United States v. Perez

Case: 21-50945 Document: 00516418342 Page: 1 Date Filed: 08/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 3, 2022
No. 21-50945 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Christopher Charles Perez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 5:20-CR-283
Before Smith, Wiener, and Southwick, Circuit Judges.
Jerry E. Smith, Circuit Judge:
In April 2020, Christopher Perez made two posts on Facebook claim-
ing that he had paid a friend’s cousin, who was COVID-19 positive, to lick
everything in two San Antonio grocery stores. The posts were false, but he
was prosecuted for perpetrating a hoax biological-weapons attack. He was
convicted and sentenced to fifteen months’ imprisonment.
Perez appeals his conviction, maintaining that the biological-weapons
statute does not extend to conduct such as licking items in a grocery store and
that the terrorist-hoax statute is an unconstitutional restriction on free
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No. 21-50945
speech. He also points out an undisputed error in his sentencing calculation.
We reject Perez’s challenges to his conviction. Although the
biological-weapons statute does contain an implied exception for local crimes,
Perez’s purported conduct was serious enough to place him within the pur-
view of federal law enforcement. And threats like Perez’s are not protected
by the First Amendment.
We thus affirm the conviction. But because the district court mis-
calculated his sentence, we vacate it and remand for resentencing.
I.
On April 5, 2020, shortly after COVID-19 lockdowns had been imple-
mented throughout the United States, Perez made the following post on
Facebook, referring to two grocery stores in San Antonio:
He took the post down soon afterwards, apparently in response to a friend’s
suggestion that the post might expose Perez to criminal liability. But he later
made a second post that he left up for at least twenty-three hours:
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The headline he was responding to read “H-E-B partner tests positive for
COVID-19.”
Perez had not actually paid anyone to lick anything at H-E-B, but his
posts nonetheless set off alarm bells. An unknown member of the public
reported the first post to law enforcement. Two FBI agents were dispatched
to Perez’s house to interview him. Perez admitted making the post but said
that he had been “shit talking” and that the statements in the post were false.
He apologized for making the post and claimed that he had been motivated
by a desire to make people take stay-at-home orders more seriously.
Unmollified, the agents returned to Perez’s house the next day with
warrants. They searched the residence and arrested Perez. The FBI had also
reached out to H-E-B. The company investigated: It tasked four employees
with searching thousands of transactions to see whether two individuals
identified by the FBI had made a purchase in either store Perez had men-
tioned. The company considered closing the stores but ultimately decided
not to. There is no indication that Perez’s posts caused public panic.
Perez was indicted for two violations of 18 U.S.C. § 1038(a)(1), one for
each Facebook post. Section 1038(a)(1) criminalizes hoaxes simulating vari-
ous other crimes. Perez’s posts were alleged to simulate violations of
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18 U.S.C. § 175, the prohibition on biological weapons. At trial, the govern-
ment presented testimony to establish the above facts. The jury convicted
Perez on both counts.
The presentence investigation report (“PSR”) assigned Perez a crim-
inal history category of III, based in part on a 2006 offense that had resulted
in a sentence of deferred adjudication. The PSR recommended a sentence of
15–21 months, and Perez made no objections. The court imposed a sentence
of 15 months’ imprisonment, followed by three years of supervised release.
Perez appeals his conviction and sentence.
II.
Perez’s first challenge is a statutory one. He points to Bond v. United
States, 572 U.S. 844 (2014), which held that 18 U.S.C. § 229, the prohibition
on chemical weapons, contains an implied exception for purely local crimes.
Perez maintains that the same logic applies to § 175 and that the conduct
described in his Facebook posts would have been a purely local crime and thus
outside the reach of the statute. We accept Perez’s first premise but not his
second: Section 175 does include the same local-crime exception as does
§ 229, but the crime Perez claimed to have committed is nonetheless within
the sweep of the statute.
