United States v. Perez-Jiminez
654 F.3d 1136
| 10th Cir. | 2011Background
- Perez-Jiminez, a federal inmate, possessed two sharpened shanks in his cell, about 5.5 inches long each, found by prison officers.
- He was indicted for possession of a weapon while an inmate of a federal correctional institution under 18 U.S.C. § 1791(a)(2) & (b)(3) and pleaded guilty.
- A Presentence Report was prepared; the district court treated the instant offense as a crime of violence and he as a career offender under U.S.S.G. § 4B1.1(a).
- Guidelines calculation yielded an advisory imprisonment range of 37 to 46 months and a fine range of $4,000 to $40,000.
- The district court imposed 37 months’ imprisonment and a $2,000 fine.
- Perez-Jiminez appeals, challenging the career-offender designation and the propriety of the $2,000 fine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether possession of a weapon in prison is a crime of violence | Perez-Jiminez contends the offense is not a crime of violence absent Begay-type analysis. | Perez-Jiminez maintains the conduct-specific inquiry shows the offense presents a serious risk of physical injury. | Yes; the offense is a crime of violence under the conduct-specific inquiry. |
| Whether Perez-Jiminez qualifies as a career offender | The government argues the offense falls within the crime-of-violence prong of 4B1.1(a) given the conviction. | Perez-Jiminez opposes career-offender status arguing the offense is not a qualifying predicate crime. | Perez-Jiminez is properly classified as a career offender based on the conviction as a crime of violence. |
| Reasonableness of the fine (procedural) | The district court failed to consider the burden on dependents and other § 3572 and § 5E1.2 factors. | Perez-Jiminez argues the court did not adequately address the fine factors or the burden on his dependents. | No procedural error; the court considered relevant factors and the record indicates the basis for the fine. |
| Reasonableness of the fine (substantive) | The government contends the $2,000 fine is within or below the advisory range and presumptively reasonable. | Perez-Jiminez claims the fine is excessive given the parties’ positions and his limited ability to pay. | The $2,000 fine is presumptively reasonable and not an abuse of discretion. |
Key Cases Cited
- United States v. Riggans, 254 F.3d 1200 (10th Cir. 2001) (standard of review for crime-of-violence determinations)
- United States v. Patterson, 561 F.3d 1170 (10th Cir. 2009) (standard of review for career-offender status)
- Wise v. United States, 597 F.3d 1141 (10th Cir. 2010) (conduct-specific vs categorical approaches to crimes of violence)
- United States v. McConnell, 605 F.3d 822 (10th Cir. 2010) (limits of ad hoc fact inquiries in crime-of-violence analysis)
- Begay v. United States, 128 S. Ct. 1581 (2008) (test for residual clause applicability in violent-felonies context)
- Sykes v. United States, 131 S. Ct. 2267 (2011) (limits Begay; risk-based approach to residual clause)
- Romero v. United States, 122 F.3d 1334 (10th Cir. 1997) (possession of a deadly weapon in prison presents serious risk)
- Zuniga v. United States, 553 F.3d 1330 (10th Cir. 2009) (possession of a deadly weapon in prison as violent felony in ACCA context)