United States v. Perez

20-1982-cr
United States v. Perez

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
5th day of May, two thousand twenty-two.

Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 20-1982-cr

EUGENIO PEREZ,

Defendant-Appellant.
_____________________________________

For Appellee: VICTOR A. ZAPANA, JR., Assistant United States
Attorney (Jo Ann M. Navickas, Assistant United States
Attorney, on the brief), for Breon Peace, United States
Attorney for the Eastern District of New York,
Brooklyn, New York.

For Defendant-Appellant: JOHN S. WALLENSTEIN, Law Office of John S.
Wallenstein, Garden City, New York.

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 Appeal from a judgment of the United States District Court for the Eastern District of New

York (Matsumoto, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED in part, and the case is

REMANDED for further proceedings consistent with this order.

Defendant-Appellant Eugenio Perez (“Perez”) appeals from the June 17, 2020 amended

judgment of the United States District Court for the Eastern District of New York (Matsumoto,

J.), sentencing him to 25 years in prison and 10 years of supervised release and imposing a $20,000

fine and $2,150 special assessment. The judgment followed a trial in which the jury found Perez,

a former Federal Bureau of Prisons official, guilty of six counts of deprivation of civil rights in

violation of 18 U.S.C. § 242, four counts of aggravated sexual abuse in violation of 18 U.S.C.

§ 2241(a), five counts of sexual abuse in violation of 18 U.S.C. § 2242(1), six counts of sexual

abuse of a ward in violation of 18 U.S.C. § 2243(b), one count of attempted sexual abuse of a ward

in violation of 18 U.S.C. § 2243(b), and one count of abusive sexual contact in violation of 18

U.S.C. § 2244(a)(4). The offense conduct involved the sexual abuse of inmates under Perez’s

custody in his role as a lieutenant at a federal detention center. On appeal, Perez challenges both

an evidentiary ruling of the district court and his sentence, arguing that this Court should vacate

his conviction and order a new trial or, alternatively, vacate his sentence and remand the case for

resentencing. For the following reasons, we AFFIRM all aspects of the judgment below except

for the fine, which we REMAND with the direction that (1) the parties supplement the record with

respect to Perez’s ability to pay the fine imposed and (2) the district court reconsider the fine. We

otherwise assume the parties’ familiarity with the underlying facts, the procedural history of the

case, and the issues on appeal.

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 I. Cross-Examination of Victim Witnesses

Perez argues that the district court’s preclusion of the cross-examination of certain victim

witnesses about their sexual contacts with other Bureau of Prisons officials violated his

constitutional rights under the Fifth and Sixth Amendments. He asserts that such evidence could

have negated the force-related elements of the charges against him and created reasonable doubt

in the jurors’ minds about the truthfulness of the victim witnesses’ allegations. We disagree.

“We review evidentiary rulings, including a trial court’s decision to limit the scope of

cross-examination, for abuse of discretion.” United States v. Sampson, 898 F.3d 287, 308 (2d

Cir. 2018) (quoting United States v. White, 692 F.3d 235, 244 (2d Cir. 2012)). Yet “we review

interpretations of law de novo, including whether an evidentiary ruling violates a defendant’s

constitutional rights.” United States v. Rivera, 799 F.3d 180, 184 (2d Cir. 2015). Federal Rule

of Evidence 412 forbids the admission of evidence “in a civil or criminal proceeding involving

alleged sexual misconduct” that is offered to prove that a “victim engaged in other sexual

behavior” or that a victim has a “sexual predisposition.” Fed. R. Evid. 412(a). Rule 412

provides for certain exceptions in criminal cases, including for the admission of “evidence whose

exclusion would violate the defendant’s constitutional rights.” Fed. R. Evid. 412(b)(1)(C).

“The constitutional rights contemplated by this exception include . . . a meaningful opportunity to

present a complete defense at trial, and to confront witnesses, including by impeaching the

credibility of a prosecution witness by cross-examination.” Rivera, 799 F.3d at 184–85 (internal

quotation marks, citations, and brackets omitted).

Provisions such as Rule 412 not only “serve the broad purpose of protecting the victims of

rape from harassment and embarrassment in court,” but also “reinforce the trial judge’s traditional

power to keep inflammatory and distracting evidence from the jury.” Agard v. Portuondo, 117

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F.3d 696, 703 (2d Cir. 1997), rev’d on other grounds, 529 U.S. 61 (2000). Thus, we found no

error in a trial court’s limitation of cross-examination of an alleged victim about her sexual history

in part because the inquiry “carried a risk of distracting and prejudicing the jury.” Id. Likewise,

we upheld the exclusion of evidence of alleged victims’ prior commercial sex work because the

evidence was “irrelevant” to the allegation that they “were coerced into working as prostitutes.”