The defendant in Bond had used chemicals pilfered from her employer
to inflict a mild rash on a romantic rival. See 572 U.S. at 852. That conduct
appeared to constitute a violation of § 229, which prohibits the possession
and use of chemical weapons. But the Supreme Court looked beyond the
statutory text: It cited Gregory v. Ashcroft, 501 U.S. 452 (1991), for the propo-
sition that “overrid[ing] the usual constitutional balance of federal and state
powers” requires a clear statement, Bond, 572 U.S. at 858 (citation omitted).
Section 229 contained no clear statement that Congress intended the statute
to “reach purely local crimes,” so the Court held that it did not apply to the
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defendant’s conduct. Id. at 860.
The reasoning of Bond suggests that there is an implied “local crimes”
exception to § 175 as well. That statute, like § 229, lacks any clear statement
implicating purely local crimes. Section 175’s prohibitions apply to biological
weapons rather than to chemical weapons. But the clear-statement rule
articulated in Gregory and Bond is too general to depend on such a fine distinc-
tion. Bond states that “the punishment of local criminal activity” is an area
of traditional state authority. Id. at 858. That is equally true whether the local
criminal activity involves biological or chemical agents.
Other courts have reached the same conclusion. The Sixth Circuit
was most explicit: It noted that “both § 229 and § 175 originate in the Geneva
Protocol of 1925 and both are treaty-implementing statutes.” That court thus
elected to “follow the Supreme Court’s instruction and interpret § 175 in light
of federalism principles.” United States v. Levenderis, 806 F.3d 390, 397 (6th
Cir. 2015). The Second and Tenth Circuits have also performed Bond analy-
ses in § 175 cases. See United States v. Le, 902 F.3d 104, 113–14 (2d Cir. 2018);
United States v. Hale, 762 F.3d 1214, 1224–26 (10th Cir. 2014). So has the
Northern District of California. See United States v. Chamberlain, No. 14-cr-
316, 2015 U.S. Dist. LEXIS 114686, at *6–8 (N.D. Cal. Aug. 27, 2015).
The government’s main response is that chemical agents are far more
accessible than are biological agents. We are skeptical. Even if one is not
infected with a contagious virus, a biological weapon, defined literally, might
be as simple as a knife covered in bacteria. See 18 U.S.C. § 178(1) (defining
“biological agent”). And even if local crimes involve chemical agents more
often than do biological ones, that does not mean that Bond’s presumption
would not apply to biological attacks. Bond stressed that it was a “curious
case,” but the Court nonetheless applied the presumption it articulated.
572 U.S. at 860. A case involving purely local use of biological weapons might
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be even more curious, but that does not mean that the clear-statement rule
would not apply. We thus agree with Perez that § 175, like § 229, does not
apply to purely local conduct.
But that does not help Perez if, as we also conclude, the crime he
claimed to commit was not purely local. Bond did not articulate any clear test
for whether crimes are local, but it is possible to discern some relevant factors.
Among scattered dicta, the Court listed “assassination, terrorism, and acts
with the potential to cause mass suffering” as crimes that would not be impli-
citly excluded from federal law. Bond, 572 U.S. at 864. Other courts have
provided additional guideposts. Hale suggests that crimes are not local if they
could be referred to as terrorism “in natural parlance.” Hale, 762 F.3d at 1225
(quoting Bond, 572 U.S. at 861). Le implies that crimes are less likely to be
purely local if they involve the instrumentalities of interstate commerce,
including the internet. See Le, 902 F.3d at 112. Levenderis, 806 F.3d at 397,
provides perhaps the most complete standard: “[T]he question is whether
the type and intended use of the biological toxin in this case brings defen-
dant’s conduct within the common and ordinary meaning of ʻbiological
weapon.’”
It is not necessary to draw any bright lines in this case because Perez’s
purported conduct was well within the federal purview. Perez made two pub-
lic posts on the internet. He claimed to have paid someone to spread COVID-
19—then widely understood as a dangerous virus—over “every thing” in two
grocery stores. The odds that someone would have died from exposure to
Perez’s friend’s cousin’s saliva at either H-E-B store would have been low,
but not zero. Surface exposure is not impossible, and performing the attack
would have required an infected individual to be in the stores and unmasked.
