United States v. Aaron Perez

Opinion

FILED NOT FOR PUBLICATION JUL 11 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10216

Plaintiff-Appellee, D.C. No. 4:16-cr-00223-JSW-1 v.

AARON DAVID PEREZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted June 14, 2018 Submission Vacated July 11, 2018 Resubmitted July 3, 2019 San Francisco, California

Before: SILER,** PAEZ, and IKUTA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Aaron Perez appeals the district’s court denial of his motion to dismiss his

federal indictment and his sentence of 61 months’ imprisonment, followed by three

years of supervised release. We have jurisdiction under 28 U.S.C. § 1291.1

Because the Supreme Court has reaffirmed the dual sovereignty doctrine, see

Gamble v United States, No. 17-646 (June 17, 2019), we reject Perez’s argument

that the Double Jeopardy Clause barred the United States from prosecuting him.

We have declined to extend Padilla v. Kentucky, 559 U.S. 356 (2010),

beyond the Sixth Amendment context, see United States v. Delgado-Ramos, 635

F.3d 1237, 1241 (9th Cir. 2011), thus fatally undercutting Perez’s argument that

Padilla establishes a general rule that the federal government has a duty to warn a

defendant in the successive prosecution context. Nor does Perez point to any other

opinion supporting his argument that the government violated his due process

rights by failing to warn him during state court proceedings that it planned to

undertake a federal prosecution, and we have not found one. Accordingly, we

reject this claim.

Finally, the district court did not procedurally err in its treatment of Perez’s

evidence of purported racial disparities in successive prosecutions. The court did

1 We address the remaining issues in a concurrently filed opinion, United States v. Perez, ___ F. 3d. ___ (9th Cir. 2018). 2 not abuse its discretion in holding that any conclusion of widespread racial

disparity based on Perez’s “anecdotal information,” about four successive

prosecutions involving African American defendants over a five year period,

would be “speculation,” as there “may be a myriad of reasons” why an individual

defendant is subject to successive prosecution.

AFFIRMED.