UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4603

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SEAN PERRY, a/k/a Sean Austin Perry,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Charleston. Thomas E. Johnston, 

District Judge. (2:10-cr-00139-1)

Submitted: November 23, 2011 Decided: December 1, 2011

Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, 

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, 

Appellate Counsel, Lex A. Coleman, Assistant Federal Public 

Defender, Charleston, West Virginia, for Appellant. R. Booth 

Goodwin II, United States Attorney, Monica L. Dillon, Assistant 

United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Sean Austin Perry appeals his conviction and fiftyseven month sentence imposed after he pled guilty without a plea 

agreement to one count of distribution of oxycodone, in 

violation of 21 U.S.C. § 841(a)(1) (2006); and one count of 

aiding and abetting the possession with intent to distribute 

oxycodone, in violation of 21 U.S.C. §§ 2, 841(a)(1) (2006). 

Perry’s sole argument on appeal is that his sentence should be 

vacated because it is allegedly greater than necessary to comply 

with the purposes of 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 

2011) since: (1) the Guidelines allegedly punish crimes 

involving oxycodone more harshly than other narcotics offenses; 

and (2) in imposing the fifty-seven month sentence, the district 

court allegedly focused solely on deterrence under § 3553(a), 

rather than considering other compelling factors, such as 

Perry’s history and characteristics. We reject Perry’s 

arguments and affirm the district court’s judgment.

This court reviews a sentence for reasonableness under 

an abuse of discretion standard. See Gall v. United States, 552 

U.S. 38, 51 (2007). This review requires consideration of both 

the procedural and substantive reasonableness of a sentence. 

Id. This court must first assess whether the district court 

properly calculated the advisory Guidelines range, considered 

the § 3553(a) factors, analyzed any arguments presented by the 
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parties, and sufficiently explained the selected sentence. Id.

at 49-50.

If there is no procedural error, we review the 

substantive reasonableness of the sentence, “tak[ing] into 

account the totality of the circumstances, including the extent 

of any variance from the Guidelines range.” United States v. 

Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal quotation 

marks and citation omitted), cert. denied, 131 S. Ct. 307 

(2010). However, this court presumes that a sentence within a 

properly calculated Guidelines range is reasonable. United 

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Perry does 

not allege that the district court procedurally erred in 

imposing his sentence and, thus, his within-Guidelines sentence 

is entitled to a presumption of reasonableness. Id. 

We conclude that Perry has failed to rebut the 

presumption of reasonableness. First, we discern no error in 

the district court’s rejection of Perry’s argument that he was 

entitled to a variant sentence because the Guidelines allegedly 

punish oxycodone offenses more harshly than other narcotics 

offenses. Admittedly, “district courts may ‘vary from 

Guidelines ranges based solely on policy considerations, 

including disagreements with the Guidelines.’” United States v. 

Engle, 592 F.3d 495, 502 (4th Cir.), cert. denied, 131 S. Ct. 

165 (2010) (quoting Kimbrough v. United States, 552 U.S. 85, 101
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(2007)). Although a district court is “at liberty” to vary from 

a particular Guideline, it is equally clear that “[n]o judge is 

required . . . to do so.” United States v. Corner, 598 F.3d 

411, 416 (7th Cir. 2010). The record establishes that the 

district court was well aware of its authority to reject the 

manner in which the Guidelines treat oxycodone-related offenses, 

but simply chose not to do so. 

We also conclude that the district court did not abuse 

its discretion in placing emphasis on its perceived need to 

deter others from similar crimes in imposing Perry’s sentence. 

Specifically, the district court, while recognizing its 

authority to vary from Perry’s Guidelines range, clearly 

explained its rationale for declining to do so, including the 

fact that: (1) oxycodone and other opiate-based drugs have 

become a serious law enforcement issue in its district; (2) 

Perry was not from West Virginia; and (3) his drugs were from 

Detroit, Michigan, which has produced extensive criminal 

activity. 

Perry’s assertions to the contrary, the district court 

also explicitly considered Perry’s history and characteristics; 

namely, his lack of countable criminal history, his decent 

upbringing, his education, and his potential to become a 

productive member of society. Because it is apparent from the 

district court’s comments at sentencing that it carefully 
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considered the Guidelines and the § 3553(a) factors in 

fashioning an appropriate sentence for Perry, and because the 

district court sentenced Perry within — in fact, at the bottom 

of — Perry’s Guidelines range, we conclude that Perry’s fiftyseven month sentence is reasonable. 

Based on the foregoing, we affirm the district court’s 

judgment. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

AFFIRMED