Someone might have eaten a licked item without thoroughly washing it. And
even if no one directly exposed died, that person could still have gotten sick
and passed the disease onto others.
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Perez points out that COVID-19 has a low death rate and is not easily
transmitted through contact with surfaces. He thus suggests that licking
items in grocery stores would have produced few casualties. But even if Perez
knew that his purported scheme was less dangerous than it might have been,
the caselaw does not suggest that the threshold to raise a crime above the local
level is high. The defendant in Hale sent one person an envelope that he
implied contained hantavirus. Hale, 762 F.3d at 1219. Hantavirus has a
fatality rate of about 50%, and the circumstances made it unlikely that anyone
would have opened the envelope, see id., suggesting that that crime would
most likely have killed no one. Perez also cites United States v. Kimber,
777 F.3d 553, 557 (2d Cir. 2015), in which the defendant actually did spread
mercury in a hospital but successfully poisoned no one. Perez concedes that
those cases are severe enough not to be purely local, yet his purported con-
duct was no less serious.
If the act had actually been carried out, it could easily have created an
outbreak of COVID-19 that could have been hard to contain. The resulting
panic could also have been severe. Thus, Perez used an instrumentality of
interstate commerce, he claimed to have used a deadly virus and spread it
widely, and his act would have had the potential to cause mass suffering. We
need not conclude that any of those factors, taken alone, is either necessary
or sufficient; we hold only that, taken together, they elevate Perez’s claimed
crimes above the purely local level. Perez’s purported scheme was not purely
local, so it would have been covered by § 175. His statutory challenge fails.
III.
Perez’s next challenge is constitutional. He maintains that
§ 1038(a)(1), which bans hoax violations of § 175, § 229, and several other
statutes, violates the First Amendment’s guarantee of freedom of speech. He
presents both as-applied and facial challenges. In accordance with circuit
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practice, see, e.g., Roy v. City of Monroe, 950 F.3d 245, 251 (5th Cir. 2020), we
turn to his as-applied challenge first. But we reject both challenges.
The distinction between as-applied and facial challenges is sometimes
hazy. See Citizens United v. FEC, 558 U.S. 310, 331 (2010). But for purposes
of this case, it is sufficient to observe that success on his as-applied challenge
would require Perez to show that the application of § 1038(a)(1) to his
Facebook posts impermissibly infringed his right to free speech. See Ohralik
v. Ohio State Bar Ass’n, 436 U.S. 447, 462 (1978).
We conclude that Perez cannot make that showing because his posts
were not protected speech. Since its enactment, “the First Amendment has
permitted restrictions upon the content of speech in a few limited areas.”
United States v. Stevens, 559 U.S. 460, 468 (2010) (quotation omitted). One
of those areas is true threats 1—“those statements where the speaker means
to communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.” Virginia v. Black,
538 U.S. 343, 359 (2003). “The speaker need not actually intend to carry out
the threat.” Id. at 359–60.
That description closely tracks Perez’s conduct. Both Facebook posts
evinced an intent to spread COVID-19 at a second grocery store in addition
to the one already targeted. Thus, even assuming that true threats must
describe future conduct, cf. United States v. Reynolds, 381 F.3d 404, 406 (5th
1
Another is “speech presenting some grave and imminent threat the government
has the power to prevent,” although “a restriction under [that] category is most difficult to
sustain.” United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opinion). The Ninth
Circuit pointed to that exception to conclude that speech targeted by § 1038(a)(1) is not
protected. See United States v. Keyser, 704 F.3d 631, 640 (9th Cir. 2012). Even though we
ground our analysis in the more developed doctrine of true threats, we do not reject the
possibility that Perez’s speech was also unprotected for the reasons identified by the Ninth
Circuit.
