NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
______________
No. 22-2786 ______________
UNITED STATES OF AMERICA
v.
LUIS PEREZ RODRIGUEZ, also known as Luntiph,
Appellant
________________
Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 5-20-cr-00328-001) District Judge: Honorable Joshua D. Wolson ________________
Submitted under Third Circuit L.A.R. 34.1(a) November 14, 2024
Before: RESTREPO, MONTGOMERY-REEVES, and AMBRO, Circuit Judges
(Opinion filed November 26, 2024) OPINION*
AMBRO, Circuit Judge
Luis Perez Rodriguez appeals his 120-year sentence for eight child-pornography
counts. Because the District Court committed no error, we affirm.
I. Background
Perez was indicted on four counts of manufacturing and four counts of distributing
child pornography. Between April 23 and 30, 2020, he produced three explicit images
and one explicit video of minors in his care, ages three and ten, and distributed them in an
online chat room. Perez confessed to this conduct, and he pleaded guilty to all counts in
December 2021.
The U.S. Probation Office calculated a Sentencing Guidelines Base Offense Level
of 32. It applied additional enhancements for specific offense characteristics, like the ages
of the victims, their relationship to Perez, and the content of the videos, as well as the re-
peat nature of the offenses. After applying a three-level reduction for accepting responsi-
bility, the Probation Office calculated a Total Offense Level of 52 and a Criminal History
Category of I. Because the maximum Total Offense Level under the Guidelines is 43, Pe-
rez’s offense level was functionally 43.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 A Total Offense Level of 43 and Criminal History Category of I come with a rec-
ommended prison term of life. But because the Guidelines cannot recommend a sentence
higher than the statutory maximum penalties for the underlying crimes, Perez’s Guide-
lines term of imprisonment was 2,400 months (200 years)—the statutory maximum on
each count, run consecutively.
The District Court held a sentencing hearing for Perez in September 2022. Neither
party objected to the presentencing report. The District Court considered all statements
and mitigating evidence offered and thoroughly discussed the mitigating factors under 18
U.S.C. § 3553(a). It ultimately imposed a sentence of 120 years: four consecutive sen-
tences of 30 years for manufacturing the pictures and video and four sentences of 20
years for distributing them, to run concurrently with the manufacturing sentences. Perez
raised no procedural or substantive objections to the hearing or sentence, and he timely
appealed.
II. Discussion
Perez raises three issues on appeal. First, he argues that the District Court violated
his Sixth Amendment right to a jury trial by considering the repeat nature of his offenses
at sentencing without submitting the issue to the jury. In Perez’s view, whether he is a re-
peat offender is a “fact that increases the mandatory minimum” sentence, and so it “must
be submitted to a jury or admitted by the defendant,” as required by Alleyne v. United
States, 570 U.S. 99, 102 (2013). Appellant’s Br. 4. Second, he contends that his 120-year
sentence is substantively unreasonable because he is a first-time offender with no crimi-
nal history. And third, he claims that his consecutive sentences violate the Double
3 Jeopardy Clause because they “concern the same electronic device or medium” and thus
“require[] one punishment.” Appellant’s Br. 7.
We review objections that were not preserved at sentencing for plain error. United
States v. Couch, 291 F.3d 251, 252–53 (3d Cir. 2002). We review the substantive reason-
ableness of a sentence for abuse of discretion. United States v. Wise, 515 F.3d 207, 217–
18 (3d Cir. 2008). We afford a district court’s sentencing determination “great deference”
because “the sentencing judge is in a unique position to evaluate a defendant’s ac-
ceptance of responsibility.” United States v. Bennett, 161 F.3d 171, 196 (3d Cir. 1998)
(quoting U.S.S.G. § 3E1.1 cmt. (n.5)). We will thus affirm the substantive reasonableness
of a sentence “unless no reasonable sentencing court would have imposed the same sen-
tence on that particular defendant for the reasons the district court provided.” United
States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). The party challenging the
sentence bears the burden of showing that his sentence was unreasonable. United States
v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006).
A. The District Court Did Not Violate Perez’s Sixth Amendment Right to a Jury Trial.
Perez first argues that the District Court violated his Sixth Amendment right to a
jury trial by considering the repeat nature of his conduct at sentencing. According to Pe-
rez, whether he was a repeat offender is a factual issue that affects his sentence, so it must
be decided by a jury under the Supreme Court’s decision in Alleyne. This argument mis-
understands Alleyne, which held only that a “fact that increases [a] mandatory minimum
[sentence] is an element [of the underlying crime] that must be submitted to the jury” and
4 proved beyond a reasonable doubt. 570 U.S. at 103 (internal quotation marks omitted).
But whether Perez was a repeat offender affected only his recommended sentence under
the Guidelines, not his mandatory minimum sentence.
Perez may instead have meant to invoke the Supreme Court’s related decision in
Apprendi v. New Jersey, which held that a “fact that increases the penalty for a crime be-
yond the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U.S. 466, 490 (2000). But that argument fails, too, because Perez
does not claim that the District Court’s finding that he was a repeat offender increased his
sentence beyond the statutory maximum, either. Nor could he—the statutory maximum
for his offenses is 200 years, yet he was sentenced to 120.
