United States v. Perez

86 F.4th 1311

UNITED STATES of America, Plaintiff-Appellee, v. Marco Antonio PEREZ, a.k.a. Red, Defendant-Appellant.

No. 22-10267

United States Court of Appeals, Eleventh Circuit

Filed: November 14, 2023

Appeal from the United States District Court for the Southern District of Alabama, D.C. Docket Nos. 1:21-cr-00005-JB-N-1, 1:18-cr-00340-KD-B-1

Christopher John Bodnar, Scott Alan Gray, U.S. Attorney Service - Southern District of Alabama, DOJ-USAO, Southern District of Alabama, Mobile, AL, for Plaintiff-Appellee.

John W. Beck, Beckdefense.Com, Inc., Daphne, AL, for Defendant-Appellant.

Before Jordan, Lagoa, and Ed Carnes, Circuit Judges.

JORDAN, Circuit Judge:

In relevant part, 18 U.S.C. § 3147 provides that, if a person commits a felony offense while on pretrial release, he "shall be sentenced, in addition to the sentence prescribed for the offense, to . . . a term of imprisonment of not more than ten years," with the additional term to be "consecutive to any other sentence of imprisonment." We hold that a sentence imposed pursuant to § 3147 can exceed the maximum term prescribed for the underlying offense(s) of conviction. But in such a circumstance the issue of whether the person committed a felony offense while on pretrial release must be submitted to a jury and proven beyond a reasonable doubt pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny.

I

In late 2018 a grand jury in Mobile, Alabama, charged Marco Antonio Perez with possessing a stolen firearm in violation of 18 U.S.C. § 922(j). The district court allowed him to be released on bond pending trial. A probation officer instructed him on the terms of his pretrial supervision, and provided him with a form which included the following language:

The commission of a federal offense while on pretrial release will result in an additional sentence of a term of imprisonment of not more than ten years, if the offense is a felony, or a term of imprisonment of not more than one year, if the offense is a misdemeanor. This sentence shall be in addition to any other sentence you receive.

D.E. 66-1 at 4. Mr. Perez signed the form, indicating that he understood its terms. See id.

Not long after he was released, Mr. Perez faked his own kidnapping. The Mobile Police Department then began looking for Mr. Perez pursuant to an arrest warrant. While off duty on a Sunday, Officer Sean Tuder was informed that Mr. Perez was staying at the Peach Place Inn Apartments in Mobile. Officer Tuder called the patrol sergeant to request assistance in arresting Mr. Perez, and then he drove over to the Peach Place Inn in his personal car and dressed in civilian clothes.

Upon seeing Mr. Perez, Officer Tuder jumped out of his car and aimed his gun at him. Mr. Perez froze and slowly backed away. Officer Tuder ran toward Mr. Perez and attempted to wrestle him into control. A struggle ensued. Mr. Perez pulled a previously stolen firearm out of his waistband and shot Officer Tuder three times. Those shots proved fatal.

Mr. Perez tried to run into a nearby wooded area, but other officers arrived and captured him. A superseding indictment charged him with receiving a firearm while under indictment in violation of 18 U.S.C. § 922(n), possessing a stolen firearm in violation of 18 U.S.C. § 922(j), obstruction of justice by killing a witness in violation of 18 U.S.C. § 1512(a)(1)(C), and carrying, using, and discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The case proceeded to trial, and the jury convicted him of the two § 922 firearm charges and acquitted him of the § 1512 and § 924 charges.

After trial, but before sentencing, the government filed a notice informing Mr. Perez that it was going to seek a ten-year consecutive sentence pursuant to § 3147. The probation office calculated the total offense level as 52 and the criminal history category as VI, with a corresponding advisory range of life in prison under the Sentencing Guidelines. The total offense level of 52 included a three-level enhancement because of § 3147. See U.S.S.G. § 3C1.3 ("If a statutory sentencing enhancement under 18 U.S.C. § 3147 applies, increase the offense level by 3 levels.").¹

The § 922(n) conviction carried a statutory maximum sentence of five years in prison, while the § 922(j) conviction carried a statutory maximum sentence of ten years in prison. Running these sentences consecutively, as set out in U.S.S.G. § 5G1.2(d), resulted in a total maximum sentence of fifteen years. That sentence was still below the advisory guideline range of life in prison, even after a ten-year consecutive sentence was tacked on pursuant to § 3147 because Mr. Perez committed the § 922(n) offense while on pretrial release.

