Opinion
23-2492
05-28-2024
United States of America Plaintiff - Appellee v. Vincent Michael Perez Defendant-Appellant
Unpublished
Submitted: February 12, 2024
Appeal from United States District Court for the District of South Dakota - Northern
Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
Judge Smith completed his term as chief judge of the circuit on March 10, 2024. See 28 U.S.C. § 45(a)(3)(A).
PER CURIAM.
After a jury found Vincent Perez guilty of two child-pornography offenses, see 18 U.S.C. § 2252A(a)(1), (2)(A), he received partially consecutive sentences totaling 216 months. Although he argues that making any part of them consecutive was an abuse of discretion, we affirm.
Perez's total sentence was originally 46 months longer, but a sentencing error led to a remand. See United States v. Perez, 61 F.4th 623, 626-28 (8th Cir. 2023) (holding that an enhancement for "covered sex crime[s]" did not apply (quoting U.S.S.G. § 4B1.5(b)(1))). At resentencing, the district court shortened the sentence for each charge to 188 months. It then reached 216 months by making 28 months for one of them consecutive to the other.
The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota.
Although complicated, doing so was procedurally and substantively reasonable. See United States v. Boyum, 54 F.4th 1012, 1015 (8th Cir. 2022) (reviewing the concurrent-versus-consecutive decision for an abuse of discretion). By statute, most criminal sentences can be concurrent, consecutive, or anything in between. See 18 U.S.C. § 3584(a) (exempting certain attempt offenses). The court went the partially consecutive route because of the "substantial danger" Perez posed to children and his failure to take responsibility. See Boyum, 54 F.4th at 1016 (affirming based on "a reasonable explanation for imposing the sentence consecutively"); see also 18 U.S.C. §§ 3553(a), 3584(b) (listing factors to consider).
To the extent the district court thought it could not simply vary upward on remand under 18 U.S.C. § 3742(g)(2), we note that the statutory restriction on selecting "a sentence outside the applicable guidelines range . . . is invalid after [United States v. Booker, 543 U.S. 220 (2005)]." Pepper v. United States, 562 U.S. 476, 493-95 (2011) (citation omitted) (explaining that it would make the Sentencing Guidelines "effectively . . . mandatory in an entire set of cases").
In the process, the district court mentioned the longer sentence it had imposed before, but only as a reminder of how it had previously weighed the statutory sentencing factors, not as an "anchor" for the sentence it was about to announce. Nor did it rely on any other improper factor or commit a clear error of judgment. See United States v. Richart, 662 F.3d 1037, 1052, 1054 (8th Cir. 2011) (explaining that a district court can "var[y] based on factors already taken into account by the advisory guidelines" and "weigh[] the relevant factors more heavily than [a defendant] would prefer" (citation omitted)). We accordingly affirm the judgment of the district court.