United States v. Hikmet Perez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-10605 ELEVENTH CIRCUIT
APRIL 1, 2008
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 06-20540-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HIKMET PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 1, 2008)
Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Hikmet Perez appeals his 60-month sentence imposed
following his guilty plea to knowingly and intentionally manufacturing and
possessing with intent to distribute 100 or more marijuana plants, in violation of
21 U.S.C. § 841(a)(1). The government has confessed error and supports
Defendant’s request that his sentence be vacated.
Two issues are raised in this appeal: whether the district court committed
reversible error when it (i) denied Defendant safety-valve relief; and (ii) denied
Defendant an additional one-point reduction for acceptance of responsibility.
Both issues are subject to plain error review because they are raised for the first
time on appeal. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.
2005). The government concedes that Defendant has satisfied all criteria for plain
error relief and supports his remand request.1
We accept the government’s concession of reversible error under the
particular facts and circumstances presented here. Accordingly, we VACATE and
REMAND for resentencing.
VACATED AND REMANDED.
1
The government supports Defendant’s remand request on both issues but also maintains that the
acceptance-of-responsibility issue is of no import. If resolution of this issue can have no sentencing
impact, a showing that the error affected substantial rights -- which is required to remedy plain error
-- is, at the very least, problematic. See United States v. Cotton, 122 S.Ct. 1781, 1786 (2002). In
the light of the government’s agreement that remand is appropriate and because the record on this
issue may benefit from further development, we accede to the parties’s request on this issue.
2