The fundamental problem with Perez’s Sixth Amendment argument is that it mis-
takes a fact that affects the statutory minimum or maximum sentence to which he is ex-
posed with a fact that affects his recommended sentence under the Guidelines.1 Apprendi
is concerned with the former; Perez presents us with the latter. See United States v. Wom-
ack, 55 F.4th 219, 241 (3d Cir. 2022) (“[S]ince [the defendant] does not argue that the
sentence imposed here exceeded the statutory maximum for [his] conviction, any claim
of an Apprendi violation is without merit.”).
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
______________
No. 22-2786 ______________
UNITED STATES OF AMERICA
v.
LUIS PEREZ RODRIGUEZ, also known as Luntiph,
Appellant
________________
Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 5-20-cr-00328-001) District Judge: Honorable Joshua D. Wolson ________________
Submitted under Third Circuit L.A.R. 34.1(a) November 14, 2024
Before: RESTREPO, MONTGOMERY-REEVES, and AMBRO, Circuit Judges
(Opinion filed November 26, 2024) OPINION*
AMBRO, Circuit Judge
Luis Perez Rodriguez appeals his 120-year sentence for eight child-pornography
counts. Because the District Court committed no error, we affirm.
I. Background
Perez was indicted on four counts of manufacturing and four counts of distributing
child pornography. Between April 23 and 30, 2020, he produced three explicit images
and one explicit video of minors in his care, ages three and ten, and distributed them in an
online chat room. Perez confessed to this conduct, and he pleaded guilty to all counts in
December 2021.
The U.S. Probation Office calculated a Sentencing Guidelines Base Offense Level
of 32. It applied additional enhancements for specific offense characteristics, like the ages
of the victims, their relationship to Perez, and the content of the videos, as well as the re-
peat nature of the offenses. After applying a three-level reduction for accepting responsi-
bility, the Probation Office calculated a Total Offense Level of 52 and a Criminal History
Category of I. Because the maximum Total Offense Level under the Guidelines is 43, Pe-
rez’s offense level was functionally 43.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 A Total Offense Level of 43 and Criminal History Category of I come with a rec-
ommended prison term of life. But because the Guidelines cannot recommend a sentence
higher than the statutory maximum penalties for the underlying crimes, Perez’s Guide-
lines term of imprisonment was 2,400 months (200 years)—the statutory maximum on
each count, run consecutively.
The District Court held a sentencing hearing for Perez in September 2022. Neither
party objected to the presentencing report. The District Court considered all statements
and mitigating evidence offered and thoroughly discussed the mitigating factors under 18
U.S.C. § 3553(a). It ultimately imposed a sentence of 120 years: four consecutive sen-
tences of 30 years for manufacturing the pictures and video and four sentences of 20
years for distributing them, to run concurrently with the manufacturing sentences. Perez
raised no procedural or substantive objections to the hearing or sentence, and he timely
appealed.
II. Discussion
Perez raises three issues on appeal. First, he argues that the District Court violated
his Sixth Amendment right to a jury trial by considering the repeat nature of his offenses
at sentencing without submitting the issue to the jury. In Perez’s view, whether he is a re-
peat offender is a “fact that increases the mandatory minimum” sentence, and so it “must
be submitted to a jury or admitted by the defendant,” as required by Alleyne v. United
States, 570 U.S. 99, 102 (2013). Appellant’s Br. 4. Second, he contends that his 120-year
sentence is substantively unreasonable because he is a first-time offender with no crimi-
nal history. And third, he claims that his consecutive sentences violate the Double
3 Jeopardy Clause because they “concern the same electronic device or medium” and thus
“require[] one punishment.” Appellant’s Br. 7.
We review objections that were not preserved at sentencing for plain error. United
States v. Couch, 291 F.3d 251, 252–53 (3d Cir. 2002). We review the substantive reason-
ableness of a sentence for abuse of discretion. United States v. Wise, 515 F.3d 207, 217–
18 (3d Cir. 2008). We afford a district court’s sentencing determination “great deference”
because “the sentencing judge is in a unique position to evaluate a defendant’s ac-
ceptance of responsibility.” United States v. Bennett, 161 F.3d 171, 196 (3d Cir. 1998)
(quoting U.S.S.G. § 3E1.1 cmt. (n.5)). We will thus affirm the substantive reasonableness
of a sentence “unless no reasonable sentencing court would have imposed the same sen-
tence on that particular defendant for the reasons the district court provided.” United
States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). The party challenging the
sentence bears the burden of showing that his sentence was unreasonable. United States
v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006).
