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United States v. Perez

United States District Court, N.D. Illinois, Eastern Division

February 13, 2018

UNITED STATES OF AMERICA,
v.
DAVID PEREZ, a/k/a “Monster, ”

          MEMORANDUM ORDER

          REBECCA R. PALLMEYER UNITED STATES DISTRICT JUDGE.

         On July 21, 2016, the grand jury returned a nineteen-count indictment against Defendant David Perez and fourteen other members of the Maywood Latin Kings street gang. (Indictment [4].) The indictment charges the Defendants with conspiring to violate the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1961 et. seq., through their involvement with the Latin Kings. (Id. at 1-14.) The indictment also charges the Defendants with numerous violent crimes and firearms offenses in connection with the racketeering conspiracy. (Id.) Perez is personally charged with RICO conspiracy (Count One), attempted murder and assault with a dangerous weapon (Counts Two, Three, Four, and Six), and possessing a firearm as a previously-convicted felon (Counts Sixteen through Nineteen).

         As one of the predicate acts necessary to establish a pattern of racketeering activity under the RICO Act, the Government alleged that Perez and four others attempted to murder an individual, referred to as “Victim 1, ” in violation of Illinois law. (Id.) The Government claims that two of Perez's co-defendants shot Victim 1 on May 11, 2014, in Melrose Park, Illinois-causing Victim 1 great bodily harm and permanent disfigurement. (Id.) The Government alleges that Perez, as the leader or “Inca” of his circle of Latin Kings, ordered those co-defendants to shoot Victim 1 and also helped to locate Victim 1 on the day of the shooting. (Government's Brief Regarding Statutory Maximum on Count One [371] (“Gov't's Br.”), 3.) It is undisputed that Perez did not personally discharge a firearm in the course of the attempted murder.

         On March 24, 2017, Perez pleaded guilty to Count One's charge of RICO conspiracy. (Plea Agreement [259].) Perez also pleaded guilty to one count of being a felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Id.) In his plea, Perez admitted to conspiring to conduct and participate in the affairs of a criminal enterprise (the Latin Kings gang) “through a pattern of racketeering activity, which included threats, intimidation, and violence, [and] which included assaults with dangerous weapons against others[.]” (Plea Agreement 2.) Perez has not, however, admitted to any involvement with the alleged attempted murder of Victim 1 as described in the Special Findings section of Count One, and separately charged against Perez and others in Counts Two and Three.

         In Perez's plea agreement, the parties recognized an ongoing disagreement concerning the maximum sentence permitted for his violation of 18 U.S.C. § 1962(d). The parties have now filed briefs so that this legal issue can be resolved prior to sentencing. The Government believes that Perez is eligible for life imprisonment under Section 1963(a) because the RICO conspiracy involved an attempted murder: “a racketeering activity for which the maximum penalty includes life imprisonment” under Illinois law. (Gov't's Br. 5.) The Defendant argues that the maximum sentence is capped at 20 years because Perez would not be subject to a life sentence for attempted murder based on these facts, if he were charged with that crime in Illinois. (Defendant's Response to Gov't's Br. [391] (“Def.'s Resp.”), 2.) Because Perez has not admitted to any facts surrounding the attempted murder of Victim 1, the Government acknowledges that it must still prove those underlying facts beyond a reasonable doubt at a future proceeding, should it ask for a sentence of more than 20 years for Perez. (Gov't's Br. 4- 5) (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).)

         The sole issue addressed in this opinion is whether a defendant in a RICO conspiracy must be personally eligible to receive a life sentence under state law for a given offense in order to be eligible for a life sentence for a RICO Act violation that relies on that state offense as an underlying act of racketeering. For the reasons described below, the court finds that the applicable statutory maximum sentence for Defendant David Perez is life imprisonment.

         DISCUSSION

         RICO violations typically carry a 20-year statutory maximum prison sentence. 18 U.S.C. § 1963(a). The statutory maximum is increased to life, however, “if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.” Id. The Act defines “racketeering activity” as including “any act or threat involving murder . . . which is chargeable under State law.” 18 U.S.C. § 1961(1). In Illinois, attempted first-degree murder is not a life-eligible offense without the presence of aggravating factors. Instead, the offense is classified as a Class X felony, which prescribes a range of 6-30 years imprisonment. 720 ILCS 5/8-4(c)(1).

         Illinois law does, however, authorize sentences “up to a term of natural life” in cases of attempted first-degree murder “during which the person personally discharged a firearm that proximately caused great bodily harm, permanent disability, permanent disfigurement, or death to another person[.]” 720 ILCS 5/8-4(c)(1)(D) (emphasis added). The Government contends that this provision makes Perez eligible for life imprisonment because the charged RICO conspiracy involved such an attempted murder-that is, one in which a person discharged a firearm and caused the requisite harm. Perez objects on two grounds. As a threshold matter, Perez argues that the Government's allegations against Perez do not amount to “racketeering activity” within the meaning of Section 1961(1) because the additional factors required to trigger increased punishment for attempted murder in Illinois are merely a “firearm sentencing enhancement” and not a separate “offense.” (Def.'s Resp. at 4-5.) Perez's central objection to his eligibility for a life sentence, however, concerns the “personally discharged” language in the Illinois statute. (Id. at 2.) Perez does not dispute that the alleged attack on Victim 1 caused Victim 1 great bodily harm and permanent disfigurement. Rather, Perez emphasizes that he did not personally pull the trigger on Victim 1. Thus, he contends, the “personally discharged” restriction in the Illinois attempted murder statute that authorizes a life sentence limits the sentence that may be imposed under the RICO Act and prevents the Government from “superimposing vicarious liability theories” in an attempt to bypass Illinois law. (Id. at 2.)

