USA v. Perry, (3rd Cir. 2006)
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NOT PRECEDENTIAL
U N IT E D STATES COURT OF APPEALS
F O R THE THIRD CIRCUIT
No. 05-1033
UNITED STATES OF AMERICA,
v. R O N N IE MALIK PERRY,
Appellant
On Appeal from the United States District Court
f o r the Middle District of Pennsylvania
(D .C . Criminal No. 03-cr-00321)
D is tric t Judge: Honorable Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
M a rc h 9, 2006
B e f o re : AMBRO, and BECKER, Circuit Judges and STAGG, District Judge*
(F ile d : March 14, 2006
OPINION
BECKER, Circuit Judge. P u r s u a n t to a plea agreement, appellant Ronnie Malik Perry entered a plea of g u ilty to felony charges involving the distribution of narcotics. He was sentenced to 81 m o n th s imprisonment. The question presented for review is whether it was plain error in lig h t of no objection for the court not to adjust the appellant's offense level downward for a c c e p ta n c e of responsibility.
D e f en s e counsel gives a plausible interpretation of why he did not press the a c c e p ta n c e responsibility issues. The government's response is conciliatory: B y letter dated November 18, 2004, the court advised the p a rtie s that the Appellant would only be held responsible for 2 1 ounces of cocaine as opposed to the fifteen but less than f if ty kilograms of cocaine found by the Probation Department.
(A-065). This resulted in a guideline imprisonment range of 7 0 -8 7 months as opposed to 240 months; in other words, more th a n a 60% reduction in his possible imprisonment range b a se d upon the district court's conclusion that Blakely should a p p ly to the United States Sentencing Guidelines. Indeed, as A p p e lla n t's counsel noted at sentencing, the Appellant was " th e beneficiary of an enormous break just be [sic] a felicitous c o n v e rg e n c e of circumstances." (A-068). Counsel went on th e n to explain why he believed the court should depart from th e applicable guideline range based upon the United States' M o tio n for Departure under U.S.S.G. § 5K1.1 (A-068-069).
It is presumably in light of this windfall that Appellant made n o objection at sentencing to the Pre-sentence Investigation R e p o rt's conclusion that he was not entitled to acceptance of r e s p o n s i b i l i t y.
T h i s might well in and of itself be grounds for remand. However, at all events, th e re is a Booker problem. See the companion cases of USA v. Kemp, No. 05-1224 (3d C ir. Submitted March 9, 2006)(non precedential), and USA v. Abbott, No. 05-1140 (3d In United States v. Davis, 407 C ir. Submitted March 9, 2006) (non precedential).
F .3 d 162 (3d Cir. 2005) (en) (banc), an opinion relating to the denial of a government p e titio n for rehearing en banc consideration of a Booker claim on plain error review, this C o u rt stated that except in limited circumstances we will presume prejudice and direct a re m a n d for re-sentencing where the district court imposed a sentence in the belief that the a p p lic a b le Sentencing Guidelines were mandatory. That was the situation here, and we p e rc e iv e no circumstance in this case which warrants a different result from that found in D a v is.
W e will therefore vacate the judgment and remand for re-sentencing.
*The Honorable Tom Stagg, United States District Judge for the Western District o f Louisiana, sitting by designation.
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