A. The District Court Did Not Violate Perez’s Sixth Amendment Right to a Jury Trial.
Perez first argues that the District Court violated his Sixth Amendment right to a
jury trial by considering the repeat nature of his conduct at sentencing. According to Pe-
rez, whether he was a repeat offender is a factual issue that affects his sentence, so it must
be decided by a jury under the Supreme Court’s decision in Alleyne. This argument mis-
understands Alleyne, which held only that a “fact that increases [a] mandatory minimum
[sentence] is an element [of the underlying crime] that must be submitted to the jury” and
4 proved beyond a reasonable doubt. 570 U.S. at 103 (internal quotation marks omitted).
But whether Perez was a repeat offender affected only his recommended sentence under
the Guidelines, not his mandatory minimum sentence.
Perez may instead have meant to invoke the Supreme Court’s related decision in
Apprendi v. New Jersey, which held that a “fact that increases the penalty for a crime be-
yond the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U.S. 466, 490 (2000). But that argument fails, too, because Perez
does not claim that the District Court’s finding that he was a repeat offender increased his
sentence beyond the statutory maximum, either. Nor could he—the statutory maximum
for his offenses is 200 years, yet he was sentenced to 120.
The fundamental problem with Perez’s Sixth Amendment argument is that it mis-
takes a fact that affects the statutory minimum or maximum sentence to which he is ex-
posed with a fact that affects his recommended sentence under the Guidelines.1 Apprendi
is concerned with the former; Perez presents us with the latter. See United States v. Wom-
ack, 55 F.4th 219, 241 (3d Cir. 2022) (“[S]ince [the defendant] does not argue that the
sentence imposed here exceeded the statutory maximum for [his] conviction, any claim
of an Apprendi violation is without merit.”).
1 Because Perez’s Total Offense Level was 52, the District Court’s decision to apply the five-level enhancement did not affect his recommended sentence. Either way, it would have been above the maximum Total Offense Level of 43. Perez concedes as much and recognizes that even if he were right, any error would be harmless. Reply Br. 3 (“[T]here are multiple enhancements that do not apply and if Appellant Perez was to challenge those enhancements, the total Guideline calculations would rest at level 43 from level 52. Therefore, Appellant Perez is aware that such a challenge may direct this Honorable Panel to hold such a claim to be of ‘harmless error’ nature.”). 5 B. The District Court Did Not Abuse Its Discretion in Sentencing Perez to 120 Years’ Imprisonment.
Perez next argues that his sentence was substantively unreasonable because he
“has no criminal history, he accepted the charges before him, and he showed remorse” for
his crimes. Appellant’s Br. 6. We may overturn the District Court’s sentencing decision
only for abuse of discretion; it is not enough that we may have imposed a different sen-
tence in the first instance. We will not reverse a sentence as substantively unreasonable
unless “no reasonable sentencing court would have imposed the same sentence on that
particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568.
Perez points to several mitigating factors, which he believes the District Court
should have weighed more heavily. But “a district court’s failure to give mitigating fac-
tors the weight a defendant contends they deserve [does not] render[] the sentence unrea-
sonable.” United States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007). Even if we would
have made a different sentencing decision in the first instance, we cannot hold, based on
the record before us, that no reasonable sentencing court would have sentenced Perez to a
within-Guidelines penalty of 120 years’ imprisonment.
C. Perez’s Consecutive Sentences Do Not Violate the Double Jeopardy Clause.
Lastly, Perez argues that because his crimes all involved one device that manufac-
tured the three images and one video, it “requires one punishment.” Appellant’s Br. 7. He
also challenges the District Court’s general authority to impose consecutive sentences.
Both arguments are wrong.
6 “The Double Jeopardy Clause is not implicated when multiple separate violations
of the same provision are charged in multiple counts.” United States v. Snyder, 189 F.3d
640, 647 (7th Cir. 1999); accord United States v. Rigas, 605 F.3d 194, 205 (3d Cir. 2010)
(en banc). Perez violated 18 U.S.C. § 2551 each time he manufactured an image in viola-
tion of the law. Circuits around the country routinely hold that a defendant violates the
statute each time he uses a child to produce an image or video. See United States v. Tash-
book, 144 F. App’x 610, 614–15 (9th Cir. 2005) (concluding that two photographs of a
minor, taken during the same photo shoot, can be grounds for two separate offenses under
18 U.S.C. § 2251(a)); United States v. Smith, 919 F.3d 1, 16 (1st Cir. 2019) (holding that
six separate videos over the course of an hour can be grounds for six separate counts un-
der 18 U.S.C. § 2251(a)). The District Court did not err by sentencing Perez to four con-
secutive sentences for his four distinct violations of the manufacturing statute.
Perez is also wrong that the District Court lacks authority to impose consecutive
sentences. Except in circumstances of attempt crimes not relevant here, terms of impris-
onment “may run concurrently or consecutively.” 18 U.S.C. § 3584(a). And though a
court must weigh the § 3553(a) factors “as to each offense” in deciding to impose concur-
rent or consecutive sentences, 18 U.S.C. § 3584(b), the District Court did so here.
* * *
Perez’s sentence may be harsh, but it is not unlawful. The District Court commit-
ted no error, so we affirm.