US v. Derrick Perry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:06-cr-00082-FL-1 Copies to all parties and the district court/agency. [998589126].. [10-4467]

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Date Filed: 05/13/2011

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

marijuana,

two),

possession

with

intent

to

distribute

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).
170-month

sentence

on

count

two,

a

Perry received a

concurrent

sixty-month

sentence on count five, and a consecutive sixty-month sentence
on

the

firearms

imprisonment.

conviction,

for

a

total

of

230

months’

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.
246 (4th Cir. 2009).

United States v. Perry, 560 F.3d

This court added, “[a]s a result, it is

premature for us to consider Perry’s remaining challenge to the
district

court’s

variance

below

Perry

now

denial

the

appeals

of

suggested
the

his

additional

guideline

170-month

requests

range.”

sentence

he

Id.

for
at

received

a

259.
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

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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
deferential

court

reviews

Perry’s

abuse-of-discretion

States, 552 U.S. 38, 51 (2007).
requires

us

to

ensure

that

standard.

sentence
Gall

under
v.

a

United

“The first step in this review

the

district

court

committed

based on the amendment to the Guidelines for crack
offenses and sentenced him to 197 months’ imprisonment.

3

no

cocaine

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significant procedural error, such as improperly calculating the
Guidelines range.”
(4th

Cir.

alterations

2008)

United States v. Osborne, 514 F.3d 377, 387
(internal

omitted).

reasonableness

of

We

the

quotation
then

sentence,

marks,

consider
“tak[ing]

citations
the

substantive

into

account

Gall, 552 U.S. at 51.

totality of the circumstances.”

and

the

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

ratio.

variance

on

the

basis

of

the

100:1

crack-to-powder

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.
has

since

reinforced

the

point

that

“district

The Court
courts

are

entitled to reject and vary categorically from the crack-cocaine
Guidelines
Guidelines.”
(2009).
the

based

a

policy

disagreement

with

those

Spears v. United States, 129 S. Ct. 840, 843-44

Perry received the benefit of the 2007 amendments to

Sentencing

powder

on

cocaine

Guidelines
disparity.

designed
The
4

to

record

address
further

the

crack-to-

reflects

the

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district court amply understood its discretion in this case,
stating that it recognized its discretion “to vary further to
consider

the

Ultimately,

defendant’s
the

motion

district

for

court

a

downward

determined

departure.”

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

cert. denied, 131 S. Ct. 209 (2010).

disparities”),

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

Cir.

1993)

of

issues

expressly or impliedly decided by the appellate court).

To the

(explaining

States v.
mandate

Bell,
rule

5

F.3d

forecloses

5

64,

66

(4th

relitigation

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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

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supported a downward variance.
fashioning

Perry’s

sentence,

Page: 7 of 10

In fact, the district court, in
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.
sentence

However, the district court clearly found a

within

conclude the

the

Guidelines

district

court

did

range
not

was

appropriate.
its

abuse

We
in

discretion

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
therefore

or

in

argues

his
that

first

direct

consideration

appeal.
of

these

The

Government

arguments

was

precluded by the mandate rule, which “forecloses relitigation of
issues expressly or impliedly decided by the appellate court,”
and

“litigation

of

foregone on appeal.”

issues

decided

by

the

district

court

but

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

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of a higher court has laid to rest.

Page: 8 of 10

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
year

Perry argued that he was already subject to a ten-

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

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the

Date Filed: 05/13/2011

language

of

subsection

chapter.

Id. at 423.

with

Page: 9 of 10

other

subdivisions

of

the

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.
at 467.

See Doe, 511 F.3d

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,

subject

to

131
a

S.

Ct.

mandatory,

at

23

(holding

consecutive

“that

sentence

a
for

defendant
a

§

is

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
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its

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applicability,

and

ultimately

Page: 10 of 10

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

Perry’s sentence.
his

first

endangerment

initially

applied

to

Perry did not challenge the enhancement in

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.
facts

and

materials

legal
before

We dispense with oral argument because the
contentions

are

adequately

the

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED
10