United States v. Perez

• Decision Date: 22 July 2021
• Docket Number: No. 19-1469,19-1469
• Citation: 5 F.4th 390
• Parties: UNITED STATES of America v. Lesandro PEREZ, also known as Toast, Appellant
• Court: U.S. Court of Appeals — Third Circuit

5 F.4th 390

UNITED STATES of America

v.Lesandro PEREZ, also known as Toast, Appellant

No. 19-1469

United States Court of Appeals, Third Circuit.

Argued on January 26, 2021

Opinion filed: July 22, 2021

Christy Martin, Esq. (Argued), Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant

Sarah Damiani, Esq., Bernadette A. McKeon, Esq., Robert A. Zauzmer, Esq. (Argued), Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Before: AMBRO, SHWARTZ, AND BIBAS, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge

Lesandro Perez pled guilty to federal firearm and drug offenses arising from, among other things, selling guns to an undercover law enforcement officer. The Sentencing Guidelines recommended between 84 and 105 months’ imprisonment for Perez's crimes. But at the Government's urging, the District Court applied a sentencing enhancement that brought Perez's recommended prison time up to 121 to 151 months. The reason? The undercover officer observed that Perez had guns and drugs together in the same room.

We now decide whether the mere physical proximity between guns and drugs is enough to justify the significant increase in Perez's Guidelines range. We hold that it is not. While the Commentary to the Guidelines, on which the District Court relied, deserves deference, we are persuaded that the Court misapplied it in this instance. We believe the Commentary creates a rebuttable presumption, rather than a bright-line rule, that the enhancement should apply when a defendant possesses guns and drugs together. We therefore vacate the District Court's judgment and sentence and remand for further proceedings.

I. BACKGROUND

Over a six-month period in 2017, Perez sold firearms and controlled substances to various confidential informants and undercover officers. On March 9, 2017, he sold two firearms to an undercover officer.¹ Perez kept those guns under a mattress in the room where he conducted the transaction. During it the officer observed drugs, drug-packaging materials, and drug paraphernalia in the same room as the two guns.

Perez was later charged in three separate indictments in the Eastern District of Pennsylvania, all involving sales of guns or drugs. One of the indictments concerned the March 9th transaction. Perez ultimately pled guilty to all three indictments. The Sentencing Guidelines range was 121 to 151 months, based on a total offense level of 29 and a criminal history of IV. This calculation included a four-level enhancement per U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (U.S. Sentencing Comm'n 2016), which applies when the defendant "used or possessed any firearm ... in connection with another felony offense." While there were numerous other sales in the three indictments, the Government conceded that the March 9th transaction was the only arguable basis for the enhancement.

Perez objected to the enhancement at sentencing, arguing that he did not use the guns "in connection with" his felony drug-trafficking offense because he was merely offering the guns for sale in the same room as the drugs. But the District Court overruled the objection and concluded that the enhancement applied because the guns "were in close proximity to drugs and ... drug material." App. 109. The Court thus applied the initial total offense level of 29 and criminal history of IV, and sentenced Perez to 121 months’ imprisonment followed by five years’ supervised release. On appeal, he renews his argument that the four-level enhancement does not apply because he possessed the firearms to sell them, and thus they should not be deemed as used or possessed in connection with a drug-trafficking offense based solely on their close proximity to drugs.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject-matter jurisdiction over this prosecution for federal crimes under 18 U.S.C. § 3231. We have jurisdiction to review Perez's sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

When a defendant does not contest the facts of his offense, we review without deference a district court's interpretation of the Guidelines. United States v. Bell , 947 F.3d 49, 54 (3d Cir. 2020). Here, Perez does not contest the facts of the March 9th transaction. Rather, he argues that the District Court made a legal error in interpreting the Guidelines to require a four-level enhancement any time guns are physically near drugs or drug paraphernalia. We thus conduct a fresh review of the Court's decision.²

III. ANALYSIS

Section 2K2.1(b)(6)(B) of the Sentencing Guidelines requires a four-level sentencing enhancement in cases where a defendant "used or possessed any firearm ... in connection with another felony offense." U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (U.S. Sentencing Comm'n 2016). The Sentencing Commission's Commentary to this provision, however, applies different rules based on the type of other felony involved. By default, the enhancement applies under Note 14(A) of the Commentary "if the firearm ... facilitated, or had the potential of facilitating, another felony offense." U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n.14(A) (U.S. Sentencing Comm'n 2016).

