NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0424n.06
No. 15-3527
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 28, 2016
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
MOISES PEREZ, ) OHIO
)
Defendant-Appellant. )
)
)
BEFORE: GILMAN, WHITE, and STRANCH, Circuit Judges.
PER CURIAM. Moises Perez challenges his 210-month sentence imposed pursuant to
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), arguing that his Ohio conviction
for attempted intimidation is not a proper ACCA predicate.
Perez pleaded guilty without a plea agreement to possession of firearms and ammunition
by a felon, in violation of 18 U.S.C. § 922(g)(1). (RE 1, Page ID ## 1-2; 1/27/15 Minutes of
Proceedings). The presentence report designated Perez as an armed career criminal pursuant to
the ACCA, identifying the following prior convictions as predicate offenses: (1) a 1987 New
York conviction for robbery, (2) a 2005 Ohio conviction for attempted intimidation, (3) a 2005
Ohio conviction for attempted felonious assault, and (4) 2011 Ohio convictions for burglary and
attempted felonious assault. (RE 22, Page ID ## 86, 90-91, 94). The presentence report
calculated a guidelines range of 180 to 210 months of imprisonment based on a total offense
No. 15-3527
United States v. Perez
level of 30, a criminal history category of VI, and the ACCA’s 15-year mandatory minimum
sentence. (Id. Page ID # 99). Perez objected to the use of his convictions for robbery and
attempted intimidation as predicate offenses under the ACCA, and the district court overruled
Perez’s objections.1 (RE 25, Page ID ## 119-21; RE 37, Page ID ## 218-22). The district court
sentenced Perez to 210 months of imprisonment based on two factors: (1) his trafficking of
firearms, rather than mere possession, and (2) his lengthy criminal history, which established a
criminal-history category of VI even without the armed-career-criminal designation. (RE 30,
Page ID # 183; RE 37, Page ID ## 237-39).
The ACCA requires a mandatory minimum sentence of 15 years for a defendant
convicted of violating 18 U.S.C. § 922(g) who has three prior convictions for violent felonies or
serious drug offenses. 18 U.S.C. § 924(e)(1). On appeal, Perez contends that his conviction for
attempted intimidation does not constitute a violent felony under the ACCA, but concedes that
three other convictions trigger application of the ACCA’s sentencing enhancement. (Appellant’s
Br. 10). Because the ACCA requires only three predicate offenses, we need not address whether
Perez’s conviction for attempted intimidation constitutes a violent felony. See United States v.
Bailey, 634 F. App’x 473, 477 (6th Cir. 2015) (declining to consider the defendant’s “alternative
arguments about whether his other convictions qualify as violent felonies” where the district
court properly found that three prior convictions constituted violent felonies). Perez argues that
if his conviction for attempted intimidation does not qualify as a violent felony, he is entitled to a
new sentencing hearing because the district court would be considering a defendant with three
rather than four predicate offenses under the ACCA. However, the record demonstrates that the
district court based Perez’s sentence on his overall criminal history rather than the number of
1
Perez challenges only the attempted intimidation conviction on appeal. He agrees that the
robbery conviction constitutes a predicate offense.
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No. 15-3527
United States v. Perez
predicate offenses under the ACCA, and the district court’s imposition of a within-guidelines
sentence on that basis was not an abuse of discretion. See Gall v. United States, 552 U.S. 38, 41,
52–53 (2007). (RE 37, Page ID ## 238-39).
Accordingly, we AFFIRM Perez’s sentence.
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