United States of America v. Terrance Perry

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-1118
__________
UNITED STATES OF AMERICA
v.
TERRANCE PERRY,
Appellant.
__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Crim. No. 1:04-cr-053)
District Judge: Honorable Yvette Kane
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 27, 2005
___________
Before: RENDELL, FUENTES and GARTH, Circuit Judges
(Opinion Filed: September 30, 2005)
__________
OPINION

-- 1 of 11 --

Officer Sanderson had known Perry for a year or more, had seen him “probably . .1
. at least once every three nights,” and had spoken to him in the past. Officer Swank, too,
had had “former dealings” with Perry, and so “knew exactly who it was” when he first
saw the man running on Thompson Street. When Officer Marshall first saw the running
man, he “didn’t recognize him, but something in the back of [his] mind said, ‘I think I
know this guy,’ but [he] wasn’t sure.” Minutes later, when he saw the man at a closer
range, he “immediately recognized Terrance Perry,” whom he had known from the
neighborhood for three or four months.
2
Garth, Circuit Judge:
Terrance Perry (“Perry”) appeals his conviction for possession of a firearm by a
convicted felon in violation of 18 U.S.C. §922(g)(1), his conviction for possession of a
controlled substance in violation of 21 U.S.C. §844(a), and his sentence. For the reasons
that follow, we will affirm.
I.
In the early hours of June 15, 2003, Harrisburg Bureau of Police Officers
Marshall, Swank and Sanderson (“the officers”) were monitoring pedestrian traffic at a
local late-night restaurant in Harrisburg, Pennsylvania. At approximately 2:55 a.m., the
officers heard four or five gunshots, and ran in the direction from which the shots had
come. As they were running west on Thompson Street, a man the officers recognized as
Perry turned onto Thompson Street about half a block ahead of them from Evergreen1
Street. The intersection of Thompson and Evergreen was well-lit. The man was wearing
a white T-shirt, dark jeans and a baseball hat.
The officers slowed their pace and lost sight of the running man momentarily.
When they radioed that they were pursuing a suspect, however, they received a return

-- 2 of 11 --

3
transmission from a Corporal Wetzel reporting that he had seen a car turning around in
the parking lot of the nearby YMCA. Just as the car was leaving the YMCA driveway, it
came into the officers’ view, and Corporal Wetzel pulled up from behind and stopped it.
There were three men in the car: Jimmy Futrell in the driver’s seat, Perry in the
front passenger seat and Zakaria Ajlane (“Ajlane”), a 16-year-old Moroccan national, in
the backseat. Perry was wearing a white T-shirt, dark jeans and a baseball hat, so Officer
Marshall “knew immediately [that he was the same person] who[m he had been] chasing
because he had the same thing on.” Perry was sweating and winded.
At Officer Marshall’s request Perry stepped out of the car; Officer Marshall
immediately noticed a small bag of crack cocaine on the ground between Perry’s feet,
and another bag of crack cocaine on the car floor between the passenger seat and the
passenger door. Officer Marshall then “cleared the car.” He saw a snub-nosed revolver
with wooden grips lying under the passenger seat with its cylinder open and the chamber
empty. While patting Perry down, Officer Marshall discovered a holster on Perry’s belt
into which the gun fit neatly, and which bore markings that matched the indentations on
the side of the gun. The officers arrested and handcuffed Perry, and put him in the back
of the police car.
Later that night, empty bullet cartridge casings were found outside the YMCA
building. A Pennsylvania State Police forensics firearm and tool mark examiner later
discovered that the four casings had been fired from the gun Officer Marshall found

-- 3 of 11 --

4
under Perry’s seat.
Attempts to link the gun and Perry forensically were inconclusive: latent
fingerprints on the gun were not of any value for comparison purposes and swabbings
taken from Perry’s hands about an hour after his arrest did not reveal the presence of
gunshot residue. The officers nevertheless believed that it was Perry who had fired the
shots they heard.
At trial, Ajlane told a different story. He testified that the gun the officers found
under Perry’s car seat on June 15, 2003 belonged to him, and that it was he who fired the
shots that night, he who – dressed in a white T-shirt, dark pants and a baseball hat – ran
from the police, and he who later threw the cartridges out the car window near the
YMCA. He also testified that he threw crack out the window of the car to avoid being
caught with it during the arrest. According to Ajlane, Perry never possessed either the
gun or the crack.
Ajlane had approached the prosecutor and case agent to tell them this story only
two weeks before trial. At that meeting, Ajlane told a less elaborated version of the
story, omitting several details to which he testified at trial even though the case agent had
explicitly asked him if there was anything he left out. Moreover, at this meeting, Ajlane
was unable to explain why, when the police stopped the car on June 15, 2003, Perry was
wearing the holster for a gun that he had never possessed.
II.