Rivera, 799 F.3d at 185. We stressed that the “very purpose” of Rule 412 “is to preclude

defendants from arguing that because the victim previously consented to have sex — for love or

money — her claims of coercion should not be believed.” Id. Noting that the defendants

nonetheless “effectively cross-examined the victims” and elicited testimony “suggesting consent,”

we held that the exclusion of the evidence “did not prejudice” the defendants. Id. at 186.

We reject Perez’s contention that the district court’s evidentiary ruling violated his

constitutional rights, warranting reversal, and conclude instead that the district court acted within

its discretion to exclude evidence regarding the victim witnesses’ sexual contacts with other

Bureau of Prisons officials. 1 As the district court found, evidence of the victim witnesses’ sexual

contacts with other officials was irrelevant to the charges against Perez and therefore did not

implicate his right to present a complete defense. Perez essentially argues that, because the

victim witnesses engaged in sexual contacts with other officials, their allegations against him

“should not be believed” — the exact type of argument that we have held is “preclude[d]” by Rule

412. Id. at 185. Moreover, Perez had other opportunities to impeach the victim witnesses,

suggesting that the limitation of his questioning did not prejudice his right to confront the witnesses

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Perez did not indicate on the docket that he gave the victim witnesses notice of his motion to
admit evidence under an exception of Rule 412, thus rendering his motion procedurally improper.
See Rule 412(c)(1). Still, because the district court nonetheless considered his motion on the
merits, we do the same on appeal.

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against him. Finally, the excluded evidence certainly “carried a risk of distracting and

prejudicing the jury.” Agard, 117 F.3d at 703. Thus, the district court acted within its “wide

latitude” to “impose reasonable limits on . . . cross-examination,” Fuller v. Gorczyk, 273 F.3d 212,

219 (2d Cir. 2001) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)), and we affirm

its evidentiary ruling.

II. Imposition of Prison Sentence and Fine

Perez next challenges his sentence on substantive and procedural grounds. We “review

sentences ‘under a deferential abuse-of-discretion standard.’” Sampson, 898 F.3d at 311 (quoting

United States v. Young, 811 F.3d 592, 598 (2d Cir. 2016)). We find substantive error “only in

exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible

decisions.’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United

States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). We find procedural error where, inter alia,

the district court “makes a mistake in its Guidelines calculation,” “does not consider the [18

U.S.C.] § 3553(a) factors,” or “fails adequately to explain its chosen sentence.” Id. at 190. “If

we ‘identify procedural error in a sentence, but the record indicates clearly that the district court

would have imposed the same sentence in any event, the error may be deemed harmless, avoiding

the need to vacate the sentence and to remand the case for resentencing.’” United States v. Kent,

821 F.3d 362, 367–68 (2d Cir. 2016) (quoting United States v. Mandell, 752 F.3d 544, 553 (2d

Cir. 2014) (per curiam)).

1. Sentencing Guidelines Enhancements

Perez first takes issue with the district court’s application of two Sentencing Guidelines

enhancements: (1) a 4-level enhancement pursuant to U.S.S.G. § 2A3.1(b)(1) (“the use-of-force

enhancement”) and (2) a 2-level enhancement pursuant to U.S.S.G. § 3A1.1(b)(1) (“the

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vulnerable-victim enhancement”). 2 Turning first to the use-of-force enhancement, Perez argues

that the district court erred in applying the enhancement with respect to the four counts of

aggravated sexual abuse in violation of 18 U.S.C. § 2241(a). He contends that because the

aggravated sexual abuse counts include the use of force or threat of the use of force as an element

of the offense, the base offense level for those counts already accounts for the use of force in those

crimes, rendering the use-of-force enhancement “duplicative.” Appellant’s Br. at 22. We

disagree.

“The district court’s interpretation and application of the Sentencing Guidelines is a

question of law, which we review de novo.” Kent, 821 F.3d at 368. The Guidelines Statutory

Index lists § 2A3.1 as the only applicable provision for violations of 18 U.S.C. § 2241. See

U.S.S.G. App. A. Section 2A3.1 establishes a base offense level of 30 for counts of conviction

for aggravated sexual abuse under 18 U.S.C. § 2241, except for those under 18 U.S.C. § 2241(c),

and provides for the imposition of the use-of-force enhancement if the offense “involved conduct

described in 18 U.S.C. § 2241(a).” U.S.S.G. § 2A3.1(a)(2), (b)(1). Accordingly, since § 2A3.1

was the only applicable provision for the aggravated sexual abuse counts, the district court properly

referred to that provision to determine the base offense level for those counts. Id. § 2A3.1(a)(2).

