USCA11 Case: 22-10267 Document: 41-1 Date Filed: 11/14/2023 Page: 1 of 15
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10267
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCO ANTONIO PEREZ,
a.k.a. Red,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket Nos. 1:21-cr-00005-JB-N-1,
1:18-cr-00340-KD-B-1
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2 Opinion of the Court 22-10267
____________________
Before JORDAN, LAGOA, and ED CARNES, Circuit Judges.
JORDAN, Circuit Judge:
In relevant part, 18 U.S.C. § 3147 provides that, if a person
commits a felony offense while on pretrial release, he “shall be sen-
tenced, in addition to the sentence prescribed for the offense, to . . .
a term of imprisonment of not more than ten years,” with the ad-
ditional term to be “consecutive to any other sentence of imprison-
ment.” We hold that a sentence imposed pursuant to § 3147 can
exceed the maximum term prescribed for the underlying offense(s)
of conviction. But in such a circumstance the issue of whether the
person committed a felony offense while on pretrial release must
be submitted to a jury and proven beyond a reasonable doubt pur-
suant to Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and its
progeny.
I
In late 2018 a grand jury in Mobile, Alabama, charged Marco
Antonio Perez with possessing a stolen firearm in violation of 18
U.S.C. § 922(j). The district court allowed him to be released on
bond pending trial. A probation officer instructed him on the terms
of his pretrial supervision, and provided him with a form which
included the following language:
The commission of a federal offense while on pretrial
release will result in an additional sentence of a term
of imprisonment of not more than ten years, if the
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22-10267 Opinion of the Court 3
offense is a felony, or a term of imprisonment of not
more than one year, if the offense is a misdemeanor.
This sentence shall be in addition to any other sen-
tence you receive.
D.E. 66-1 at 4. Mr. Perez signed the form, indicating that he under-
stood its terms. See id.
Not long after he was released, Mr. Perez faked his own kid-
napping. The Mobile Police Department then began looking for
Mr. Perez pursuant to an arrest warrant. While off duty on a Sun-
day, Officer Sean Tuder was informed that Mr. Perez was staying
at the Peach Place Inn Apartments in Mobile. Officer Tuder called
the patrol sergeant to request assistance in arresting Mr. Perez, and
then he drove over to the Peach Place Inn in his personal car and
dressed in civilian clothes.
Upon seeing Mr. Perez, Officer Tuder jumped out of his car
and aimed his gun at him. Mr. Perez froze and slowly backed away.
Officer Tuder ran toward Mr. Perez and attempted to wrestle him
into control. A struggle ensued. Mr. Perez pulled a previously sto-
len firearm out of his waistband and shot Officer Tuder three times.
Those shots proved fatal.
Mr. Perez tried to run into a nearby wooded area, but other
officers arrived and captured him. A superseding indictment
charged him with receiving a firearm while under indictment in
violation of 18 U.S.C. § 922(n), possessing a stolen firearm in viola-
tion of 18 U.S.C. § 922(j), obstruction of justice by killing a witness
in violation of 18 U.S.C. § 1512(a)(1)(C), and carrying, using, and
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4 Opinion of the Court 22-10267
discharging a firearm during a crime of violence in violation of 18
U.S.C. § 924(c)(1)(A)(iii). The case proceeded to trial, and the jury
convicted him of the two § 922 firearm charges and acquitted him
of the § 1512 and § 924 charges.
After trial, but before sentencing, the government filed a no-
tice informing Mr. Perez that it was going to seek a ten-year con-
secutive sentence pursuant to § 3147. The probation office calcu-
lated the total offense level as 52 and the criminal history category
as VI, with a corresponding advisory range of life in prison under
the Sentencing Guidelines. The total offense level of 52 included a
three-level enhancement because of § 3147. See U.S.S.G. § 3C1.3
(“If a statutory sentencing enhancement under 18 U.S.C. § 3147 ap-
plies, increase the offense level by 3 levels.”). 1
The § 922(n) conviction carried a statutory maximum sen-
tence of five years in prison, while the § 922(j) conviction carried a
statutory maximum sentence of ten years in prison. Running these
sentences consecutively, as set out in U.S.S.G. § 5G1.2(d), resulted
in a total maximum sentence of fifteen years. That sentence was
still below the advisory guideline range of life in prison, even after
a ten-year consecutive sentence was tacked on pursuant to § 3147
1 Since 2006, U.S.S.G. § 3C1.3 has been the guideline provision addressing §
3147. Before then, the applicable guideline provision was U.S.S.G. § 2J1.7
(now deleted). See United States v. Chuong Van Duong, 665 F.3d 364, 368 (1st
Cir. 2012).
