In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1448
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID PEREZ,
Defendant-Appellant
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 CR 462-6 — Rebecca R. Pallmeyer, Chief Judge.
____________________
ARGUED OCTOBER 27, 2020 — DECIDED DECEMBER 23, 2021
____________________
Before SYKES, Chief Judge, and KANNE and ST. EVE, Circuit
Judges.
SYKES, Chief Judge. David Perez was a member of the
Latin Kings street gang in Maywood, Illinois, and served in
several leadership positions in which he ordered or person-
ally carried out acts of violence, including the attempted
murder of a former gang member. He pleaded guilty to
conspiracy in violation of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d),
2 No. 19-1448
and possessing a firearm as a felon, id. § 922(g)(1). The
district judge sentenced him to concurrent terms of
336 months and 120 months in prison, respectively—below
the advisory range under the Sentencing Guidelines.
Perez challenges his sentence on two grounds. He first
argues that the judge incorrectly held that the attempted-
murder predicate for the RICO violation increased the
maximum penalty on that count to life in prison under
18 U.S.C. § 1963(a). He also contends that the judge commit-
ted a procedural error by failing to consider his argument
under 18 U.S.C. § 3553(a)(6) about the need to avoid unwar-
ranted sentencing disparities with similarly situated defend-
ants.
We affirm. The judge correctly determined that the RICO
violation was “based on” an act of racketeering that is
punishable by life imprisonment under state law—
discharging a firearm in an attempted murder—a predicate
act that raised the applicable maximum penalty from
20 years to life under § 1963(a). See United States v. Brown,
973 F.3d 667, 709 (7th Cir. 2020). The argument about unwar-
ranted sentencing disparities is both waived and meritless. It
is waived because at sentencing the judge twice asked
Perez’s counsel whether he was satisfied with the court’s
explanation of the sentence, and both times counsel failed to
mention any § 3553(a)(6) concerns. Waiver aside, a sentence
within or below a properly calculated Guidelines range
necessarily complies with § 3553(a)(6). United States v.
Sanchez, 989 F.3d 523, 540–41 (7th Cir. 2021).
No. 19-1448 3
I. Background
From 2004 to 2008, and again from 2012 to 2015, David
Perez was a member of the Latin Kings street gang operating
in the Village of Maywood just west of Chicago. The
Maywood branch of the gang was divided into two “circles,”
each with its own set of leaders—the older members or
“Junior” circle and the younger members or “Shorty” circle.
At various points during his membership, Perez held several
leadership positions, including the “Inca” of the Shorty
circle—essentially its president. See, e.g., United States v.
Porraz, 943 F.3d 1099, 1101 (7th Cir. 2019). As Inca, Perez
recruited new members, enforced dues obligations, directed
the use of armed patrols, ordered violent beatings to punish
gang members, and instructed members to commit acts of
violence.
On May 10, 2014, the Junior circle ordered the murder of
Victim 1, a runaway former gang member. Perez saw
Victim 1 at a restaurant in Melrose Park on Mother’s Day,
May 11. He alerted other gang members, who came to the
scene and shot Victim 1 multiple times in the stomach and
chest. The victim survived but suffered permanent colon
damage and requires a colostomy bag for the rest of his life.
In 2016 a federal grand jury returned an indictment
charging Perez and 14 other gang members with racketeer-
ing and other offenses related to their participation in the
Maywood Latin Kings. Perez was charged in nine counts,
including racketeering conspiracy, conspiracy to commit
murder in aid of the racketeering enterprise, attempted
murder in aid of the enterprise, assault with a dangerous
weapon in aid of the enterprise, and four counts of unlawful
possession of a firearm by a felon. He pleaded guilty to
4 No. 19-1448
racketeering conspiracy, see § 1962(d) (Count 1), and unlaw-
ful possession of a firearm by a felon, see § 922(g)(1)
(Count 16).
Perez did not admit in his plea declaration to facts sur-
rounding the attempted murder of Victim 1, but he later
stipulated that he participated in the murder—indeed, he
ordered and agreed with other gang members to carry out
the act. He further stipulated, and the district judge found,
that the facts of the attempted murder were proven beyond a
reasonable doubt.
