     10-1758-cr
     United States v. Perry



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18th day of April, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                JOSÉ A. CABRANES,
 9                         Circuit Judge,
10                MARK R. KRAVITZ,*
11                         District Judge.
12
13
14       - - - - - - - - - - - - - - - - - - - -X
15       UNITED STATES OF AMERICA,
16
17                    Appellee,
18
19                    -v.-                                        10-1758-cr
20
21
22       DONALD R. PERRY, III,

                *
                The Honorable Mark R. Kravitz, of the United States
         District Court for the District of Connecticut, sitting by
         designation.
                                                  1
 1
 2            Defendant-Appellant.
 3   - - - - - - - - - - - - - - - - - - - -X
 4
 5   FOR APPELLANT:    JONATHAN J. EINHORN, New Haven, CT.
 6
 7   FOR APPELLEE:     MICHAEL J. GUSTAFSON, Assistant United
 8                     States Attorney (SANDRA S. GLOVER,
 9                     Assistant United States Attorney, of
10                     counsel), for David B. Fein, United
11                     States Attorney for the District of
12                     Connecticut, New Haven, CT.
13
14        Appeal from a judgment of the United States District
15   Court for the District of Connecticut (Bryant, J.).
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18   AND DECREED that the judgment of the district court be
19   AFFIRMED.
20
21        Defendant-Appellant Donald Perry, III, appeals from the
22   judgment of conviction entered by the United States District
23   Court for the District of Connecticut (Bryant, J.),
24   principally sentencing him to six months’ imprisonment and
25   four months’ home confinement. Perry pled guilty to one
26   count of altering and fabricating records in a federal
27   investigation, in violation of 18 U.S.C. § 1519. He
28   fabricated four invoices at the request of a cohort, Gregory
29   Laugeni, in order to disguise a rent-kickback scheme from
30   federal investigators. We assume the parties’ familiarity
31   with the underlying facts, the procedural history, and the
32   issues presented for review.
33
34
35   [1] Perry claims that the district court failed to comply
36   with Federal Rule of Criminal Procedure 11(b)(1). Since he
37   failed to object at sentencing, we review for plain error.
38   United States v. Vonn, 535 U.S. 55, 58-59 (2002). As
39   conceded at oral argument, Perry falls far short of
40   establishing “a reasonable probability that, but for the
41   error, he would not have entered the plea.” United States
42   v. Dominguez Benitez, 542 U.S. 74, 83 (2004). In any event,
43   Perry received notice of his rights, because any points
44   omitted by the court were discussed (1) by the government
45   during the colloquy, (2) in the plea agreement, or (3) in
46   the pre-sentence report. (Strict compliance with Fed. R.

                                  2
 1   Crim. P. 11(b)(1)(N) may have been required for Perry to
 2   knowingly and voluntarily waive his appellate rights, but
 3   the government does not seek to enforce the appeal-waiver
 4   provision in his plea agreement.)
 5
 6   [2] Perry argues that he received a harsher sentence for
 7   having fewer charitable contributions than Laugeni. Because
 8   Perry failed to object during sentencing, we review for
 9   plain error. See United States v. Verkhoglyad, 516 F.3d
10   122, 128 (2d Cir. 2008). The district court referred to
11   charitable contributions as a “mitigating factor that is not
12   present here.” Joint Appendix at 55. Laugeni may thus have
13   been sentenced more leniently because of his charitable
14   contributions of time and money, but it cannot be said that
15   Perry has been penalized for lack of charity. The propriety
16   of treating Laugeni’s contributions as a mitigating factor
17   in his sentence cannot be challenged here.
18
19   [3] Perry catalogs three instances where the court
20   erroneously identified him as Laugeni during sentencing. We
21   review for plain error in view of his failure to object.
22   See Verkhoglyad, 516 F.3d at 128. Perry fails to explain
23   how the misidentifications harmed him, let alone affected
24   his substantial rights. United States v. Villafuerte, 502
25   F.3d 204, 209 (2d Cir. 2007). Any errors were thus not
26   plain.
27
28   We have considered Perry’s other arguments and conclude that
29   they lack merit. For the foregoing reasons, we hereby
30   AFFIRM the judgment of the district court.
31
32
33                              FOR THE COURT:
34                              CATHERINE O’HAGAN WOLFE, CLERK
35




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