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22-10267 Opinion of the Court 5
because Mr. Perez committed the § 922(n) offense while on pretrial
release.
The probation office determined that the advisory guideline
range was 300 months (or twenty-five years) in prison and the dis-
trict court agreed. Mr. Perez objected to the § 3147 ten-year con-
secutive sentence, asserting that there was an Apprendi error be-
cause (a) the ten-year sentence exceeded the maximum sentences
permitted for his underlying offenses of conviction, and (b) the jury
never found beyond a reasonable doubt that he committed a felony
offense while on pretrial release (the necessary fact for the § 3147
consecutive sentence). The district court ruled that there was no
Apprendi problem because the jury found Mr. Perez guilty of re-
ceiving a firearm while under indictment in violation of § 922(n),
and sentenced him to a prison term of 300 months.
II
We review the legality of Mr. Perez’s sentence de novo. See
United States v. Cobbs, 967 F.2d 1555 (11th Cir. 1992). This plenary
standard applies to the interpretation of § 3147 and to the Apprendi
issue. See Dept. of Caldas v. Diageo PLC, 925 F.3d 1218, 1221 (11th
Cir. 2018) (statutory interpretation presents a question of law);
United States v. Candelaria, 240 F.3d 1300, 1306 (11th Cir. 2001)
2
(whether a sentence violates Apprendi is subject to de novo review).
2
The government argues that plain error review applies to Mr. Perez’s argu-
ment that § 3147 does not authorize the district court to impose a sentence
that exceeds the maximum permitted for the underlying offense(s) of
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6 Opinion of the Court 22-10267
III
Mr. Perez argues that § 3147 did not authorize the district
court to exceed the statutory maximum sentences for his underly-
ing offenses of conviction (which totaled fifteen years). In his view,
§ 3147 only allows a court to increase (i.e., enhance) a sentence
within the statutory maximum for the underlying offense(s) of con-
viction.
A
Our starting point is the language of § 3147. See United States
v. Braddy, 11 F.4th 1298, 1309 (11th Cir. 2021). Here is the full text
of the statute:
A person convicted of an offense committed while re-
leased under this chapter shall be sentenced, in addi-
tion to the sentence prescribed for the offense to
(1) a term of imprisonment of not more than ten
years if the offense is a felony; or
(2) a term of imprisonment of not more than one year
if the offense is a misdemeanor.
A term of imprisonment imposed under this section
shall be consecutive to any other sentence of impris-
onment.
conviction. In the government’s view, Mr. Perez did not sufficiently preserve
that argument in the district court. We do not address the government’s con-
tention because Mr. Perez’s § 3147 argument fails under plenary review.
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22-10267 Opinion of the Court 7
18 U.S.C. § 3147. We have described § 3147 as a “sentence enhance-
ment statute.” United States v. Tyndale, 209 F.3d 1292, 1295 (11th
Cir. 2000).
We “normally interpret[ ] a statute in accord with the ordi-
nary public meaning of its terms at the time of its enactment.” Bos-
tock v. Clayton Cty., 140 S.Ct. 1731, 1738 (2020). Like the Third Cir-
cuit in United States v. Lewis, 660 F.3d 189, 192 (3d Cir. 2011), we
read the language of § 3147 to require a consecutive sentence–of
up to ten years–in addition to the sentence for the offenses of con-
viction, even where the enhancement takes the total sentence be-
yond the statutory maximum for the underlying offense(s) of con-
viction.