The probation office determined that the advisory guideline range was 300 months (or twenty-five years) in prison and the district court agreed. Mr. Perez objected to the § 3147 ten-year consecutive sentence, asserting that there was an Apprendi error because (a) the ten-year sentence exceeded the maximum sentences permitted for his underlying offenses of conviction, and (b) the jury never found beyond a reasonable doubt that he committed a felony offense while on pretrial release (the necessary fact for the § 3147 consecutive sentence). The district court ruled that there was no Apprendi problem because the jury found Mr. Perez guilty of receiving a firearm while under indictment in violation of § 922(n), and sentenced him to a prison term of 300 months.

II

We review the legality of Mr. Perez's sentence de novo. See United States v. Cobbs, 967 F.2d 1555 (11th Cir. 1992). This plenary standard applies to the interpretation of § 3147 and to the Apprendi issue. See Dept. of Caldas v. Diageo PLC, 925 F.3d 1218, 1221 (11th Cir. 2019) (statutory interpretation presents a question of law); United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001) (whether a sentence violates Apprendi is subject to de novo review).²

III

Mr. Perez argues that § 3147 did not authorize the district court to exceed the statutory maximum sentences for his underlying offenses of conviction (which totaled fifteen years). In his view, § 3147 only allows a court to increase (i.e., enhance) a sentence within the statutory maximum for the underlying offense(s) of conviction.

A

Our starting point is the language of § 3147. See United States v. Braddy, 11 F.4th 1298, 1309 (11th Cir. 2021). Here is the full text of the statute:

A person convicted of an offense committed while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense to

(1) a term of imprisonment of not more than ten years if the offense is a felony; or

(2) a term of imprisonment of not more than one year if the offense is a misdemeanor.

A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

18 U.S.C. § 3147. We have described § 3147 as a "sentence enhancement statute." United States v. Tyndale, 209 F.3d 1292, 1295 (11th Cir. 2000).

We "normally interpret[ ] a statute in accord with the ordinary public meaning of its terms at the time of its enactment." Bostock v. Clayton Cty., 590 U.S. —, 140 S.Ct. 1731, 1738, 207 L.Ed.2d 218 (2020). Like the Third Circuit in United States v. Lewis, 660 F.3d 189, 192 (3d Cir. 2011), we read the language of § 3147 to require a consecutive sentence-of up to ten years-in addition to the sentence for the offenses of conviction, even where the enhancement takes the total sentence beyond the statutory maximum for the underlying offense(s) of conviction.

The first paragraph of § 3147 requires a court (emphasis ours) to impose a sentence of up to ten years "in addition to the sentence prescribed for the offense." And the last paragraph of § 3147 specifies (emphasis again ours) that the "term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment." Congress would not have used the phrases "in addition to the sentence prescribed" and "shall be consecutive" if it meant for the § 3147 enhancement to be included only as part of the sentence for the underlying offenses of conviction. See Lewis, 660 F.3d at 192 (reviewing for plain error but conducting plenary statutory analysis). Moreover, § 3147 "contains no qualification or exception where adding up to ten years of the 'sentence prescribed' would exceed the statutory maximum for the underlying offense. It is difficult for us to read this language in any other manner; by its own terms, the provision states that a sentence of up to ten years shall be imposed 'in addition to the sentence prescribed' for the underlying felony." Id. Accord United States v. Confredo, 528 F.3d 143, 155 (2d Cir. 2008) (stating, in dicta, that § 3147 "exposes [the defendant] to a higher maximum, i.e., ten more years, than the highest maximum he could have received on the offense-on-release counts").

The D.C. and Fifth Circuits have said in dicta that § 3147 only increases a sentence within the guideline range (and within the statutory maximum) for the underlying offense(s) of conviction. See United States v. Samuel, 296 F.3d 1169, 1175 (D.C. Cir. 2002) ("Where a defendant has not been separately convicted of an offense under § 3147, but instead has merely had his offense level increased under [U.S.S.G.] § 2J1.7 [now U.S.S.G. § 3C1.3], the Sentencing Guidelines decree that the maximum term to which he may be sentenced is the maximum authorized for the underlying offense.") (citing U.S.S.G. § 5G1.1); United States v. Dison, 573 F.3d 204, 209 (5th Cir. 2009) ("[R]egardless of the fact that § 3147 calls for punishment 'in addition to the sentence prescribed' for the underlying offense, the § 3147 enhancement can never result in a sentence in excess of the statutory maximum prescribed for the offense committed while on release[.]") (citing U.S.S.G. § 5G1.1(a) and Samuel). We do not find their statements...