United States v. Perez ( 2020 )

Case: 18-40707 Document: 00515689065 Page: 1 Date Filed: 12/30/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 18-40707 December 30, 2020
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Marq Vincent Perez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC 6:17-CR-35-1
Before Haynes, Higginson, and Oldham, Circuit Judges.
Per Curiam:*
Marq Vincent Perez appeals his conviction and sentence. For the
reasons set forth below, we AFFIRM.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 18-40707 Document: 00515689065 Page: 2 Date Filed: 12/30/2020
No. 18-40707
I. Background
Based on his supposed belief that the Victoria Islamic Center (the
“VIC”) stored weapons, Perez broke into the mosque with a juvenile at night
to look for these weapons on two separate occasions. Finding none either
time, Perez nonetheless stole some items the first time and proceeded to burn
down the VIC the second time by using a lighter to set fire to papers inside.
A federal grand jury charged Perez with intentionally defacing,
damaging, and destroying religious real property because of its religious
character through the use of fire, in violation of 18 U.S.C. § 247(a)(1),
(“Count 1”) and with knowingly using a fire and explosive to commit a
violation of § 247(a)(1), in violation of 18 U.S.C. § 844(h), (“Count 2”).
Additionally, he was indicted on a third count of possessing an unregistered
destructive device (“Count 3”). 1 For Count 1, the district court instructed
the jury that it must find that the Government proved each of the following
elements beyond a reasonable doubt: that Perez (1) “intentionally defaced,
damaged or destroyed religious real property”; and (2) “did so because of
the religious character of the property”; and that the offense (3) “was in or
affected interstate or foreign commerce”; and (4) “included the use,
attempted use, or threatened use of a dangerous weapon, explosive, or fire.”
Based on this fourth element, the jury was required to determine whether the
Government proved beyond a reasonable doubt that Perez committed
§ 247’s punishment-enhancing conduct, as set forth in § 247(d)(3). 2 As to
1
Count 3 was based upon a violation of 26 U.S.C. §§ 5841, 5845, 5861(d), and 5871.
He was also charged with being aided, abetted, and assisted by others, in violation of 18
U.S.C. § 2, on all three counts. The aiding and abetting allegations are not at issue on
appeal.
2
This section provides that the punishment for a § 247(a)(1) offense shall be “a
fine . . . and imprisonment for not more than 20 years, or both” if the defendant’s conduct
in committing a § 247(a)(1) offense “include[s] the use, attempted use, or threatened use
2
Case: 18-40707 Document: 00515689065 Page: 3 Date Filed: 12/30/2020
No. 18-40707
Count 2, the district court instructed the jury that it must find that the
Government proved beyond a reasonable doubt that “the defendant
knowingly used fire or an explosive to commit the act charged in Count
One.” The jury convicted Perez on all three counts.
The presentence investigation report (“PSR”) recommended a base
offense level of 24 for Count 1, determining that the underlying offense for
Count 1 was federal arson and that the applicable Sentencing Guideline for
arson, § 2K1.4, was appropriate. Under the grouping rules, it was grouped
with Count 3 for a combined offense level of 34. As for Count 2, the PSR
noted that a § 844(h) violation has a mandatory ten-year sentence that must
run consecutively to Count 1. Perez objected to the PSR’s recommended
sentence to Counts 1 and 2; he argued that § 2K1.4 did not apply for Count 1
and that punishment for Count 2 violated the Double Jeopardy Clause of the
Fifth Amendment because Counts 1 and 2 were premised on the same
underlying offense of setting fire to the VIC. The district court rejected
Perez’s objections and imposed a sentence within the PSR’s calculated
Sentencing Guidelines range. Perez timely appealed.
II. Discussion
Three issues are on appeal: (1) whether Perez’s indictment and
sentence for Counts 1 and 2 violate the Double Jeopardy Clause’s
multiplicity doctrine, (2) whether the application of § 2K1.4 of the
Sentencing Guidelines on Count 1 was error, and (3) whether Count 2’s
mandatory ten-year sentence in conjunction with the sentence assessed for
Count 1 violates the Double Jeopardy Clause’s prohibition on double
counting. We address each issue below.
of a dangerous weapon, explosives, or fire” or if the conduct resulted in “bodily injury to
any person.”