The first paragraph of § 3147 requires a court (emphasis
ours) to impose a sentence of up to ten years “in addition to the sen-
tence prescribed for the offense.” And the last paragraph of § 3147
specifies (emphasis again ours) that the “term of imprisonment im-
posed under this section shall be consecutive to any other sentence of
imprisonment.” Congress would not have used the phrases “in ad-
dition to the sentence prescribed” and “shall be consecutive” if it
meant for the § 3147 enhancement to be included only as part of
the sentence for the underlying offenses of conviction. See Lewis,
660 F.3d at 192 (reviewing for plain error but conducting plenary
statutory analysis). Moreover, § 3147 “contains no qualification or
exception where adding up to ten years of the ‘sentence prescribed’
would exceed the statutory maximum for the underlying offense.
It is difficult for us to read this language in any other manner; by its
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8 Opinion of the Court 22-10267
own terms, the provision states that a sentence of up to ten years
shall be imposed ‘in addition to the sentence prescribed’ for the un-
derlying felony.” Id. Accord United States v. Confredo, 528 F.3d 143,
155 (2d Cir. 2008) (stating, in dicta, that § 3147 “exposes [the de-
fendant] to a higher maximum, i.e., ten more years, than the high-
est maximum he could have received on the offense-on-release
counts”).
The D.C. and Fifth Circuits have said in dicta that § 3147
only increases a sentence within the guideline range (and within
the statutory maximum) for the underlying offense(s) of convic-
tion. See United States v. Samuel, 296 F.3d 1169, 1175 (D.C. Cir.
2002) (“Where a defendant has not been separately convicted of an
offense under § 3147, but instead has merely had his offense level
increased under [U.S.S.G.] § 2J1.7 [now U.S.S.G. § 3C1.3], the Sen-
tencing Guidelines decree that the maximum term to which he
may be sentenced is the maximum authorized for the underlying
offense.”) (citing U.S.S.G. § 5G1.1); United States v. Dison, 573 F.3d
204, 209 (5th Cir. 2009) (“[R]egardless of the fact that § 3147 calls
for punishment ‘in addition to the sentence prescribed’ for the un-
derlying offense, the § 3147 enhancement can never result in a sen-
tence in excess of the statutory maximum prescribed for the offense
committed while on release[.]”) (citing U.S.S.G. § 5G1.1(a) and
Samuel). We do not find their statements persuasive. First, the
D.C. and Fifth Circuit decisions do not properly account for the “in
addition to the sentence prescribed for the offense” and “shall be
consecutive” language in § 3147. See Lewis, 660 F.3d at 194. Sec-
ond, though the Sentencing Guidelines can and do provide a
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22-10267 Opinion of the Court 9
mechanism for implementing a § 3147 enhancement in cases where
the total sentence does not exceed the statutory maximum for the
underlying offense(s) of conviction, see U.S.S.G. §3C1.3, the Sen-
tencing Commission “has no authority to override” a sentencing
statute like § 3147. See Neal v. United States, 516 U.S. 284, 294 (1996).
Cf. U.S.S.G. § 5G1.2(a) (“Except as provided in subsection (e), the
sentence to be imposed on a count for the which the statute . . .
requires that such term of imprisonment be imposed to run con-
secutively to any other term of imprisonment, shall be determined
by that statute and imposed independently.”).
Where, as here, the language Congress used is clear, “that is
as far as we go to ascertain its intent because we must presume that
Congress said what it meant and meant what it said.” United States
v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998). See also Connecticut
Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“We have stated
time and again that courts must presume that a legislature says in
a statute what it means and means in a statute what it says there.”).
We therefore conclude that the district court did not err in impos-
ing a ten-year consecutive sentence pursuant to § 3147 that took
Mr. Perez’s total sentence to twenty-five years.
B
Mr. Perez argues that some Eleventh Circuit cases compel
us to hold that a § 3147 enhancement only affects the guideline sen-
tence and cannot be applied to exceed the statutory maximum for
the underlying offense(s) of conviction. These cases are United
States v. Martell, 906 F.2d 555, 559 (11th Cir. 1990), United States v.
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10 Opinion of the Court 22-10267
Bozza,132 F.3d 659, 661–662 (11th Cir. 1998), and Tyndale, 209 F.3d
at 1295–96.
