UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4948

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DUSTAN PETE PERRY,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:11-cr-00073-RLV-DSC-6)

Submitted: August 29, 2014 Decided: September 4, 2014

Before DUNCAN, AGEE, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Aaron Michel, Charlotte, North Carolina, for Appellant. Anne M. 

Tompkins, United States Attorney, William M. Miller, Assistant 

United States Attorney, Charlotte, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Dustan Pete Perry appeals his sentence for conspiracy 

to distribute and to possess with intent to distribute and 

manufacture at least 500 grams of methamphetamine, in violation 

of 21 U.S.C. § 846 (2012), and possession of pseudoephedrine for 

the manufacture of methamphetamine, in violation of 21 U.S.C. 

§ 841(c)(2) (2012). Perry pled guilty without the benefit of a 

written plea agreement and was sentenced to a total of 262 

months’ imprisonment and five years of supervised release. On 

appeal, Perry asserts that the relevant Sentencing Guidelines 

are unconstitutional and that his sentence was procedurally and 

substantively unreasonable. Finding no reversible error, we 

affirm Perry’s sentence.

On appeal, Perry first asserts that no rational basis 

exists to support the harsher penalty prescribed by U.S. 

Sentencing Guidelines Manual (“USSG”) § 2D1.11 (2012) as 

compared to USSG § 2D1.1. Because he did not challenge the 

Guidelines’ constitutionality in the district court, we review 

Perry’s claim for plain error. See Henderson v. United States, 

133 S. Ct. 1121, 1124 (2013) (citing United States v. Olano, 507 

U.S. 725, 731 (1993)). 

Federal Rule of Criminal Procedure 52(b) provides that 

“[a] plain error that affects substantial rights may be 

considered even though it was not brought to the court’s 
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attention.” Fed. R. Crim. P. 52(b). To establish plain error, 

Perry must show: “(1) that an error was made; (2) that the error 

was plain; and (3) that the error affected his substantial 

rights.” United States v. Carthorne, 726 F.3d 503, 510 (4th 

Cir. 2013) (citing Henderson, 133 S. Ct. at 1126; Olano, 507 

U.S. at 732-35). If he makes this showing, the decision to 

correct the error remains within our discretion, which we

exercise “only if the error would result in a miscarriage of 

justice or would otherwise seriously affect the fairness, 

integrity, or public reputation of judicial proceedings.” Id.

(internal quotation marks omitted). We conclude that Perry 

fails to establish plain error. See United States v. Ellefson, 

419 F.3d 859, 866 n.4 (8th Cir. 2005) (differences between 

Guidelines had rational justification based on recognition “that 

the manufacture of methamphetamine is an inherently dangerous 

activity that creates substantial risks to public health and 

safety”).

Next, Perry challenges the procedural reasonableness 

of his sentence. In reviewing a sentence, we must first ensure 

that the district court did not commit any “significant 

procedural error,” such as failing to properly calculate the 

applicable Guidelines range or failing to consider the § 3553(a) 

factors. Gall v. United States, 552 U.S. 38, 51 (2007). The 

district court is not required to “robotically tick through 
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§ 3553(a)’s every subsection.” United States v. Johnson, 445 

F.3d 339, 345 (4th Cir. 2006). However, the district court 

“must place on the record an individualized assessment based on 

the particular facts of the case before it.” United States v. 

Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation 

marks omitted). 

Because Perry argued for a sentence different than the 

one imposed, we review his remaining claims for abuse of 

discretion and will reverse unless we conclude that any error 

was harmless. United States v. Lynn, 592 F.3d 572, 576 (4th 

Cir. 2010). In assessing a challenge to the district court’s 

application of the Guidelines, we review the district court’s 

factual findings for clear error and its legal conclusions de 

novo. See United States v. Alvarado Perez, 609 F.3d 609, 612 

(4th Cir. 2010). Only if we find the sentence procedurally 

reasonable can we consider its substantive reasonableness. 

Carter, 564 F.3d at 328. 

Perry challenges the district court’s determination 

that the total amount of drugs involved in the conspiracy was 

reasonably foreseeable, and therefore attributable, to him. 

