United States of America v. Ronnie Malik Perry

NOT PRECEDENTIAL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.

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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

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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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