In Martell, which was decided when the Sentencing Guide-
lines were mandatory, we reversed a ten-year enhancement under
§ 3147 that did not result in a total sentence that exceeded the stat-
utory maximum for the underlying offenses of conviction. We did
so because the Sentencing Guidelines called for a 15 to 21 month
enhancement under § 3147 and the district court did not explain
why it departed upwards to a ten-year enhancement. See Martell,
906 F.2d at 559.
For two reasons, Martell does not help Mr. Perez. First, Mar-
tell does not address whether a district court can impose a § 3147
enhancement that exceeds the statutory maximum for the under-
lying offense(s) of conviction. Second, unlike what happened in
Martell, here the twenty five-year sentence was the advisory range
provided by the Sentencing Guidelines.
In Bozza the defendant argued that he was entitled to notice,
before pleading guilty, of the § 3147 enhancement. We rejected
this argument, and concluded that he had sufficient notice before
the sentencing hearing: “It is clear that [the defendant] had notice
of the possible enhancement from the release bond for his prior
conviction, the government’s notice seeking a sentencing enhance-
ment, and the revised PSR.” Bozza, 132 F.3d at 661.
Like Martell, Bozza does not assist Mr. Perez. First, Bozza
does not address the issue we confront in this appeal. Second, Mr.
Perez did not plead guilty, so he is not in the same position as the
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22-10267 Opinion of the Court 11
defendant in Bozza with respect to notice. Third, Mr. Perez had the
same notice as the defendant in Bozza. His pretrial release form
contained the language from § 3147, the government filed a notice
before sentencing about its intent to seek the § 3147 enhancement,
and the presentence investigation report proposed the § 3147 en-
hancement.
Tyndale also involved a defendant’s request to set aside his
guilty plea based on his lack of notice that his sentence would be
enhanced pursuant to § 3147. See Tyndale, 209 F.3d at 1294–1295.
Conducting plain error review, we noted that a “single additional
day of imprisonment or less would apparently suffice to comply
with the statute,” which meant that any enhancement could be de
minimus. As a result, the district court’s failure to advise the de-
fendant of the § 3147 enhancement did not violate his substantial
rights. See id. at 1295–96.
We don’t think Tyndale is relevant to Mr. Perez’s argument
about the reach and scope of § 3147. Tyndale, a plain error case
about what notice might be required about § 3147 in the context of
a guilty plea, does not address the issue we resolve today—whether
a § 3147 enhancement can exceed the statutory maximum for the
underlying offense(s) of conviction. Moreover, as explained above,
Mr. Perez had sufficient notice about § 3147. See Bozza, 132 F.3d at
661.
IV
We turn next to Mr. Perez’s argument that the ten-year en-
hancement under § 3147 violated Apprendi and its progeny.
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Apprendi holds that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved be-
yond a reasonable doubt.” Apprendi, 530 U.S. at 490. For example,
“a drug quantity determination that takes a sentence beyond the
statutory maximum must be found by a jury beyond a reasonable
doubt.” United States v. Anderson, 289 F.3d 1321, 1326 (11th Cir.
2002).
A
We join the Third and Second Circuits in concluding that
Apprendi applies when a § 3147 enhancement takes the total sen-
tence beyond the statutory maximum for the underlying offense(s)
of conviction. See Lewis, 660 F.3d at 195; Confredo, 528 F.3d at 156.
And, as explained below, we conclude that there was an Apprendi
error.
Mr. Perez faced a combined statutory maximum sentence of
fifteen years (i.e., 180 months) in prison for his two § 922 convic-
tions (the underlying offenses). His twenty five-year sentence ex-
ceeded the statutory maximum for the § 922 offenses by ten years
(i.e., 120 months) due to the application of § 3147. The § 3147 en-
hancement was predicated on the fact that he committed the §
922(n) offense while he was on pretrial release, but that issue was
not submitted to the jury, and as a result the jury did not find that
fact beyond a reasonable doubt. This failure violated Apprendi be-
cause “the relevant ‘statutory maximum’ is not the maximum sen-
tence a [court] may impose after finding additional facts, but the
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22-10267 Opinion of the Court 13
maximum [it] may impose without any additional findings.” Blakely
v. Washington, 542 U.S. 296, 303–04 (2004) (emphasis in original).
