                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4948


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DUSTAN PETE PERRY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:11-cr-00073-RLV-DSC-6)


Submitted:   August 29, 2014                 Decided:   September 4, 2014


Before DUNCAN, AGEE, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Aaron Michel, Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, William M. Miller, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Dustan Pete Perry appeals his sentence for conspiracy

to   distribute     and    to    possess      with    intent    to       distribute      and

manufacture at least 500 grams of methamphetamine, in violation

of 21 U.S.C. § 846 (2012), and possession of pseudoephedrine for

the manufacture of methamphetamine, in violation of 21 U.S.C.

§ 841(c)(2) (2012).         Perry pled guilty without the benefit of a

written    plea    agreement      and   was     sentenced      to    a    total    of    262

months’ imprisonment and five years of supervised release.                                On

appeal, Perry asserts that the relevant Sentencing Guidelines

are unconstitutional and that his sentence was procedurally and

substantively      unreasonable.           Finding     no   reversible        error,      we

affirm Perry’s sentence.

            On appeal, Perry first asserts that no rational basis

exists    to     support    the    harsher       penalty       prescribed         by    U.S.

Sentencing       Guidelines       Manual       (“USSG”)     § 2D1.11         (2012)       as

compared to USSG § 2D1.1.               Because he did not challenge the

Guidelines’ constitutionality in the district court, we review

Perry’s claim for plain error.                 See Henderson v. United States,

133 S. Ct. 1121, 1124 (2013) (citing United States v. Olano, 507

U.S. 725, 731 (1993)).

            Federal Rule of Criminal Procedure 52(b) provides that

“[a]     plain    error    that     affects      substantial         rights       may     be

considered       even   though     it   was     not    brought       to    the     court’s

                                           2
attention.”         Fed. R. Crim. P. 52(b).                  To establish plain error,

Perry must show: “(1) that an error was made; (2) that the error

was    plain;       and    (3)    that    the    error      affected        his     substantial

rights.”        United States v. Carthorne, 726 F.3d 503, 510 (4th

Cir. 2013) (citing Henderson, 133 S. Ct. at 1126; Olano, 507

U.S. at 732-35).                If he makes this showing, the decision to

correct       the    error       remains      within       our     discretion,        which    we

exercise “only if the error would result in a miscarriage of

justice       or    would        otherwise      seriously          affect     the     fairness,

integrity, or public reputation of judicial proceedings.”                                     Id.

(internal      quotation          marks    omitted).          We    conclude        that   Perry

fails to establish plain error.                      See United States v. Ellefson,

419    F.3d    859,       866    n.4   (8th     Cir.       2005)    (differences         between

Guidelines had rational justification based on recognition “that

the manufacture of methamphetamine is an inherently dangerous

activity that creates substantial risks to public health and

safety”).

               Next, Perry challenges the procedural reasonableness

of his sentence.               In reviewing a sentence, we must first ensure

that    the        district       court    did       not     commit     any       “significant

procedural error,” such as failing to properly calculate the

applicable Guidelines range or failing to consider the § 3553(a)

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

district      court       is    not    required      to     “robotically          tick   through

                                                 3
§ 3553(a)’s every subsection.”                         United States v. Johnson, 445

F.3d 339, 345 (4th Cir. 2006).                           However, the district court

“must place on the record an individualized assessment based on

the particular facts of the case before it.”                              United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation

marks omitted).

              Because Perry argued for a sentence different than the

one   imposed,        we       review       his    remaining       claims      for    abuse   of

discretion and will reverse unless we conclude that any error

was harmless.          United States v. Lynn, 592 F.3d 572, 576 (4th

Cir. 2010).        In assessing a challenge to the district court’s

application of the Guidelines, we review the district court’s

factual findings for clear error and its legal conclusions de

novo.       See United States v. Alvarado Perez, 609 F.3d 609, 612

(4th Cir. 2010).                Only if we find the sentence procedurally

reasonable      can        we       consider       its    substantive        reasonableness.

Carter, 564 F.3d at 328.

              Perry    challenges            the       district    court’s     determination

that the total amount of drugs involved in the conspiracy was

reasonably      foreseeable,               and    therefore       attributable,       to   him.

