the great deference it is due, USSG § 3E1.1 cmt. n.5, the
acceptance reduction was properly denied.
Lastly, Perrin argues that the district court imposed
an unreasonably lengthy sentence because it failed to adequately
consider and account for mitigating circumstances. Perrin
asserts that, in determining his sentence, the district court
focused almost exclusively on his criminal history and made only
passing reference to the mitigating factors of his age, limited
education, significant mental health and drug problems, and his
desire to turn from his life of crime. We disagree.
The district court thoroughly discussed Perrin’s
criminal history, the seriousness of the instant offenses, and
the need to deter him from future criminal conduct, to protect
the public from his crimes, to provide just punishment, and
promote respect for the law. The court also correctly noted
that Perrin’s mental health and drug abuse issues could be
addressed by the Bureau of Prisons, and recommended treatment
for those conditions. The court also noted the testimony of
Perrin’s sentencing witness, a counselor in a jail ministry
program, and encouraged Perrin to continue his commitment to
change his life. We conclude that the district court
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sufficiently articulated an individual application of the
§ 3553(a) factors to Perrin, and adequately explained its
sentence.
Finally, Perrin’s sentence is within the properly
calculated Guidelines range and is thus presumed reasonable.
Such a presumption is rebutted only by showing “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) (internal quotation marks omitted). Perrin has
failed to establish any basis to rebut the presumption.
Accordingly, we affirm Perrin’s sentence. 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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