Punishments for RICO violations are typically capped at
20 years in prison, but the maximum increases to life impris-
onment when a “violation is based on a racketeering activity
for which the maximum penalty includes life imprison-
ment.” § 1963(a). Because RICO defines “racketeering activi-
ty” as “any act … chargeable under State law,” 18 U.S.C.
§ 1961(1), the applicable statutory maximum often turns on
state law.
The parties disagreed about whether the attempted mur-
der of Victim 1 increased Perez’s statutory maximum on
Count 1 to life in prison under § 1963(a). Perez argued that
the maximum remained 20 years because under Illinois law
attempted murder carries a maximum life sentence only if
the defendant “personally discharged a firearm that proxi-
mately caused great bodily harm.” 720 ILL. COMP. STAT.
5/8-4(c)(1)(D). It’s undisputed that Perez did not personally
fire the shots at Victim 1, so he argued that the maximum
sentence could not be enhanced under § 1963(a).
The judge disagreed, reasoning that Perez faced a statu-
tory maximum of life on Count 1 because sentences for
No. 19-1448 5
RICO conspiracies do not hinge on acts committed by a
specific defendant; rather, they reflect the operation of the
criminal enterprise as a whole. That is, the attempted mur-
der of Victim 1 was a predicate racketeering act attributable
to all members of the conspiracy.
In his sentencing memorandum and again at the sentenc-
ing hearing, Perez asked the court to consider the sentences
of coconspirators Jose Pena and Ulises De La Cruz when
determining his sentence. Pena was sentenced to 96 months
on Count 1, and De La Cruz was sentenced to 210 months
for the same count.
After considering the factors set forth in § 3553(a), the
judge sentenced Perez to concurrent terms of 336 months
and 120 months on Counts 1 and 16, respectively—below the
Guidelines range of 360 months to life. The judge character-
ized Perez’s participation in the conspiracy as “shocking and
horrifying,” finding that he had engaged in “hideous, stu-
pid, [and] meaningless violence.” The judge considered the
permanent injuries to Victim 1, the culture of fear created by
the Latin Kings, and the need for general deterrence. Balanc-
ing these considerations, the judge concluded that “the
guideline range is about right in this case,” but she imposed
a sentence below that range in recognition of Perez’s “genu-
ine and heartfelt” acceptance of responsibility.
The judge twice asked Perez’s counsel if there were any
issues she had overlooked or should address. Counsel
requested his client’s placement in a particular Bureau of
Prisons facility but did not mention sentencing disparities—
either generally or with respect to coconspirators Pena and
De La Cruz in particular.
6 No. 19-1448
II. Discussion
Perez challenges the judge’s ruling regarding the statuto-
ry maximum penalty for the RICO conviction and her failure
to address his argument about unwarranted sentencing
disparities. We review claims of legal and procedural error
de novo. United States v. Durham, 766 F.3d 672, 685 (7th Cir.
2014).
A. Life Sentence Eligibility
As we’ve noted, the statutory maximum sentence for a
RICO offense is ordinarily 20 years, but the maximum
increases to life “if the violation is based on a racketeering
activity for which the maximum penalty includes life im-
prisonment.” § 1963(a). Perez reprises the argument he made
below that the enhanced maximum does not apply here
because attempted murder is punishable by life in prison
under Illinois law only when the defendant “personally
discharged a firearm that proximately caused great bodily
harm.” 730 ILL. COMP. STAT. 5/5-8-1(a)(1)(d)(iii);
§ 5/8-4(c)(1)(D). It’s undisputed that Perez ordered the killing
of Victim 1 but did not personally fire the gun. So, Perez
reasons, the statutory maximum for his RICO conspiracy
conviction remained capped at 20 years because his violation
was not “based on” a predicate act for which the maximum
penalty under state law includes life imprisonment.