         1. State “Sentencing Enhancements” Qualify as “Racketeering Activity” under the RICO Act

         Perez's first argument is that, regardless of which individuals may be held accountable for the alleged attempted murder of Victim 1, the Government may not rely on a mere “sentencing enhancement” to trigger a life sentence under RICO because the enhancement is not “racketeering activity” within the definition of 18 U.S.C. § 1961(1). (Def.'s Resp. 6.) Perez cites no authority in the few sentences he devotes to this argument, and his position does not appear to be supported by the law. (See id.) On this threshold matter of whether the facts of the alleged attempted murder constitute “racketeering activity, ” the text of the RICO Act provides a clear answer. The definitions section states that “racketeering activity” includes “any act or threat involving murder . . . chargeable under State law.” 18 U.S.C. § 1961(1) (emphasis added). An attempted murder with a firearm that specifically results in “great bodily harm, permanent disability, permanent disfigurement, or death” to the victim counts as “any act . . . involving murder . . . chargeable under State law” and is a predicate racketeering activity for the purposes of the RICO Act.

         Even if the phrase “any act” could be interpreted some other way, the case law reveals that the RICO Act is concerned with behaviors, not technical categorizations. As summarized by the Seventh Circuit in a RICO case involving bribery that was possibly-but not clearly- prohibited by Illinois law: “[T]he RICO statute incorporates state offenses according to their generic designation. . . . ‘The test for determining whether the charged acts fit into the generic category of the predicate offense is whether the indictment charges a type of activity generally known or characterized in the proscribed category.'” United States v. Garner, 837 F.2d 1404, 1419 (7th Cir. 1987) (quoting United States v. Forsythe, 560 F.2d 1127, 1137 (3d Cir. 1977)). For this reason, the court is not persuaded by Perez's suggestion that there is a difference in “chargeability” between the base offense of attempted murder and the firearm sentencing enhancement in 720 ILCS 5/8-4(c)(1)(D). Perez is indeed correct that Section 5/8-4(c)(1)(D) is most accurately described as a “sentencing enhancement” and not a unique “offense, ” see People v. Harris, 410 Ill.Dec. 591, 600, 70 N.E.3d 718, 727 (1st Dist. 2016), but the categorization is not relevant to this dispute. In fact, treating the two types of provisions differently would appear to run afoul of the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000). Because Illinois's firearm sentencing enhancement increases the statutory maximum above the maximum for “baseline” attempted murder, Apprendi actually requires prosecutors to charge a defendant with a “sentencing enhancement” just as they would have to for a basic offense. Id. at 490. Either within the context of the RICO Act, or as a standalone offense in the state of Illinois, the varieties of attempted murder that render a defendant subject to a life sentence are “chargeable under State law.”

         Taken to its logical conclusion, Perez's view would call into question every sentence of more than 20 years imposed for a RICO violation that was based on a violation of Illinois law. There are no “baseline” crimes for which an individual may be sentenced to life in prison in Illinois absent aggravating factors or “sentencing enhancements.” Even first-degree murder, in its basic form, only warrants a 20 to 60 year prison sentence in Illinois. 730 ILCS 5/5-4.5-20(a). As with attempted murder, first-degree murder only becomes a life-eligible offense with the presence of aggravating factors. See 720 ILCS 5/9-1(b); 730 ILCS 5/5-8-1. In its Reply Brief, the Government logically concluded that all of the “federal racketeering cases in this circuit that involve enhanced sentences under § 1963(a) based on murder or attempted murder in violation of Illinois law necessarily involve aggravated forms of these predicate offenses.” (Government's Reply Brief [415] (“Gov't's Reply), 4) (citing United States v. Benabe, 654 F.3d 753 (7th Cir. 2011)) (emphasis added).

         This court is not aware of any instance in which another court in this circuit has split the facts underlying a predicate racketeering activity into separate offense and enhancement components. See, e.g., United States v. Warneke, 310 F.3d 542, 549-50 (7th Cir. 2002) (affirming the defendants' life sentences for a RICO conspiracy based on predicate acts for which the Illinois aggravated murder statute authorized a life sentence); Benabe, 654 F.3d at 757-59 (same); United States v. Morales, 655 F.3d 608, 615-19 (7th Cir. 2011) (same). This court therefore declines to adopt Perez's novel interpretation of Section 1961(1). Regardless of whether Perez ...


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