United States v. Lesandro Perez
5 F.4th 390
3rd Cir.2021Background
- Lesandro Perez sold firearms and controlled substances to undercover officers and informants; on March 9, 2017 an undercover officer observed two guns kept under a mattress in the same room as drugs, packaging materials, and paraphernalia.
- Perez pled guilty to federal firearm and drug offenses in three indictments; the Government sought a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) based on Application Note 14(B), which raised his Guidelines range to 121–151 months.
- At sentencing Perez objected, arguing the guns were possessed to sell (not to facilitate drug trafficking) and that mere physical proximity to drugs did not satisfy the “in connection with” requirement.
- The District Court applied the enhancement solely on the basis of close proximity and sentenced Perez to 121 months; Perez appealed.
- The Third Circuit held that the Guideline language is genuinely ambiguous and that Commentary Note 14(B) is entitled to Auer/Kisor deference, but the Note creates a rebuttable presumption (not an automatic rule) when a firearm is found in close proximity to drugs.
- The court vacated Perez’s sentence and remanded so the district court can determine whether a relationship existed between the firearms and the drug-trafficking activity and afford Perez the opportunity to rebut the presumption; Judge Bibas concurred only in the judgment, arguing Note 14(B) is invalid and that the majority improperly shifts burdens.
Issues
| Issue | Perez's Argument | Government / District Court Argument | Held |
|---|---|---|---|
| Whether § 2K2.1(b)(6)(B) is ambiguous and Commentary Note 14(B) merits Auer/Kisor deference | The Guideline’s “in connection with” is unambiguous and requires a relationship; Commentary cannot expand it | Note 14(B) is the Sentencing Commission’s authoritative interpretation and applies in drug cases | Court: Guideline ambiguous under Kisor; Note 14(B) entitled to Auer deference as a reasonable interpretation |
| Whether mere physical proximity of guns to drugs automatically triggers the 4‑level enhancement | Proximity alone is insufficient; must show some relationship or purpose linking guns to drug activity | Proximity (guns found in same room) suffices under Note 14(B) | Court: Close proximity gives rise to a rebuttable presumption that the firearm had potential to facilitate the drug offense; proximity alone is not always dispositive |
| Nature of the presumption created by Note 14(B) and who bears the burden | Defendant should not bear burden to disprove connection; government must prove enhancement elements | Government and several circuits treated Note 14(B) as automatic/applicative without defendant’s rebuttal | Court: Presumption is rebuttable — government must first prove proximity; then defendant may present evidence that presence was accidental or unrelated; concurrence objects to burden-shifting concern |
| Remedy where District Court applied enhancement solely on proximity without allowing rebuttal | Perez sought vacatur and remand for reconsideration under the correct interpretive framework | Government did not argue harmlessness | Court: Vacated sentence and remanded for the district court to consider relationship and allow Perez to rebut the presumption |
Key Cases Cited
- Smith v. United States, 508 U.S. 223 (Sup. Ct. 1993) (interpreting “in relation to” to require purpose/effect and excluding accidental or coincidental presence)
- Stinson v. United States, 508 U.S. 36 (Sup. Ct. 1993) (treating Guidelines Commentary as agency interpretation entitled to deference unless plainly erroneous)
- Kisor v. Wilkie, 139 S. Ct. 2400 (Sup. Ct. 2019) (limits and clarifies Auer deference; requires genuine ambiguity and reasonable agency interpretation)
- United States v. Loney, 219 F.3d 281 (3d Cir. 2000) ("in connection with" requires some relationship and excludes mere coincidence)
- United States v. West, 643 F.3d 102 (3d Cir. 2011) (physical proximity may suffice in some cases but is not per se sufficient for possession cases; discussed Note 14(B) presumption for trafficking)
- United States v. Nasir, 982 F.3d 144 (3d Cir. 2020) (discussing scope of deference to Guidelines Commentary under administrative-law principles)
- United States v. Paneto, 661 F.3d 709 (1st Cir. 2011) (concluding Note 14(B) sufficed based on proximity in that circuit)