3
Case: 18-40707 Document: 00515689065 Page: 4 Date Filed: 12/30/2020
No. 18-40707
A. Double Jeopardy Clause’s Multiplicity Doctrine
Perez argues that Count 1’s punishment enhancement, § 247(d)(3),
and Count 2, the § 844(h) offense, constitute the same offense. He thus
claims that the indictment was defective and that the district court erred in
punishing him on both counts. We disagree and hold that § 247(d)(3) and
§ 844(h) are distinct offenses. 3
Under the Double Jeopardy Clause of the Fifth Amendment, the
Government may not charge “a single offense in several counts” and a court
may not impose “multiple punishments for the same act.” United States v.
Barton, 879 F.3d 595, 599 (5th Cir.), cert. denied, 139 S. Ct. 167 (2018). To
determine whether a defendant has been punished multiple times for the
same offense, we first consider whether “Congress has authorized the result
at issue.” United States v. Smith, 354 F.3d 390, 398 (5th Cir. 2003). “If
Congress has enacted statutes that separately punish the same conduct, there
is no double jeopardy violation.” Id. If that inquiry is “inconclusive,” then
we must examine the text of the statute to “determine whether conviction
under each statutory provision requires proof of an additional fact which the
other does not.” Id. (internal quotation marks and citation omitted); see also
Blockburger v. United States, 284 U.S. 299, 303–04 (1932).
The text of § 844(h) indicates that Congress authorized the result in
this case. That statutory provision imposes a mandatory ten-year sentence
in cases where the defendant uses “fire or an explosive to commit any
3
Perez did not preserve his challenge to the indictment but did preserve his
challenge to the district court’s punishment. Thus, our review is for plain error and de
novo, respectively. See United States v. Vasquez, 899 F.3d 363, 380 (5th Cir. 2018), cert.
denied, 139 S. Ct. 1543 (mem.) (2019); United States v. Severns, 559 F.3d 274, 282 (5th Cir.
2009). Because Perez cannot prevail under the less demanding de novo standard, we apply
that standard for both challenges.
4
Case: 18-40707 Document: 00515689065 Page: 5 Date Filed: 12/30/2020
No. 18-40707
[federal] felony” and states that the term of imprisonment prescribed by
§ 844(h) may not run concurrently with the term of imprisonment imposed
for the underlying felony. 18 U.S.C. § 844(h). The subsection further
specifies that it applies even when the underlying felony “provides for an
enhanced punishment if committed by the use of a deadly or dangerous
weapon or device.” Id. Congress thus clearly intended for the enhanced
sentence under § 844(h) to be imposed cumulatively with an underlying
felony sentence such as that prescribed by § 247(d)(3). See United States v.
Grassie, 237 F.3d 1199, 1215-16 (10th Cir. 2001) (holding that Congress
intended for cumulative punishments to be imposed under § 247(d)(3) and
§ 844(h)(1)).
Even assuming arguendo that our inquiry into this question was
inconclusive, our review of the statutory texts leads us to reject Perez’s
Double-Jeopardy argument under Blockburger. Blockburger, 284 U.S. at 303–
04. Our court’s “Blockburger inquiry focuses on the statutory elements of
the offenses, not on their application to the facts of the specific case before
the court.” United States v. Severns, 559 F.3d 274, 286–87 (5th Cir. 2009)
(internal quotation marks and citation omitted). Under this framework,
§§ 247(d)(3) and 844(h) each contain an element the other does not. Section
247(d)(3) requires the defendant to either (1) use a dangerous weapon, fire,
or explosives or (2) cause bodily injury to a person; it thereby does not require
the use of fire or explosives while damaging religious property. Section
844(h), however, does require the use of fire or explosives to commit a felony
but does not require a defendant to damage religious property.
Accordingly, we hold that there was no violation of the Double
Jeopardy Clause in charging and punishing Perez for Counts 1 and 2.
5
Case: 18-40707 Document: 00515689065 Page: 6 Date Filed: 12/30/2020
No. 18-40707
B. Section 2K1.4 of the Sentencing Guidelines
Perez next argues that the district court erred in applying Guideline
§ 2K1.4 to his Count 1 conviction.