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Cir. 2004) (concluding in a different context that threats may refer to past
conduct), Perez’s posts qualify.
And Perez’s expression, though false, was “serious.” Black, 538 U.S.
at 359. Perez insists that he was not merely joking but rather trying to per-
suade people to observe stay-at-home orders. But whatever his true inten-
tion, his conviction under § 1038(a)(1) means a jury found that his posts “may
reasonably [have been] believed.” That is enough to show that the posts
“would have a reasonable tendency to create apprehension that [their] origin-
ator will act according to [their] tenor.” United States v. Morales, 272 F.3d 284,
287 (5th Cir. 2001) (quotation omitted).
Neither is Perez saved by the fact that his posts did not name “a par-
ticular individual or group of individuals.” Black, 538 U.S. at 359. The posts
described actions that would have placed employees and potential shoppers
at two grocery stores at risk. He did not explicitly refer to those groups of
individuals, but the definition of true threats, though narrow, cannot depend
on so technical a distinction. True threats are unprotected because they have
relatively low value and because restricting them “protect[s] individuals from
the fear of violence, from the disruption that fear engenders, and from the
possibility that the threatened violence will occur.” R.A.V. v. City of St. Paul,
505 U.S. 377, 388 (1992). None of those factors turns on whether a speaker
names individuals or merely places them where those individuals are likely to
be. Thus, Perez’s posts were unprotected true threats, so applying
§ 1038(a)(1) to him did not violate his right to free speech.
We turn next to Perez’s theory that the statute is facially invalid be-
cause of its overbreadth. 2 Success on that challenge would require Perez to
2
Perez brings two facial challenges: In addition to his overbreadth challenge, he
brings a “typical facial attack,” which requires that “no set of circumstances exists under
which [the statute] would be valid.” Stevens, 559 U.S. at 472 (quotation omitted). Because
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show that “a substantial number of [§ 1038(a)(1)’s] applications are unconsti-
tutional, judged in relation to the statute’s plainly legitimate sweep.” Stevens,
559 U.S. at 473 (quotation omitted). Facial challenges are disfavored, Roy,
950 F.3d at 251, and the Supreme Court has “vigorously enforced the require-
ment that a statute’s overbreadth be substantial, not only in an absolute sense,
but also relative to the statute’s plainly legitimate sweep,” United States v.
Williams, 553 U.S. 285, 292 (2008).
“The first step in overbreadth analysis is to construe the challenged
statute; it is impossible to determine whether a statute reaches too far without
first knowing what the statute covers.” Id. at 293. Section 1038(a)(1) makes
it illegal to “engage[] in any conduct with intent to convey false or misleading
information under circumstances where such information may reasonably be
believed and where such information indicates” that a violation of one of sev-
eral statutes “has taken, is taking, or will take place.” The listed statutes
include § 175, § 229, and various others, including those prohibiting attacks
on nuclear power plants and the use of explosives. Although the “any con-
duct” language is undeniably broad, the statute’s scope is limited by the
requirements that the violator act “with intent to convey false or misleading
information” and do so “under circumstances where such information may
reasonably be believed.”
The statute covers much unprotected speech, like the true threats
expressed by Perez in this case. 3 And much of the conduct it covers, such as
we have already concluded that the statute’s application is valid under the circumstances
of this case, separate analysis of Perez’s first facial challenge would be redundant.
3
Even insofar as the statute extends to protected speech, it could still be constitu-
tional if it survives appropriate scrutiny. The Supreme Court has not been entirely clear on
the degree of scrutiny to which prohibitions on false speech must be subjected. Compare,
Alvarez, 567 U.S. at 724 (plurality opinion) (applying strict scrutiny), with id. at 730–31
(Breyer, J., concurring in the judgment) (applying intermediate scrutiny). And once the
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hoax terrorist attacks, imposes obvious and significant social harms like panic
and waste of investigative resources.
