On November 14, 2023, the Eleventh Circuit issued its decision in United States v. Perez. In 2018, Perez was arrested for violating 18 U.S.C. 922(j), which makes it illegal to possess a stolen firearm. Perez was then released on bond pending trial. But, while on bond, Mr. Perez faked his own kidnapping and when found by police, pulled a previously stolen gun and shot and killed an officer. The United States then obtained a superseding indictment for the original charge plus a charge of receiving a firearm while under indictment in violation of 18 U.S.C. § 922(n), obstruction of justice for killing a witness, and carrying and using a firearm during a crime of violence. At trial, Perez was convicted of the two firearms charges. Perez’s appeal, however, concerns his sentencing.
For his conviction under § 922(n), Perez faced a statutory maximum of 5 years in prison. For his 922(j) conviction, Perez faced a statutory maximum of 10 years in prison. These sentences were set to run consecutively—meaning that Perez would serve the 10-year sentence and then the 5-year sentence. Prior to sentencing, however, the United States filed a notice that it would seek an additional 10-year sentence based on 18 U.S.C. § 3147, which requires an additional sentence of not more than 10 years when a defendant commits a felony offense on pre-trial release. This added another consecutive 10-year sentence for a total of 25 years in prison. Perez objected to the § 3147 sentence as a violation of Apprendi because: (1) that the sentence exceeded the maximum sentence permitted for his underlying convictions and (2) the jury never determined that he committed a felony while on pre-trial release.
On appeal, the Eleventh Circuit held that the 10-year consecutive sentence under § 3147 was appropriate based on the statutory language of § 3147. Specifically, the statute’s “in addition to the sentence prescribed for the offense” and “shall be consecutive to any other sentence” language. In doing so, the Eleventh Circuit rejected the position taken by the D.C. and Fifth Circuits, which have previously held that § 3147 only increases the guidelines range for the underlying convictions under the sentencing guidelines—as opposed to a separate sentence in addition to the sentences for the underlying convictions. The Court also rejected Perez’s arguments that the Eleventh Circuit’s own precedent required treating § 3147 as a guidelines issue. If the Eleventh Circuit had agreed with Perez and the Fifth and D.C. circuits it would have meant that Perez’s total sentence would have been capped at 15 years because when the sentencing guidelines calculations call for a sentence in excess of the statutory maximum sentence, the statutory maximum controls.
The Eleventh Circuit did agree with Perez that an Apprendi violation occurred. Apprendi v. New Jersey, 530 U.S. 466 (2000), requires that any fact that increases a punishment beyond the statutory maximum must be decided by the jury and supported by evidence beyond a reasonable doubt. In Perez’s case, the jury convicted him of the underlying offenses, but had no role in determining that he committed a felony offense while on pre-trial release. The Court rejected the United States’s arguments that the § 922(n) conviction satisfied Apprendi because a person does not have to be on pre-trial release in order to commit a felony while under indictment. Constitutionally, the issue of whether Perez committed a felony while on pre-trial release should have been determined by the jury. But, because Perez never disputed that he was on pre-trial release at the time of § 922(b) offense, the Apprendi violation was harmless.