-- 4 of 11 --

5
On February 11, 2004, a grand jury sitting in Harrisburg, Pennsylvania returned
an indictment against Perry, charging him with possession of a firearm by a convicted
felon in violation of 18 U.S.C. §922(g)(1) (Count I), possession of a stolen firearm in
violation of 18 U.S.C. §922(j) (Count II), and possession of crack cocaine in violation of
21 U.S.C. §844(a) (Count III). At the government’s request, the District Court dismissed
Count II.
Perry was tried before U.S. District Judge Yvette Kane and a jury on June 9 and
10, 2004. The jury found Perry guilty of both Count I and Count III.
On January 3, 2005, the District Court sentenced Perry to concurrent terms of
imprisonment of 72 months and 12 months, for the two Counts respectively. Perry did
not object to the District Court’s application of the Sentencing Guidelines. This timely
appeal followed.
III.
The District Court had jurisdiction over this criminal action pursuant to 18 U.S.C.
§3231. This Court has jurisdiction to review the final order of conviction pursuant to 28
U.S.C. §1291, and to entertain the challenge to the sentence pursuant to 18 U.S.C.
§3742(a).
Because Perry did not challenge the sufficiency of the evidence at trial, we review
his conviction for plain error. FED. R. CRIM. P. 52(b); United States v. Wolfe, 245 F.3d
257, 260-61 (3d Cir. 2001). In conducting plain error review, we do not independently

-- 5 of 11 --

6
“weigh the evidence” or “determine the credibility of the witnesses.” United States v.
Dent, 149 F.3d 180, 187 (3d Cir. 1998). Rather, we “review the record in the light most
favorable to the prosecution to determine whether any rational trier of fact could have
found proof of guilt beyond a reasonable doubt based on the available evidence.” Wolfe,
245 F.3d at 261.
Because Perry did not challenge his sentence before the District Court, we review
that conviction for plain error as well. United States v. Davis, 407 F.3d 162, 164 (3d Cir.
2005).
IV.
Conviction
To establish that Perry was a felon in possession of a firearm in violation of
§922(g)(1), the government was required to prove the following elements beyond a
reasonable doubt: (1) that Perry had previously been convicted of a crime punishable by
imprisonment for a term exceeding one year; (2) that Perry knowingly possessed a
firearm; and (3) that the firearm had passed in interstate commerce. United States v.
Dodd, 225 F.3d 340, 344 (3d Cir. 2000). The government and Perry stipulated to the first
and third elements. On appeal Perry thus challenges only the finding that he knowingly
possessed a firearm.
The gun was not seized from Perry’s person but was rather retrieved from
underneath the passenger seat of the car. Therefore, to sustain the conviction, the

-- 6 of 11 --

7
government had to prove that Perry had “constructive possession” of the gun.
“[C]onstructive possession requires an individual to have the power and intent to exercise
both dominion and control over the object he . . . is charged with possessing.” United
States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999).
There was sufficient evidence that Perry exercised “dominion and control” over
the gun. After hearing gunshots, three officers who knew Perry from the neighborhood
saw – from a distance of half a block on a well-lit street – a man they identified as Perry
running from the direction from which the gunshots had come. When the officers saw
Perry outside the YMCA driveway, he was (1) dressed in the way the fleeing man had
been dressed, (2) sweaty and winded, as though he had been running, (3) sitting in a car
seat underneath which a gun had been placed, and (4) wearing a holster which fit that gun
perfectly. Casings that had been fired from that gun were later found near the YMCA
where the car had been stopped. Based on all of this circumstantial evidence it was
reasonable for the jury to infer that Perry had shot the gun, and that he had dominion and
control over the gun.
Perry argues that insufficient evidence supported his conviction for firearm
possession because no one actually saw him shoot the gun, or even in actual possession of
the gun. An eyewitness is not, however, a prerequisite for a conviction. We have
recognized that “inferences from established facts are accepted methods of proof when no
direct evidence is available so long as there exists a logical and convincing connection