A § 247(a)(1) offense is subject to § 2H1.1 of the Sentencing
Guidelines. Under § 2H1.1(a)(1), the base offense level is determined by
“the offense level from the offense guideline applicable to any underlying
offense.” This means that an applicable offense guideline may be used for
“any conduct established by the offense of conviction that constitutes an
offense under federal . . . law.” U.S. Sent’g Guidelines Manual
§ 2H1.1 cmt. n.1 (U.S. Sent’g Comm’n 2018). Indeed, note 1 to § 2H1.1
of the Sentencing Guidelines states that “conduct set forth in the count of
conviction may constitute more than one underlying offense.” In such
situations, the underlying offenses encompassed within the count of
conviction should be determined “as if the defendant had been charged with
a conspiracy to commit multiple offenses,” following the procedure set forth
in note 4 of Guideline § 1B1.2. Id. Note 4 to § 1B1.2 then states that when
the jury verdict or plea “does not establish which offense(s) was the object of
the conspiracy,” the question becomes whether the trial court, “sitting as a
trier of fact, would convict the defendant of conspiring to commit that object
offense.” Therefore, if a verdict does not establish the underlying offense,
evidence presented at trial may be considered. See United States v. Lucas, 157
F.3d 998, 1002 (5th Cir. 1998) (holding that the defendant’s factual
stipulations established the underlying offense and that, alternatively, the
“evidence also demonstrate[d]” that the defendant engaged in conduct
within the meaning of the underlying offense).
Here, the PSR identified the underlying offense as arson, a violation
of § 844(i), which has Guideline § 2K1.4 as the applicable offense guideline.
The elements of arson are as follows: the defendant “(1) maliciously
6
Case: 18-40707 Document: 00515689065 Page: 7 Date Filed: 12/30/2020
No. 18-40707
damaged or destroyed a building or personal property, (2) by means of fire,
and (3) the building or personal property was being used in activity affecting
interstate commerce.” Severns, 559 F.3d at 289 (quotation omitted). Perez
contends that the application of Guideline § 2K1.4 was error because the
underlying offense was not arson under § 844(i). Specifically, he maintains
that his § 247(a)(1) conviction fails to meet the “malicious” and “by means
of fire” elements for arson. This argument differs from the argument he
presented in district court, so we review for plain error (although he would
fail under a less-deferential standard as well). See United States v. Medina-
Anicacio, 325 F.3d 638, 643 (5th Cir. 2003).
For purposes of applying the sentencing guidelines (as opposed to
statutory minimums and maximums), the district court could and did
consider the evidence presented at trial. See United States v. Stanford, 805
F.3d 557, 570 (5th Cir. 2015). That evidence showed that Perez did
maliciously destroy the VIC by means of fire, even if he was not convicted by
the jury of arson; it demonstrated without any doubt that Perez committed
the crime with anti-Muslim animus, he lit a fire inside the VIC “to send a
message,” and that fire destroyed the mosque. Indeed, the district court, in
adopting the PSR, found that Perez’s conduct satisfied the elements for
arson. We thus conclude that, for sentencing purposes, the evidence
supported the district court’s application of Guideline § 2K1.4 to Perez’s
Count 1 conviction, such that there was no clear error. 4
4
We note that this holding does not contradict our multiplicity holding above. The
multiplicity issue concerned whether §§ 247(d)(3) and 844(h) constituted the same
offense. On that issue, we hold that § 247(d)(3) and § 844(i) contained distinct elements,
were different offenses, and that no multiplicity issue existed. Here, we are concerned with
sentencing for a § 247(a)(1) conviction, and we consider whether Perez’s conduct that gave
rise to his § 247(a)(1) conviction would also satisfy the elements for arson, a violation under
§ 844(i), such that Guideline § 2K1.4 would apply. The Double Jeopardy Clause precludes
multiple punishment “for the same offense,” not for the “same conduct.” United States
7
Case: 18-40707 Document: 00515689065 Page: 8 Date Filed: 12/30/2020
No. 18-40707
C. Double Counting
Finally, Perez argues that the district court’s application of Guideline
§ 2K1.4 for the § 247(a)(1) offense in addition to the ten-year mandatory
consecutive sentence for the § 844(h) offense violates the Double Jeopardy
Clause’s prohibition on double counting. We review this properly preserved
challenge de novo with respect to the application of the Sentencing
Guidelines and for clear error with respect to the district court’s factual
findings. United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997).
There is no unlawful double counting when the particular Sentencing
Guideline applied does not expressly forbid double counting. United States
v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Here, there is no express
prohibition on double counting under Guideline § 2K1.4, nor Guideline
§ 2K2.4 (the applicable offense guideline for a violation of § 844(h)). We
thus hold that no impermissible double counting occurred.
III. Conclusion
For the foregoing reasons, we AFFIRM Perez’s convictions and
sentence.
v. Cruce, 21 F.3d 70, 75 (5th Cir. 1994) (internal quotation marks omitted). As such,
“consideration of other crimes at sentencing does not implicate the Double Jeopardy
Clause because the defendant is not actually being punished for the crimes so considered.”
Sekou v. Blackburn, 796 F.2d 108, 112 (5th Cir. 1986).
8