Sentencing Guidelines – RICO Violation

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7^th Circuit Court of Appeals

Case Name: United States of America v. David Perez

Case No.: 19-1448

Officials: SYKES, Chief Judge, and KANNE and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines – RICO Violation

David Perez was a member of the Latin Kings street gang in Maywood, Illinois, and served in several leadership positions in which he ordered or personally carried out acts of violence, including the attempted murder of a former gang member. He pleaded guilty to conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), and possessing a firearm as a felon, id. § 922(g)(1). The district judge sentenced him to concurrent terms of 336 months and 120 months in prison, respectively—below the advisory range under the Sentencing Guidelines.

Perez challenges his sentence on two grounds. He first argues that the judge incorrectly held that the attempted murder predicate for the RICO violation increased the maximum penalty on that count to life in prison under 18 U.S.C. § 1963(a). He also contends that the judge committed a procedural error by failing to consider his argument under 18 U.S.C. § 3553(a)(6) about the need to avoid unwarranted sentencing disparities with similarly situated defendants.

We affirm. The judge correctly determined that the RICO violation was “based on” an act of racketeering that is punishable by life imprisonment under state law— discharging a firearm in an attempted murder—a predicate act that raised the applicable maximum penalty from 20 years to life under § 1963(a). See United States v. Brown, 973 F.3d 667, 709 (7th Cir. 2020). The argument about unwarranted sentencing disparities is both waived and meritless. It is waived because at sentencing the judge twice asked Perez’s counsel whether he was satisfied with the court’s explanation of the sentence, and both times counsel failed to mention any § 3553(a)(6) concerns. Waiver aside, a sentence within or below a properly calculated Guidelines range necessarily complies with § 3553(a)(6). United States v. Sanchez, 989 F.3d 523, 540–41 (7th Cir. 2021).

Affirmed

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Derek A Hawkins is Corporate Counsel, at Salesforce.