In United States v. Perez, No. 22-10267 (Nov. 14, 2023) (Jordan, Lagoa, Ed Carnes), the Court affirmed Mr. Perez’s sentence.

While on bond pending trial, Mr. Perez was convicted of two felonies–violating 18 U.S.C. §§ 922(n) and 922(j).  The government informed him that, pursuant to § 18 U.S.C. § 3147, it was going to seek a ten-year consecutive sentence.  In relevant part, § 3147 provides that, if a person commits a felony offense while on pretrial release, he “shall be sentenced, in addition to the sentence prescribed for the offense, to . . . a term of imprisonment of not more than ten years,” with the additional term to be “consecutive to any other sentence of imprisonment.”

Here, the § 922(n) conviction carried a statutory maximum sentence of 5 years in prison, while the § 922(j) conviction carried a statutory maximum sentence of 10 years in prison.  Run consecutively, that resulted in a total maximum sentence of 15 years, notwithstanding the consecutive 10 years’ tacked on pursuant to § 3147.  Mr. Perez objected to the 10-year consecutive sentence, asserting that there was an Apprendi error because (a) the 10-year sentence exceeded the maximum sentences permitted for his underlying offenses of conviction, and (b) the jury never found beyond a reasonable doubt that he committed a felony offense while on pretrial release (the necessary fact for the § 3147 consecutive sentence).  In his view, § 3147 only allows a court to increase (i.e., enhance) a sentence within the statutory maximum for the underlying offense(s) of conviction.

The Court held that a sentence imposed pursuant to § 3147 can exceed the maximum term prescribed for the underlying offense(s) of conviction.  But in such a circumstance the issue of whether the person committed a felony offense while on pretrial release must be submitted to a jury and proven beyond a reasonable doubt pursuant to Apprendi and its progeny.  In so holding, the Court joined the Third and Second Circuits.

The Court, however, affirmed Mr. Perez’s sentence, noting that an Apprendi violation does not automatically lead to reversal.  Here, the error was harmless beyond a reasonable doubt because, on numerous occasions throughout the trial and appeal, Mr. Perez did not dispute that he was on pretrial release at the time of the §§ 922(n) and (j) offenses.