Against that plainly legitimate sweep, Perez posits various examples of
supposedly protected speech that would also be prohibited, but they are not
convincing. For instance, Perez avers that lying about being home sick or
inadvertently spreading misinformation about a disease would both be techni-
cal violations of § 1038(a)(1). But being sick at home would not violate § 175.
We now have construed that statute not to extend to purely local conduct,
and so the lie would not violate § 1038(a)(1). As for mistakenly spreading
false information, that would not involve the level of intent required by the
statute. Perez also worries that mockumentary fiction, such as The Blair
Witch Project, would run afoul of the statute. But presenting mockumentaries
as such would not meet the “circumstances where such information may rea-
sonably be believed” requirement for liability. 4
Perez thus fails to identify sufficient overbreadth to sustain his facial
challenge to § 1038(a)(1). We do not rule out the possibility that some appli-
cations might be impermissible, but we reject his position that the statute,
either as applied to him or facially, violates the First Amendment.
IV.
Having rejected Perez’s challenges to his conviction, we turn to his
correct standard is determined, applying it is not always straightforward. See Willey v.
Harris Cnty. Dist. Att’y, 27 F.4th 1125, 1131 (5th Cir. 2022). But we do not confront those
difficulties in this case because we conclude that the statute’s applications to protected
speech, whether constitutional or not, are not substantial enough in relation to the plainly
legitimate sweep to sustain an overbreadth challenge.
4
Cf. Alvarez, 567 U.S. at 722 (plurality opinion) (opining that “[i]t can be assumed”
that the Stolen Valor Act would not apply to a theatrical performance, despite the statutory
language).
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sentence. Perez failed to object at sentencing, but the government concedes
that he has shown plain error. The court is not obligated to accept a party’s
concession, see, e.g., United States v. Gomez Gomez, 23 F.4th 575, 577 (5th Cir.
2022) (per curiam), but we do so in this case and conclude that Perez’s sen-
tence must be vacated.
To prevail on plain-error review, Perez must make three showings:
(1) there is an unrelinquished error, (2) the error is clear or obvious, and
(3) the error affected his substantial rights. Rosales-Mireles v. United States,
138 S. Ct. 1897, 1904–05 (2018). Even then, he may succeed only if this court
determines that the error implicates the fairness, integrity, or reputation of
judicial proceedings. Ibid. That is a difficult showing, but Perez has made it.
In calculating Perez’s criminal history, the PSR added two points for a
2007 sentence to six years’ deferred adjudication for possession of a con-
trolled substance. That addition was error. Per the guidelines, a sentence of
less than one year and one month of imprisonment does not count if it was
imposed more than ten years before the instant offense. U.S.S.G.
§ 4A1.2(e)(2), (k)(2)(C). Without those two points, Perez’s guideline range
would have been 12–18 months instead of 15–21. See U.S. SENTENCING
COMM’N, GUIDELINES MANUAL 2021, at 407 (2021).
Although the error was subtle enough that no one noticed it, this court
has previously held a substantially identical mistake to be plain error. See
United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir. 2006). Perez’s sen-
tence, fifteen months, turns out to have been within the correct guideline
range. But “[w]hen a defendant is sentenced under an incorrect Guidelines
range—whether or not the defendant’s ultimate sentence falls within the
correct range—the error itself can, and most often will, be sufficient to show
a reasonable probability of a different outcome absent the error.” Molina-
Martinez v. United States, 578 U.S. 189, 198 (2016). There is no reason why
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that general rule would not apply to this case. Perez has shown plain error.
As for the fourth element, a miscalculation of sentencing guidelines
that meets the first three elements “will in the ordinary case . . . seriously
affect the fairness, integrity, or public reputation of judicial proceedings.”
Rosales-Mireles, 138 S. Ct. at 1903. This case presents no “countervailing fac-
tors” that might make it an exception to that rule. Id. at 1910. So we will
exercise our discretion to correct the error.
The conviction is AFFIRMED, and the sentence is VACATED and
REMANDED for resentencing.
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