US v. Sy Perri

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00211-D-1. Copies to all parties and the district court/agency. [998976486]. [12-4160]

Appeal: 12-4160

Doc: 36

Filed: 11/07/2012

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4160

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SY ARTHUR PERRI,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:11-cr-00211-D-1)

Submitted:

September 25, 2012

Decided:

November 7, 2012

Before NIEMEYER, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Joshua L. Rogers, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 12-4160

Doc: 36

Filed: 11/07/2012

Pg: 2 of 4

PER CURIAM:
Sy Arthur Perri appeals his 108-month sentence after
his guilty plea to being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1) (2006).
challenges

the

district

Guidelines range. *
This
substantive
standard.

court’s

calculation

of

advisory

We affirm.

court

reviews

reasonableness

a

sentence

using

the

for

procedural

and

abuse-of-discretion

Gall v. United States, 552 U.S. 38, 51 (2007); United

States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
procedural
whether

his

Perri

the

reasonableness,
district

Guidelines range.

court

this

court

correctly

must

first

calculated

Lynn, 592 F.3d at 575.

In analyzing

the

determine
advisory

“The [G]overnment

bears the burden of proving the facts necessary to establish the
applicability of [a sentencing] enhancement by the preponderance
of the evidence.”

United States v. Garnett, 243 F.3d 824, 828

(4th Cir. 2001).

“We review factual findings for clear error,

and legal conclusions de novo.”

*

United States v. Davis, 679

Perri also contends that the “assumed error harmlessness
inquiry” from United States v. Savillon-Matute, 636 F.3d 119,
123 (4th Cir.), cert. denied, 123 S. Ct. 454 (2011), does not
apply.
Because we conclude that the district court did not
procedurally err, we need not determine the applicability of
Savillon-Matute to this case.

2

Appeal: 12-4160

Doc: 36

Filed: 11/07/2012

Pg: 3 of 4

F.3d 177, 182 (4th Cir. 2012); United States v. Harvey, 532 F.3d
326, 328 (4th Cir. 2008) (defining clear error).
Perri
reference

first

§ 2K2.1(c)(1)(A)

the

U.S.

in

challenges
Sentencing

Guidelines

Manual

§ 2X1.1(a),

which,

(2011),

to

USSG

application

of

a

cross-

(“USSG”)
in

turn,

requires application of the Guidelines provisions relating to
robbery.

See

USSG

§ 2B3.1(a),

(b)(2)(B),

(b)(4)(A).

We

conclude that the district court did not clearly err in its
findings

of

application

fact
of

and

the

that

the

cross-reference

factual

findings

support

because

reliable

evidence

demonstrated that Perri used the unlawful firearm in connection
with a robbery.
Next, Perri argues that the district court should not
have imposed a four-level enhancement for abduction pursuant to
USSG

§ 2B3.1(b)(4)(A).

forcibly

accompanied

another room.
We

conclude

enhancement.

a

The

district

victim

from

court
one

found

room

in

that
a

Perri

house

to

See USSG § 1B1.1 cmt. n.1(A) (defining abducted).
that

these

facts

warrant

application

of

the

See United States v. Osborne, 514 F.3d 377, 387-90

(4th Cir. 2008).
Finally, Perri contests the application of a two-level
enhancement for reckless endangerment during flight pursuant to
USSG § 3C1.2.

The district court found that Perri attempted to

flee from arrest and, in the process, “flailed” a firearm.
3

We

Appeal: 12-4160

Doc: 36

conclude

that

Filed: 11/07/2012

this

conduct

Pg: 4 of 4

is

sufficient

to

support

the

enhancement.
Finding no error in the district court’s calculation
of Perri’s Guidelines range, we conclude that Perri’s sentence
is

procedurally

substantive

reasonable.

reasonableness

of

Perri
his

does

not

contest

within-Guidelines

the

sentence.

Accordingly, we affirm the judgment of the district court.
dispense

with

oral

argument

because

the

facts

and

We

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

4