United States v. John Perez , 693 F. App'x 364 ( 2017 )

Case: 16-41201 Document: 00514078021 Page: 1 Date Filed: 07/18/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41201 FILED
Summary Calendar July 18, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk
Plaintiff-Appellee
v.
JOHN ANTHONY PEREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:16-CR-310-1
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
John Anthony Perez pleaded guilty to three counts of sexual exploitation
of a child and was sentenced to a cumulative prison term of 750 months and to
three concurrent 20-year terms of supervised release. See 18 U.S.C. § 2251.
Relying on Rutledge v. United States, 517 U.S. 292, 301-03 (1996), Perez
appeals the imposition of three additional special assessments of $5,000 each,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-41201
contending that he is indigent and that these assessments thus constitute
illegal punishment. See 18 U.S.C. § 3014. We affirm.
Perez concedes that he failed to raise this claim in the district court. The
parties disagree about the standard of review, but we pretermit that question
because it is irrelevant whether error was preserved, as Perez can demonstrate
no error at all. See United States v. Teuschler, 689 F.3d 397, 400 (5th Cir.
2012); United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
Under § 3014(a)(3), the district court shall assess a $5,000 additional
special assessment “on any non-indigent person” who was convicted of a crime
relating to the sexual exploitation and other abuse of children, as Perez was.
The statute does not require an express finding of non-indigency, see §3014,
and Perez cites no case holding that an express finding is required. By
adopting the presentence report, including its representations of financial
worth (none of which Perez disputes), and imposing the special assessments,
the district court implicitly determined that Perez was not indigent. See
United States v. Rodriguez-Rodriguez, 388 F.3d 466, 468 n.8 (5th Cir. 2004).
Perez does not show why this implicit finding is inadequate or erroneous.
Contrary to Perez’s contention, a conclusion of non-indigency is not
precluded by other orders entered in the case that depended on financial
status. Perez does not show how a magistrate judge’s analysis of preliminary
financial information, when undertaking the task of ensuring Perez’s Sixth
Amendment right to counsel, bars a later conclusion of non-indigency based on
the more revealing information about Perez’s total net worth given in the
presentence report. Neither does Perez show how it is that the non-imposition
of a fine impacts the additional special assessment decision, given that the fine
range of $50,000 to $250,000 vastly exceeds the sum of the additional special
assessments. Regarding the waiver of interest on the $450,000 restitution
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order, Perez fails to cite the applicable interest rate and to provide a dollar
amount to allow us to analyze his argument concerning the relative burdens of
interest payments and additional special assessments. See United States v.
Charles, 469 F.3d 402, 408 (5th Cir. 2006); Beasley v. McCotter, 798 F.2d 116,
118 (5th Cir. 1986).
That the presentence report referenced an incorrect offense in its
discussion of the special assessments does not mean, as Perez contends, that
it is doubtful the district court was aware of the statutory requirement of non-
indigency. District courts are “presumed to know the law and to apply it in
making their decisions.” Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled
on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). Moreover, the
presentence report correctly cited to the statute requiring that special
assessments be imposed.
Perez fails to show any error at all in the imposition of the additional
special assessments. See Teuschler, 689 F.3d 397, 400. Therefore, we do not
disturb the judgment.
AFFIRMED.
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