This argument misunderstands the language and opera-
tion of § 1963(a). The proper inquiry is whether the RICO
“violation”—here, conspiracy—was based on a predicate
crime punishable by life imprisonment. The judge therefore
correctly framed the question and likewise correctly an-
swered it. The RICO violation was based in part on the
No. 19-1448 7
predicate racketeering act of attempted murder—that is, a
coconspirator’s attempt to kill Victim 1 by shooting him,
causing great bodily harm. Under Illinois law, that version of
attempted murder is punishable by life imprisonment.
We addressed a similar argument in United States v.
Brown, 973 F.3d 667 (7th Cir. 2020). There, the defendants
were members of a street gang and were convicted of RICO
conspiracy predicated on racketeering acts that included
multiple first-degree murders. Illinois law authorizes a
sentence of life imprisonment for first-degree murder when
certain aggravating factors are present. 730 ILL. COMP. STAT.
5/5-4.5-20(a), 5/5-8-1; 720 ILL. COMP. STAT. 5/9-1(a) & (b). Like
Perez, the defendants maintained that their maximum
sentences should have been capped at 20 years notwith-
standing these predicates. Their reasoning was slightly
different: they argued that because the RICO statute crimi-
nalizes the agreement to commit an act, not the act itself, the
relevant state analogue was conspiracy, which under Illinois
law is not punishable by life imprisonment. Brown, 973 F.3d
at 709.
We rejected the argument, explaining that “section 1963
requires that the ‘violation’—in this case, the conspiracy—be
‘based on a racketeering activity for which the maximum
penalty includes life imprisonment.’” Id. What mattered, we
said, was that “[t]he defendants’ conspiracies were all based
on murders for which the maximum penalty includes life
imprisonment.” Id.
The same conclusion follows here. Perez’s RICO viola-
tion—conspiracy—was “based on” predicate acts of racket-
eering that included a coconspirator’s attempted murder of
Victim 1 by discharging a firearm and causing great bodily
8 No. 19-1448
harm, which is a crime punishable by life in prison under
Illinois law. The judge properly applied the enhanced maxi-
mum penalty under § 1963(a).
B. Sentencing Disparities
Perez also argues that the judge procedurally erred by
failing to consider his argument under § 3553(a)(6) about the
need to avoid unwarranted disparities between similarly
situated defendants. He pointed to codefendants Pena and
De La Cruz, who were sentenced to 96 months and
210 months, respectively, for their involvement in the con-
spiracy. He argued that both codefendants were responsible
for more criminal conduct and were ranked higher than
Perez within the Latin Kings. The judge passed over this
argument, though she imposed a below-Guidelines sentence
of 336 months on the conspiracy count in recognition of
Perez’s expression of remorse. (The 120-month term on the
firearm count is concurrent.)
As an initial matter, this argument is waived. After an-
nouncing the sentence, the judge twice asked Perez’s counsel
if there were other issues she had overlooked. First, she
asked: “Are there other issues you feel I haven’t addressed or
any other recommendations you think I should make?”
Counsel raised a point about his client’s prison assignment
but did not mention sentencing disparities. After a bit more
discussion, the judge inquired again: “Are there other is-
sues?” Perez’s counsel still did not mention any sentencing
disparities. The judge thus gave counsel not one but two
meaningful opportunities to identify any overlooked argu-
ments. The failure to make use of those opportunities is a
waiver. United States v. Garcia-Segura, 717 F.3d 566, 569 (7th
Cir. 2013).
No. 19-1448 9
Even if not waived, the argument is meritless. We have
held that the Sentencing Guidelines “are themselves an anti-
disparity formula.” United States v. Blagojevich, 854 F.3d 918,
921 (7th Cir. 2017). Because the judge “correctly calculated
and carefully reviewed the Guidelines range, [she] necessari-
ly gave significant weight and consideration to the need to
avoid unwarranted disparities.” Gall v. United States,
552 U.S. 38, 54 (2007). Thus, a sentence below or within a
properly calculated Guidelines range, as this one is, “neces-
sarily complies with § 3553(a)(6).” Sanchez, 989 F.3d at 541
(emphasis added) (internal quotation marks omitted).
AFFIRMED