Under the Sentencing Guidelines, a defendant convicted of 

conspiring to distribute controlled substances “is accountable 

for all quantities of contraband with which he was directly 

involved and . . . all reasonably foreseeable quantities of 
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contraband that were within the scope of the criminal activity 

that he jointly undertook.” USSG § 1B1.3 cmt. n.2. The 

government must prove this drug quantity by a preponderance of 

the evidence. United States v. Carter, 300 F.3d 415, 425 (4th 

Cir. 2002). The district court may rely on information in the 

presentence report unless the defendant affirmatively shows that 

the information is inaccurate or unreliable. Id. A district 

court’s findings on drug quantity are generally factual in 

nature, and therefore we review for clear error. Id. In light 

of the evidence contained in the presentence report indicating 

that Perry taught his coconspirators how to cook 

methamphetamine, was present during multiple cooking sessions at 

multiple locations, and cooked methamphetamine himself in the 

presence of others, we find that the district court did not 

clearly err in finding that the entire quantity of drugs 

possessed and manufactured by the conspiracy was reasonably 

foreseeable to Perry.

Perry next challenges the four-level enhancement the 

district court imposed under USSG § 3B1.1(a) for his role as an 

organizer or leader of the conspiracy. This determination is a 

factual finding reviewed for clear error. United States v. 

Cameron, 573 F.3d 179, 184, 186 (4th Cir. 2009). 

To qualify for the four-level enhancement, a defendant 

must have been “an organizer or leader of a criminal activity 
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that involved five or more participants or was otherwise 

extensive.” USSG § 3B1.1(a). Factors that distinguish an 

organizational or leadership role from lesser roles include 

exercising decision-making authority, the nature of 

participation in the offense, recruiting accomplices, claiming a 

larger share of the criminal proceeds, planning or organizing 

the offense, the nature and scope of illegal activity, and the 

degree of control and authority over others. USSG § 3B1.1 cmt. 

n.4. The enhancement “is appropriate where the evidence 

demonstrates that the defendant controlled the activities of 

other participants or exercised management responsibility.” Id.

(internal quotation marks omitted). The facts establishing the 

enhancement must be supported by a preponderance of the 

evidence. See United States v. Harvey, 532 F.3d 326, 337 (4th 

Cir. 2008). 

Here, Perry conspired with many coconspirators and 

filled a central role in the conspiracy by providing the recipe 

for manufacturing methamphetamine and teaching other 

coconspirators how to cook methamphetamine. Accordingly, based 

on the nature of Perry’s participation and the scope of his 

illegal activities, we find that the district court did not 

clearly err in applying the four-level leadership enhancement.

Perry contests the two-level enhancement based on the 

creation of an environmental hazard. The Guidelines provide 
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that, in calculating the offense level for unlawful possession 

of pseudoephedrine or other listed chemicals, a two-level 

increase is applicable when the offense involved “an unlawful 

discharge, emission, or release into the environment of a 

hazardous or toxic substance.” USSG § 2D1.11(b)(3). Perry 

argues that a risk of such discharge is inherent in every 

methamphetamine manufacturing offense. However, the district 

court applied the sentencing enhancement not because Perry 

created a risk of discharge, but because Perry created an actual 

discharge when he was involved in a methamphetamine cook that 

“blew up.” (J.A. 366). Accordingly, we find no error in the 

application of the two-level enhancement.

Perry also challenges the substantive reasonableness 

of his sentence, which we review by “tak[ing] into account the 

totality of the circumstances.” Gall, 552 U.S. at 51. If the 

sentence is within or below the properly calculated Guidelines 

range, we apply a presumption on appeal that the sentence is 

substantively reasonable. United States v. Susi, 674 F.3d 278, 

289 (4th Cir. 2012). Such a presumption is rebutted only if the 

defendant shows “that the sentence is unreasonable when measured 

against the § 3553(a) factors.” United States v. Montes-Pineda, 

445 F.3d 375, 379 (4th Cir. 2006). The district court 

adequately considered Perry’s drug addiction, and nothing in the 
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record rebuts the presumption that Perry’s sentence is 

substantively reasonable. 

Therefore, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process.

AFFIRMED