United States v. Perry
United States v. Perry
Opinion of the Court
MEMORANDUM
Dennis Perry (“Perry”) appeals his conviction for being a felon in possession of a firearm and ammunition. He also appeals his 200-month sentence. We have jurisdiction under 28 U.S.C. § 1291 to review the district court’s final judgment. We affirm Perry’s conviction and remand for a
1. The district court did not err in finding that the warrants to search Perry’s residence and car were supported by probable cause.
The affidavit filed in support of the warrant to search Perry’s residence included telephone calls between Perry and known drug dealers and statements by the security officer at Perry’s condominium complex that activities commonly associated with drug dealing occurred around Perry’s condo. The affidavit also included statements by confidential informants that Peny was selling drugs from the condo and monitoring the complex’s security cameras. The informants were reliable and had a sufficient basis of knowledge. See United States v. Alvarez, 358 F.3d 1194, 1203 (9th Cir. 2004) (“In determining probable cause, the magistrate should consider an informant’s veracity, reliability and basis of knowledge....”). Thus, the affidavit in support of probable cause established “a fair probability” that drugs or weapons would be found in Perry’s residence. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
The affidavit in support of the application to search Perry’s car also established a fair probability that the car contained contraband. See id. The affidavit identified the car as belonging to Perry and the confidential informants independently reported that they had witnessed Perry sell drugs from the car. Thus, the magistrate judge also had a substantial basis for finding probable cause to search Perry’s car. See McQuisten, 795 F.2d at 861.
2. The district court did not violate Perry’s Sixth Amendment right to trial by finding that he was an “Armed Career Criminal” under the ACCA and that he had obstructed justice during trial.
The district court also did not violate Perry’s Sixth Amendment right to tri
3. The district court did not violate Perry’s Fifth Amendment due process rights when it found by a preponderance of the evidence that Perry was an Armed Career Criminal and had obstructed justice.
4. Perry argued for the first time in his reply brief that the government failed to prove that his prior felonies were predicate offenses under the ACCA, and that the district court erred by relying solely on the Presentence Report to enhance his sentence. We exercise our discretion to consider his challenge and find that a limited remand is appropriate.
The district court erred by relying solely on information in the Presentence Report to find that Perry had three qualifying convictions. See United States v. Franklin, 235 F.3d 1165, 1171-72 (9th Cir. 2000) (quoting United States v. Potter, 895 F.2d 1231, 1238 (9th Cir. 1990)) (stating a presentence report is “not a form of ‘clearly reliable evidence’ upon which a district court permissibly may rely to enhance a defendant’s sentence under § 924(e)” when the report does not include the statutes of conviction for the prior crimes). There is nothing in the record showing that the government submitted the statutes of conviction to the district court. See id. The district court’s reliance solely on the factual recitation in the Presentence Report violated Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which prohibits the court from using the facts underlying prior convictions to determine whether the convictions are predicate offenses. In circumstances where the fact of conviction and the statutory definition of the offense do not indicate whether the defendant was convicted of an offense specified under the guideline definition, the district court may expand its inquiry but “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254,161 L.Ed.2d 205 (2005).
Because there was insufficient documentation to support the ACCA enhancement, we remand for resentencing. The government may supplement the record to establish that Perry has three qualifying felonies. The district court shall reconsider only whether Perry qualifies for an enhancement under the ACCA.
We affirm Perry’s conviction and his sentence, except for the enhancement un
CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND REMANDED FOR RESENTENCING with instructions.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
. The court reviews de novo the district court's denial of a motion to suppress. United States v. Celestine, 324 F.3d 1095, 1100 (9th Cir. 2003). The court reviews for clear error a magistrate’s finding that probable cause existed to issue a warrant. Id.
. The court reviews de novo Perry’s constitutional challenge to his sentence. United States v. Dowd, 417 F.3d 1080, 1085-86 (9th Cir. 2005).
. The court reviews de novo Perry’s challenge. United States v. Brady, 895 F.2d 538, 539 (9th cir. 1990).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.