But when the other felony offense is drug trafficking, Note 14(B) creates a special rule: The four-level enhancement applies as long as the firearm "is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia." Id. § 2K2.1 cmt. n.14(B). This special rule is justified "because the presence of the firearm has the potential of facilitating another felony offense." Id.

Because Perez's other felony was a drug-trafficking offense, the District Court applied the more severe rule in Note 14(B). And the Court took a broad view of that rule, concluding that Perez used or possessed guns in connection with a drug-trafficking offense because he kept them in close proximity to drugs and drug paraphernalia. We must therefore decide what weight, if any, to give Note 14(B) as an interpretation of the "in connection with" requirement of § 2K2.1(b)(6)(B). We then turn to whether the District Court properly applied Note 14(B) in this case.

A. The Auer deference framework applies to Sentencing Guidelines Commentary.

The "plain and unambiguous language" of the Guidelines is the best course for their interpretation. United States v. Kluger , 722 F.3d 549, 556 (3d Cir. 2013) (quoting United States v. Wong , 3 F.3d 667, 670 (3d Cir. 1993) ). But "[t]he extent to which the [G]uidelines’ [C]ommentary controls our interpretation of the [G]uidelines themselves is informed by principles of administrative law." United States v. Nasir , 982 F.3d 144, 157 (3d Cir. 2020) (en banc), petition for cert. filed on other grounds , 89 U.S.L.W. 3378 (U.S. Apr. 30, 2021) (No. 20-1522). The Guidelines "are the equivalent of legislative rules adopted by federal agencies," so Commentary is "treated as an agency's interpretation of its own legislative rule." Stinson v. United States , 508 U.S. 36, 44–45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). This means the Commentary is subject to the rules of Auer deference. Nasir , 982 F.3d at 157 ; see also id. at 157 n.12 (citing, among others, Auer v. Robbins , 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) ). Under this standard, Commentary "that interprets or explains a [G]uideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that [G]uideline." Stinson , 508 U.S. at 38, 113 S.Ct. 1913.

However, the Supreme Court recently articulated several limitations on Auer deference in Kisor v. Wilkie , ––– U.S. ––––, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019). First, an agency's interpretation of its own rules is entitled to that deference "only if a regulation is genuinely ambiguous." Id. at 2414. But before so concluding, "a court must exhaust all the traditional tools of construction." Id. at 2415 (internal quotation marks omitted). Second, if a regulation is genuinely ambiguous, the agency's interpretation must be reasonable. Id. And third, even if an agency's interpretation is reasonable, "a court must make an independent inquiry into whether the character and context of the agency interpretation entitle[ ] it to controlling weight." Id. at 2416. Of special importance in this analysis is whether the interpretation is the agency's "authoritative" or "official position," id. (internal quotation marks omitted); whether it "implicate[s] [the agency's] substantive expertise," id. at 2417 ; and whether it "reflects [the agency's] fair and considered judgment"—that is, the interpretation cannot be a "convenient litigating position" or a "post hoc rationalizatio[n]" for past agency action, id. (alteration in original) (internal quotation marks omitted).

We applied this scaled-back approach to the Guidelines’ Commentary in United States v. Nasir , emphasizing that the plain text of the Guidelines should control unless the language is genuinely ambiguous. 982 F.3d at 158–60. We acknowledged that previous Supreme Court precedent seemed to allow Commentary to expand the scope of the Guidelines beyond the Guidelines text itself "if the [G]uideline which the commentary interprets will bear the construction." Id. at 157 (quoting Stinson , 508 U.S. at 46, 113 S.Ct. 1913 ). But we joined the Sixth Circuit in concluding that "separation-of-powers concerns advise against any interpretation of the [C]ommentary that expands the substantive law set forth in the [G]uidelines themselves." Id. at 159 ; see also id. (citing United States v. Havis , 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam)).

Under Kisor , then, as interpreted by our Court in Nasir , we afford the Guidelines’ Commentary Auer deference when the Guidelines’ language is ambiguous, the Commentary itself is reasonable, and the ...