United States Court of Appeals

for the Fifth Circuit

No. 20-30359

United States of America, 

Plaintiff—Appellee,

versus

Robert Perkins, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:19-CR-268-1

Before King, Smith, and Haynes, Circuit Judges.

Per Curiam:*

Appellant Robert Perkins pleaded guilty to conspiracy to possess with 

intent to distribute 50 grams or more of methamphetamine, in violation of 21 

U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and 846. The district court sentenced 

him to 156 months of imprisonment and five years of supervised release, a 

sentence within the applicable U.S. Sentencing Guidelines range. Perkins

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 29, 2021

Lyle W. Cayce

Clerk

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2

now claims that his sentence is both procedurally and substantively 

unreasonable. In addition, he argues that the district court committed 

reversible error under Federal Rule of Criminal Procedure 32 by permitting 

the Government to file late objections to the presentence investigation report 

(“PSR”). 

With respect to his procedural error claim, Perkins contends that the 

district court failed to consider the need to avoid unwarranted sentencing 

disparities under 18 U.S.C. § 3553(a)(6). The crux of his argument is that his 

co-defendant, Deborah Hawthorne, received a sentence of 132 months, even 

though she pleaded guilty to the same offense and, as a career offender, was 

subject to a higher guidelines range under § 4B1.1 of the Sentencing 

Guidelines.1 He further argues that this disparity shows that the district 

court failed to give appropriate weight to a required § 3553(a) factor and

committed a clear error of judgment in balancing the § 3553(a) factors, 

resulting in a substantively unreasonable sentence. Thus, Perkins’s

procedural and substantive reasonableness arguments are predicated on the 

same alleged error. 

Although the parties dispute the standard of review for Perkins’s 

sentencing-error claim, we need not resolve that issue; Perkins’s claim is 

unavailing regardless of the appropriate standard. See United States v. 

Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Section 3553(a)(6) requires 

district courts to consider “the need to avoid unwarranted sentence 

disparities among defendants with similar records who have been found 

1 Perkins claims that the district court did not adequately explain the reason for this 

sentencing disparity. However, the district court expressed the opinion that a defendant 

who is a career offender for solely drug trafficking offenses should not be treated differently 

from any other federal drug-trafficking offender. On that basis, as well as all of the § 3553(a) 

factors, including Hawthorne’s history, characteristics, and involvement in the offense, the 

district court imposed a below-guidelines sentence. 

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guilty of similar conduct.” See Gall v. United States, 552 U.S. 38, 51 (2007)

(listing the failure to consider § 3553(a) factors as a “significant procedural 

error”). However, we have explained that the disparity factor focuses on 

“similarly situated defendants nationwide” and “does not require the 

district court to avoid sentencing disparities between co-defendants who 

might not be similarly situated.” United States v. Guillermo Balleza, 613 F.3d 

432, 435 (5th Cir. 2010) (per curiam). Perkins also does not explain why or 

how the district court was supposed to assess any disparity between his 

sentence and that of a defendant not yet sentenced—Hawthorne was 

sentenced after Perkins. Because Perkins points only to the sentence of his 

co-defendant as evidence of an unwarranted sentencing disparity, he fails to 

establish that the district court committed a § 3553(a)(6) procedural error.

2 

Nor has Perkins rebutted the presumption of reasonableness afforded

to his within-guidelines sentence. See United States v. Alonzo, 435 F.3d 551, 

554 (5th Cir. 2006); see also Gall, 552 U.S. at 51. His substantive 

reasonableness argument is premised entirely on the disparity of his sentence 

and Hawthorne’s, which is “insufficient to render a sentence substantively 

unreasonable.” United States v. Hernandez, 633 F.3d 370, 379 (5th Cir. 2011); 

see also United States v. Stalnaker, 571 F.3d 428, 442 (5th Cir. 2009) (“[A] 

disparity of sentences among co-defendants does not, without more, 

constitute an abuse of discretion. The defendants cannot rely upon their co2 In any event, the record shows that Perkins and Hawthorne were not similarly 

situated; there were other sentencing considerations that justified the sentencing disparity. 

See Gall, 552 U.S. at 51 (instructing courts to consider the “totality of the circumstances” 

when reviewing a sentence). Perkins’s PSR indicated that he admitted to trafficking large 

amounts of methamphetamine, at least every other week, whereas Hawthorne’s PSR 

contained no such admission. Perkins also admitted some responsibility for convincing 

Hawthorne to return to selling drugs. Finally, Hawthorne’s PSR contained additional 

mitigating circumstances not applicable to Perkins. 

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defendants’ sentences as a yardstick for their own.” (quotation omitted)). 

Consequently, Perkins’s substantive reasonableness argument fails as well. 

Finally, Perkins contendsthat (1) the district court erred by permitting 

the Government’s late-filed objections without a finding of good cause; and 

(2) one late-filed objection—that he should be held accountable for an 

additional kilogram of methamphetamine—adversely influenced his 

sentence. Once again, the parties dispute the proper standard of review. 

Once again, we do not need to decide the standard of review because, 

regardless of the appropriate standard,3 Perkins has not shown that the 

district court reversibly erred. See United States v. Delgado-Martinez, 564 

F.3d 750, 752 (5th Cir. 2009) (agreeing with other circuits that “not every 

procedural error will require outright reversal” and “certain ‘harmless’ 

errors do not warrant reversal”). Perkins’s speculative claim that the district 

court imposed a higher sentence based on the challenged objection is 

unsupported by the record. The district court affirmatively overruled one of 

the objections and determined that the other one, the focus of Perkins’s 

appeal, “ha[d] no effect on the guidelines, so I’ll just . . . note it.” Thus, even 

if the district court erred in “permitting” the objections, they were irrelevant 

to the sentence and the alleged procedural error was harmless. Id. at 753 (“A 

procedural error during sentencing is harmless if ‘the error did not affect the 

district court’s selection of the sentence imposed.’” (quoting Williams v. 

United States, 503 U.S. 193, 203 (1992)). 

3 We have previously stated that “[t]he issue of whether a district court failed to 

comply with a Federal Rule of Criminal Procedure is reviewed de novo.” United States v. 

Ramirez-Gonzalez, 840 F.3d 240, 246 (5th Cir. 2016). We recognize, however, that district 

courts have “broad discretion” in deciding whether to entertain an untimely objection to 

the PSR for “good cause,” including considerations of prejudice. United States v. AngelesMendoza, 407 F.3d 742, 749 & n.11 (5th Cir. 2005). 

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The judgment of the district court is AFFIRMED.

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