And because Perez’s aggravated sexual abuse convictions under 18 U.S.C. § 2241(a) necessarily

“involved conduct described in 18 U.S.C. § 2241(a),” the district court also properly imposed the

2
We adopt the parties’ shorthand description of the use-of-force enhancement because the use of
force was the basis for applying it in this particular case. However, we note that the enhancement
does not use the words “use of force” and is not limited to that behavior, but rather applies to any
case in which “the offense involved conduct described in 18 U.S.C. § 2241(a) or (b),” U.S.S.G.
§ 2A3.1(b)(1), and thus covers other aggravating conduct such as where the victim is threatened
with serious harm, rendered unconscious, or impaired by the covert administration of an intoxicant.
See 18 U.S.C. § 2241(a)(2), (b)(1), (b)(2).

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use-of-force enhancement for those counts. U.S.S.G. § 2A3.1(b)(1); cf. United States v. Irving,

554 F.3d 64, 72–73 (2d Cir. 2009) (upholding the imposition of both the base offense level and

enhancement provided by a former version of § 2A3.1 in part because the Statutory Index listed

that section as the only applicable provision for violations of 18 U.S.C. § 2241(c)). Notably,

§ 2A3.1 cites a context in which the use-of-force enhancement does not apply, but that exception

does not include convictions under 18 U.S.C. § 2241(a). See U.S.S.G. § 2A3.1 cmt. n.2(B).

Perez’s argument that the use-of-force enhancement was duplicative of the base offense

level is unavailing. “Impermissible double counting occurs when one part of the guidelines is

applied to increase a defendant’s sentence to reflect the kind of harm that has already been fully

accounted for by another part of the guidelines.” United States v. Volpe, 224 F.3d 72, 76 (2d Cir.

2000) (quoting United States v. Napoli, 179 F.3d 1, 12 n.9 (2d Cir. 1999)). Yet “multiple

adjustments may properly be imposed when they aim at different harms emanating from the same

conduct.” Id. Here, the base offense level for the aggravated sexual abuse counts — which

applies equally to aggravated sexual abuse under 18 U.S.C. § 2241(a) or § 2241(b) and to

“unaggravated” sexual abuse under § 2242, see U.S.S.G. App. A — recognized the baseline harm

of the conduct of criminal sexual abuse while the use-of-force enhancement recognized the distinct

harm of the use of force in the commission of that sexual abuse. Thus, we discern no error in the

application of the use-of-force enhancement.

We turn next to the vulnerable-victim enhancement. The parties agree that — even

assuming arguendo that Perez were to prevail in his challenge to the application of this

enhancement — his Guidelines range would be above, and therefore be capped at, the maximum

offense level of 43 and would be reduced only if both the vulnerable-victim and use-of-force

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enhancements are not applied. 3 Accordingly, because we conclude that the inclusion of the use-

of-force enhancement was appropriate, we need not consider Perez’s challenge to the vulnerable-

victim enhancement. We conclude that “the district court would have imposed the same sentence

in any event,” and that any erroneous application of the vulnerable-victim enhancement “may be

deemed harmless.” Kent, 821 F.3d at 367 (quotation marks omitted).

2. Unwarranted Sentencing Disparity

We next consider Perez’s argument that the district court imposed an excessive prison

sentence. Citing to cases in which prison officials received shorter sentences for what he

characterizes as similar conduct, Perez argues that his sentence, left uncorrected, gives rise to

“unwarranted sentencing disparities” in contravention of the 18 U.S.C. § 3553(a) sentencing

factors. Appellant’s Br. at 23. We disagree. Under the deferential standard applied to such

challenges, we discern no abuse of discretion in the imposition of the below-Guidelines sentence

of 25 years. Perez cites to cases involving officials who pled guilty to a smaller number of counts

than the 23 counts on which the jury convicted Perez, and a district court could reasonably

conclude that these individuals were not sufficiently similarly situated to Perez to raise an

unwarranted sentencing disparity. See, e.g., United States v. Alcius, 952 F.3d 83, 89 (2d Cir.

2020) (per curiam) (rejecting codefendant-based sentencing-disparity argument where the

codefendant pled guilty to a single count and the defendant was tried and convicted of five counts,

including one count with a 15-year minimum sentence). Furthermore, the district court explicitly

mentioned its consideration of “the need to avoid unwarranted sentencing disparities,” among

other factors, in sentencing Perez. Sentencing Tr. at 65; see also United States v. Solis, 18 F.4th

3
We note that the district court imposed a sentence below the Guidelines recommendation of a
lifetime term, even applying the enhancements challenged on appeal.

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395, 406 (2d Cir. 2021). In addition, to the extent that Perez challenges the substantive

reasonableness of the sentence, the record does not indicate that the sentence “cannot be located

within the range of permissible decisions.” Cavera, 550 F.3d at 189.