Under   the     Sentencing               Guidelines,       a     defendant     convicted      of

conspiring to distribute controlled substances “is accountable

for   all    quantities             of   contraband      with     which   he    was    directly

involved     and   .       .    .    all    reasonably         foreseeable     quantities     of

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contraband that were within the scope of the criminal activity

that   he   jointly       undertook.”              USSG   §     1B1.3   cmt.     n.2.      The

government must prove this drug quantity by a preponderance of

the evidence.         United States v. Carter, 300 F.3d 415, 425 (4th

Cir. 2002).       The district court may rely on information in the

presentence report unless the defendant affirmatively shows that

the information is inaccurate or unreliable.                             Id.     A district

court’s     findings      on   drug      quantity         are    generally       factual    in

nature, and therefore we review for clear error.                           Id.     In light

of the evidence contained in the presentence report indicating

that      Perry       taught       his         coconspirators            how      to     cook

methamphetamine, was present during multiple cooking sessions at

multiple locations, and cooked methamphetamine himself in the

presence of others, we find that the district court did not

clearly     err     in   finding      that      the       entire    quantity      of    drugs

possessed     and     manufactured        by       the    conspiracy      was    reasonably

foreseeable to Perry.

             Perry next challenges the four-level enhancement the

district court imposed under USSG § 3B1.1(a) for his role as an

organizer or leader of the conspiracy.                          This determination is a

factual     finding      reviewed     for      clear      error.        United    States    v.

Cameron, 573 F.3d 179, 184, 186 (4th Cir. 2009).

             To qualify for the four-level enhancement, a defendant

must have been “an organizer or leader of a criminal activity

                                               5
that   involved     five       or    more    participants             or    was     otherwise

extensive.”       USSG     §   3B1.1(a).           Factors          that    distinguish     an

organizational      or   leadership         role        from    lesser      roles     include

exercising        decision-making            authority,              the      nature        of

participation in the offense, recruiting accomplices, claiming a

larger share of the criminal proceeds, planning or organizing

the offense, the nature and scope of illegal activity, and the

degree of control and authority over others.                           USSG § 3B1.1 cmt.

n.4.      The    enhancement         “is    appropriate             where    the    evidence

demonstrates      that   the    defendant          controlled         the    activities      of

other participants or exercised management responsibility.”                                Id.

(internal quotation marks omitted).                     The facts establishing the

enhancement      must    be     supported          by    a     preponderance         of     the

evidence.       See United States v. Harvey, 532 F.3d 326, 337 (4th

Cir. 2008).

            Here,    Perry      conspired        with        many    coconspirators        and

filled a central role in the conspiracy by providing the recipe

for    manufacturing           methamphetamine                 and     teaching           other

coconspirators how to cook methamphetamine.                           Accordingly, based

on the nature of Perry’s participation and the scope of his

illegal   activities,      we       find    that    the      district       court    did   not

clearly err in applying the four-level leadership enhancement.

            Perry contests the two-level enhancement based on the

creation of an environmental hazard.                           The Guidelines provide

                                             6
that, in calculating the offense level for unlawful possession

of    pseudoephedrine          or     other     listed     chemicals,        a     two-level

increase is applicable when the offense involved “an unlawful

discharge,       emission,       or    release      into    the       environment        of   a

hazardous      or    toxic     substance.”         USSG    §    2D1.11(b)(3).            Perry

argues    that      a   risk    of    such    discharge        is    inherent      in    every

methamphetamine         manufacturing         offense.         However,      the   district

court    applied        the    sentencing       enhancement          not    because      Perry

created a risk of discharge, but because Perry created an actual

discharge when he was involved in a methamphetamine cook that

“blew up.”          (J.A. 366).        Accordingly, we find no error in the

application of the two-level enhancement.

               Perry also challenges the substantive reasonableness

of his sentence, which we review by “tak[ing] into account the

totality of the circumstances.”                   Gall, 552 U.S. at 51.                 If the

sentence is within or below the properly calculated Guidelines

range, we apply a presumption on appeal that the sentence is

substantively reasonable.               United States v. Susi, 674 F.3d 278,

289 (4th Cir. 2012).            Such a presumption is rebutted only if the

defendant shows “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).            The    district      court

adequately considered Perry’s drug addiction, and nothing in the



                                              7
record     rebuts   the    presumption         that    Perry’s        sentence    is

substantively reasonable.

            Therefore,    we    affirm       the   judgment    of    the   district

court.     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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