United States v. Moises Perez
667 F. App'x 543
6th Cir.2016Background
- Perez pleaded guilty to being a felon in possession of firearms (18 U.S.C. § 922(g)(1)).
- The presentence report labeled him an Armed Career Criminal under the ACCA (18 U.S.C. § 924(e)), citing five prior convictions including a 2005 Ohio attempted intimidation conviction.
- The PSR produced a Guidelines range of 180–210 months and the ACCA 15-year mandatory minimum; the district court imposed 210 months.
- Perez appealed only the use of the Ohio attempted intimidation conviction as an ACCA predicate, conceding three other convictions that could qualify as predicates.
- Perez argued that if attempted intimidation is not a predicate he is entitled to a new sentencing hearing because the court relied on four predicates; the government and record showed the district court based the sentence on overall criminal history and offense conduct.
- The Sixth Circuit affirmed, holding it need not decide whether the attempted intimidation conviction is a violent felony because three other valid predicates supported application of the ACCA and the within-Guidelines sentence was not an abuse of discretion.
Issues
| Issue | Perez's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Perez’s Ohio attempted intimidation conviction is a violent felony under the ACCA | Attempted intimidation is not a violent felony and thus should not count as an ACCA predicate | Even if attempted intimidation did not qualify, three other prior convictions suffice for ACCA application; district court relied on overall history | Court declined to resolve the qualification question because three other valid predicates existed; affirmed sentence and denied new sentencing hearing because court relied on overall criminal history and properly imposed a within-Guidelines sentence |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (standard for reviewing within-Guidelines sentences for abuse of discretion)
- United States v. Bailey, [citation="634 F. App'x 473"] (6th Cir. 2015) (refusing to reach alternative arguments once three qualifying predicates were found)