3. Ability to Pay a Fine

Finally, Perez asserts that the district court imposed an excessive fine in light of the

Presentence Investigation Report’s finding that he was unable to pay a fine, the district court’s

appointment of counsel to represent him, and his attempt to object to the district court’s statement

at sentencing that he would receive a pension. We agree that the case should be remanded for

further factfinding as to Perez’s ability to pay the fine imposed.

In imposing a fine, a district court must consider the factors listed in 18 U.S.C. §§ 3553(a),

3571, and 3572, as well as the Guidelines factors and range. United States v. Elfgeeh, 515 F.3d

100, 136 (2d Cir. 2008). The Guidelines provide that a district court “shall impose a fine in all

cases, except where the defendant establishes that he is unable to pay and is not likely to become

able to pay any fine.” U.S.S.G. § 5E1.2(a). Considerations in imposing a fine include “civil

obligations arising from the defendant’s conduct,” id. § 5E1.2(d)(5), and the defendant’s

representation by appointed counsel, id. § 5E1.2 cmt. n.3, among other factors. “The defendant

must be given at least a minimal opportunity to show that he lacks the ability to pay the fine . . . .”

Elfgeeh, 515 F.3d at 136. While “present indigence is not an absolute barrier to the imposition

of a fine,” a district court may impose a fine on an indigent defendant “only if there is evidence in

the record that he will have the earning capacity to pay the fine.” United States v. Corace, 146

F.3d 51, 56 (2d Cir. 1998) (emphasis added) (internal quotation marks and citation omitted).

Here, the Presentence Investigation Report indicates that Perez is unable to pay a fine and

has a negative net worth. At the sentencing hearing, the district court acknowledged Perez’s

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present inability to pay a fine but noted, based on the Presentence Investigation Report and the

probation officer’s testimony at the sentencing, that Perez would receive a Bureau of Prisons

pension and that he had been or would be ordered to participate in a prison work program.

However, the district court did not make a specific finding as to Perez’s future ability to pay a fine.

Moreover, the sentencing transcript suggests that Perez voiced disagreement with the district

court’s statement that he would receive a pension. 4 See Sentencing Tr. at 48–49. The record

also indicates that at the time of sentencing, Perez faced potential liability in multiple civil lawsuits

stemming from his conduct in this criminal case and was represented by appointed counsel.

We acknowledge that the $20,000 fine was well below the Guidelines minimum of

$50,000, that Perez failed to object to the Presentence Investigation Report before sentencing or

when prompted at the sentencing, and that the district court ultimately did not impose restitution.

We also recognize that the district court could properly consider pension payments and earnings

from prison work in determining Perez’s ability to pay a fine. See, e.g., United States v. Clarke,

979 F.3d 82, 101 (2d Cir. 2020); United States v. Hernandez, 85 F.3d 1023, 1031 (2d Cir. 1996).

Nonetheless, it is unclear whether there is “evidence in the record that [Perez] will have the earning

capacity to pay the fine.” Corace, 146 F.3d at 56 (quotation marks omitted). We therefore

remand “partial jurisdiction to the district court to supplement the record on [that] discrete factual .

. . issue while retaining jurisdiction over the original appeal.” United States v. Zukerman, 710 F.

App’x 499, 501 (2d Cir. 2018) (summary order) (quoting Corporación Mexicana De

Mantenimiento Integral, S. De R.L. De C.V. v. Pemex-Exploración Y Producción, 832 F.3d 92,

115 (2d Cir. 2016) (Winter, J., concurring)).

4
For this reason, we do not apply the “plain error” review applicable to objections raised for the
first time on appeal. See, e.g., United States v. Rasheed, 981 F.3d 187, 196–97 (2d Cir. 2020).

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 To be clear, we express no view on the merits as to the appropriateness of a fine in this

case or as to the amount of such a fine. We simply remand, directing (1) the parties to supplement

the record with respect to Perez’s ability to pay the fine imposed and (2) the district court to

determine whether, on the basis of the supplemented record, a fine is appropriate, and either leave

the present judgment in place, “elaborat[ing] on its rationale” for the fine, id., or vacate the fine

and impose whatever fine, if any, it believes is appropriate. Upon such decision by the district

court, either party may restore the matter to the active docket of this Court by letter, without filing

a new notice of appeal. If either party seeks further action from this Court, the matter will be

referred to this panel. See United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994) (recognizing

that appellate courts may seek “supplementation of a record without a formal remand or the need

for a new notice of appeal before the appellate panel acts on the supplemental record”).

* * *

We have considered Perez’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM in part and REMAND the case for further proceedings consistent with

this order.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

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