USA v. Marco Antonio Perez, No. 22-10267 (11th Cir. 2023)Annotate this Case
In late 2018 a grand jury in Mobile, Alabama, charged Defendant with possessing a stolen firearm in violation of 18 U.S.C. Section 922(j). The district court allowed him to be released on bond pending trial. Defendant then faked his own kidnapping. After trial, but before sentencing, the government filed a notice informing Defendant that it was going to seek a ten-year consecutive sentence pursuant to Section 3147. The district court ruled that there was no Apprendi problem because the jury found Defendant guilty of receiving a firearm while under indictment in violation of Section 922(n), and sentenced him to a prison term of 300 months. Defendant appealed.
The Eleventh Circuit affirmed and held that a sentence imposed pursuant to Section 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 pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and its progeny. The court explained that the Apprendi error here was harmless beyond a reasonable doubt. Defendant did not dispute at any point that he was on pretrial release at the time of the Section 922(n) offense, and his counsel recognized that this fact was undisputed at oral argument. The court explained that no reasonable jury could have convicted Defendant of the Section 922(n) offense without also finding that he committed this crime while on pretrial release.