                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2006

USA v. Perry
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1033




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Recommended Citation
"USA v. Perry" (2006). 2006 Decisions. Paper 1439.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1439


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                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT




                                     No. 05-1033


                          UNITED STATES OF AMERICA,

                                          v.

                             RONNIE MALIK PERRY,
                                          Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (D.C. Criminal No. 03-cr-00321)
                      District Judge: Honorable Sylvia H. Rambo


                  Submitted Under Third Circuit LAR 34.1(a)
                               March 9, 2006
     Before: AMBRO, and BECKER, Circuit Judges and STAGG, District Judge*

                               (Filed: March 14, 2006 )




                                      OPINION




BECKER, Circuit Judge.


      *The Honorable Tom Stagg, United States District Judge for the Western District
of Louisiana, sitting by designation.
       Pursuant to a plea agreement, appellant Ronnie Malik Perry entered a plea of

guilty to felony charges involving the distribution of narcotics. He was sentenced to 81

months imprisonment. The question presented for review is whether it was plain error in

light of no objection for the court not to adjust the appellant’s offense level downward for

acceptance of responsibility.

       Defense counsel gives a plausible interpretation of why he did not press the

acceptance responsibility issues. The government’s response is conciliatory:

              By letter dated November 18, 2004, the court advised the
              parties that the Appellant would only be held responsible for
              21 ounces of cocaine as opposed to the fifteen but less than
              fifty kilograms of cocaine found by the Probation Department.
              (A-065). This resulted in a guideline imprisonment range of
              70-87 months as opposed to 240 months; in other words, more
              than a 60% reduction in his possible imprisonment range
              based upon the district court’s conclusion that Blakely should
              apply to the United States Sentencing Guidelines. Indeed, as
              Appellant’s counsel noted at sentencing, the Appellant was
              “the beneficiary of an enormous break just be [sic] a felicitous
              convergence of circumstances.” (A-068). Counsel went on
              then to explain why he believed the court should depart from
              the applicable guideline range based upon the United States’
              Motion for Departure under U.S.S.G. § 5K1.1 (A-068-069).
              It is presumably in light of this windfall that Appellant made
              no objection at sentencing to the Pre-sentence Investigation
              Report’s conclusion that he was not entitled to acceptance of
              responsibility.

       This might well in and of itself be grounds for remand. However, at all events,

there is a Booker problem. See the companion cases of USA v. Kemp, No. 05-1224 (3d

Cir. Submitted March 9, 2006)(non precedential), and USA v. Abbott, No. 05-1140 (3d



                                             2
Cir. Submitted March 9, 2006) (non precedential).       In United States v. Davis, 407

F.3d 162 (3d Cir. 2005) (en) (banc), an opinion relating to the denial of a government

petition for rehearing en banc consideration of a Booker claim on plain error review, this

Court stated that except in limited circumstances we will presume prejudice and direct a

remand for re-sentencing where the district court imposed a sentence in the belief that the

applicable Sentencing Guidelines were mandatory. That was the situation here, and we

perceive no circumstance in this case which warrants a different result from that found in

Davis.

         We will therefore vacate the judgment and remand for re-sentencing.




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