The government argues that the failure to submit this issue
to the jury did not violate Apprendi for two reasons. First, it asserts
that Apprendi does not apply because committing an offense while
on pretrial release should be treated like the fact of a prior convic-
tion, which need not be submitted to the jury. See United States v.
Randall, 287 F.3d 27, 30 (1st Cir. 2002) (“[T]his factfinding [for §
3147] may fairly be characterized as literally within the express ex-
ception recognized in Apprendi for ‘the fact of a prior conviction.’”).
Second, the government maintains that the jury convicted Mr. Pe-
rez of receiving a firearm while under indictment in violation of §
922(n), and this satisfies any Apprendi concerns.
We disagree with both of these arguments. As a general
matter, a person’s status on pretrial release is simply not constitu-
tionally identical to the fact of a prior conviction. The former goes
to the circumstances surrounding the offense, while the latter es-
tablishes that a person was previously found guilty of a certain of-
fense. A conviction for an offense committed while under indict-
ment, moreover, does not necessarily indicate whether the person
was on pretrial release when the offense was committed. That is
because a person under indictment can commit certain offenses
while on pretrial release or while in custody. See, e.g., United States
v. Daoud, 980 F.3d 581, 593 (7th Cir. 2020) (defendant solicited the
murder of an FBI agent and tried to stab another inmate to death
while in pretrial detention).
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B
An Apprendi violation does not automatically lead to rever-
sal. “Failure to submit a sentencing factor to the jury, like failure
to submit an element to the jury, is not structural error.” Washing-
ton v. Recuenco, 548 U.S. 212, 222 (2006). In cases of constitutional
error where the issue has been properly preserved, the government
has the burden of proving that the error was harmless beyond a
reasonable doubt. See United States v. Pon, 963 F.3d 1207, 1227–28
(11th Cir. 2020) (citing cases).
Under our precedent, an Apprendi error is harmless “when
there is ‘uncontroverted evidence’ supporting a statutory fact that
alters the range of possible sentences a defendant may receive.”
United States v. Payne, 763 F.3d 1301, 1304 (11th Cir. 2014). In other
words, an error is harmless under Apprendi if the fact at issue is un-
contested. See United States v. Nealy, 232 F.3d 825, 830 (11th Cir.
2000) (failure to submit the amount of drugs to the jury was harm-
less error because the amount was uncontested at trial). We will
affirm “if the record does not contain evidence that could rationally
lead to a contrary finding with respect to” the fact at issue. See An-
derson, 289 F.3d at 1327. See also Nealy, 232 F.3d at 830 (affirming
because “no reasonable jury could have rationally concluded that
[the d]efendant was guilty of the substantive offense—possession,
with intent to distribute of the cocaine base in his backpack—but
that the amount of cocaine possessed was less than 5 grams”).
The Apprendi error here was harmless beyond a reasonable
doubt. Mr. Perez did not dispute at any point that he was on
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22-10267 Opinion of the Court 15
pretrial release at the time of the § 922(n) offense, and his counsel
recognized that this fact was undisputed at oral argument. See also
Initial Br. at 10–11 (explaining that Mr. Perez was released after
signing a form concerning the requirements of pretrial supervi-
sion). More importantly, Mr. Perez stipulated at trial that he was
under indictment for a felony offense and that he remained under
indictment through the date of Officer Tuder’s shooting. See D.E.
80 at 130. Mr. Perez’s probation officer testified that Mr. Perez was
required to comply with certain conditions while on pretrial re-
lease and that he would be penalized if he violated the conditions.
See id. at 134–136. The government also introduced at trial a copy
of the form containing release conditions, which Mr. Perez had
signed. See id. Finally, Mr. Perez told a friend “that he was running
from the feds,” and other friends knew that he “was on the run.”
D.E. 81 at 56, 74, 196. In short, no reasonable jury could have con-
victed Mr. Perez of the § 922(n) offense without also finding that
he committed this crime while on pretrial release. On this record,
the failure to submit the issue to the jury was harmless.
V
We affirm Mr. Perez’s sentence.
AFFIRMED.