-- 7 of 11 --

8
between the facts established and the conclusion inferred.” United States v. Cartwright,
359 F.3d 281, 287 (3d Cir. 2004) (citation omitted).
Perry further argues that his conviction for firearm possession should be
overturned because the forensic evidence was inconclusive. As the government’s expert
testified at trial, however, negative gunshot residue findings do not demonstrate
conclusively that the individual tested did not fire a gun. The friction created by Perry’s
handcuffed hands rubbing against the seat of the police car in which he rode to the station
could easily have wiped any gunshot residue away.
Perry argues finally that Ajlane’s testimony that he rather than Perry possessed
and shot the gun should have prevented his conviction for firearm possession. It is true
that the jury could have found Ajlave’s testimony credible and chosen to believe it,
instead of crediting the prosecution’s witnesses and believing the alternate theory the
government presented based on their testimony. They did not do this, however, and it is
not this Court’s job “to weigh the evidence or to determine the credibility of the
witnesses.” Dent, 149 F.3d at 187 (citation omitted). Instead, this Court must “presume
that the jury properly evaluated credibility of the witnesses, found the facts, and drew
rational inferences.” United States v. Iafelice, 978 F.2d 92, 94 (3d Cir. 1992). There was
sufficient evidence to sustain Perry’s jury conviction for possession of a firearm by a
convicted felon.
Perry also challenges the sufficiency of the evidence that he violated 21 U.S.C.

-- 8 of 11 --

Pursuant to §844(a), it is unlawful for “any person knowingly or intentionally to2
possess a controlled substance . . .” See Gerbier v. Holmes, 280 F.3d 297, 316 (3d Cir.
2002).
9
§844(a), but he does not make any specific arguments in support of this challenge.2
Officer Marshall testified at trial about his discovery of the crack in question:
I asked Mr. Perry to step out of the vehicle, he came out of the
vehicle, and immediately, when he came out, I looked down,
and there was a small bag of crack cocaine right at his feet.
Like, step out of the car, it was just, you know, right in
between his feet.
(App. 37).
Q: The crack you saw at the defendant’s feet, where was he
standing at the time that you saw that?
A: He was standing right in the door. Right when you open
the passenger door and you actually put your feet on the floor
– It’s like you turn, put your feet on the floor, on the ground,
and you stand up, the crack was right in between your ankles,
your insteps. That’s where it was sitting on the ground.
Q: At what point did you see that crack cocaine? How long
had the defendant been outside the car before you saw it?
A: Maybe two seconds as I was patting him down. As I was
patting him down, I went down, and I saw the crack right
between his feet as I was doing the patdown.
Q: So you didn’t actually see the crack fall from his person,
you simply noticed it on the ground at his feet. Is that
correct?
A: Yes, that’s correct.

-- 9 of 11 --

Perry’s total offense level was 20 under the Sentencing Guidelines. Combined3
with his criminal history category of VI, this offense level yielded a Guideline
imprisonment range of 70-87 months. Judge Kane imposed an aggregate sentence of
imprisonment for 70 months, at the bottom of this range.
10
(App. 54-55). A rational trier of fact could have found proof of guilt beyond a
reasonable doubt based on inferences drawn from this evidence.
Sentence
On January 3, 2005, Judge Kane sentenced Perry, as she was required to do at the
time, under the then-mandatory Sentencing Guidelines. Nine days later, the U.S.3
Supreme Court handed down its opinion in United States v. Booker, 543 U.S. ----, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Court held, inter alia, that 18 U.S.C.
§3553(b)(1) – the provision of the Sentencing Reform Act that made the Guidelines
mandatory – was unconstitutional, and that it must be severed and excised from the
Guidelines. Booker transformed what had been mandatory guidelines into advisory
guidelines for the information and use of the district courts in whom discretion has now
been reinstated. Perry filed his appeal on January 12, 2005 – the very day Booker was
decided.
In Davis, an en banc panel of this Court considered how sentences such as Perry’s
that were on direct appeal when Booker was decided should be handled. We noted:
Because the sentencing calculus was governed by a
Guidelines framework erroneously believed to be mandatory,
the outcome of each sentencing hearing conducted under this
framework was necessarily affected. Although plain error

-- 10 of 11 --

11
jurisprudence generally places the burden on an appellant to
demonstrate specific prejudice flowing from the District
Court’s error, in this context where mandatory sentencing
was governed by an erroneous scheme prejudice can be
presumed . . .[A]s noted by the Court of Appeals for the Sixth
Circuit, “[w]e would be usurping the discretionary power
granted to the district courts by Booker if we were to assume
that the district court would have given [defendant] the same
sentence post-Booker.” United States v. Oliver, 397 F.3d 369,
380 n. 3 (6th Cir. 2005). Failure to remand for resentencing,
therefore, could adversely affect the fairness and integrity of
the proceedings. Accordingly, defendants sentenced under
the previously mandatory regime whose sentences are being
challenged on direct appeal may be able to demonstrate plain
error and prejudice. We will remand such cases for
resentencing.
407 F. 3d at 165.
We will vacate Perry’s sentence and remand for resentencing in accordance with
Booker.

-- 11 of 11 --