NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-2311

_____________

UNITED STATES OF AMERICA

v.

JUAN MANUEL PEREZ,

 Appellant

____________

On Appeal from the United States District Court

for the District of New Jersey

(No. 2-05-cr-00409-001)

District Judge: Honorable Susan D. Wigenton

Argued January 16, 2013

____________

Before: SMITH, CHAGARES, and BARRY, Circuit Judges.

(Filed: March 1, 2013)

Alison Brill, Esq. [Argued]

Office of Federal Public Defender

22 South Clinton Avenue

Station Plaza #4, 4th Floor

Trenton, NJ 08609

Kevin F. Carlucci, Esq.

Office of Federal Public Defender

1002 Broad Street

Newark, NJ 07006

Counsel for Appellant 
2

Mark E. Coyne, Esq.

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Glenn J. Moramarco, Esq. [Argued]

Office of United States Attorney

Camden Federal Building & Courthouse

401 Market Street

Camden, NJ 08101

Counsel for Appellee 

____________

OPINION 

____________

CHAGARES, Circuit Judge.

Juan Manuel Perez was sentenced to 24 months of imprisonment for violating the 

terms of his release from federal prison, and he now appeals that sentence. We will 

affirm the judgment of the District Court.

I.

We write solely for the parties and will therefore recount only those facts that are 

essential to our disposition. In June 2006, Perez was sentenced to 41 months of 

imprisonment for committing wire fraud in violation of federal law. While on supervised 

release, he was arrested for stealing a credit card machine. He was convicted and 

sentenced by the State of New Jersey. The District Court held a hearing because Perez’s 

commission of the state crime violated his terms of supervised release from federal 

prison. Perez pled guilty to the violation. The probation office determined that Perez had 

a Category VI criminal history score, and that the state court conviction constituted a 
3

Grade A violation. Based on these calculations, it concluded that Perez’s advisory 

Guidelines range was 33 to 41 months. 

The parties agree that the District Court erred in finding that Perez’s state court 

conviction was a Grade A violation and therefore miscalculated his Guidelines range. 

Because the offense was actually a Grade B violation, the range (before considering the 

statutory maximum) should have been 21 to 27 months. U.S.S.G. § 7B1.4(a). Therefore, 

after taking the 24 month maximum pursuant to 18 U.S.C. § 3583(e)(3) into account, 

Perez’s correct range was 21 to 24 months. The District Court imposed a sentence of 24 

months.

II.1

Because Perez failed to object to the District Court’s incorrect application of the 

Guidelines, we review for plain error. United States v. Marcus, 130 S. Ct. 2159, 2164 

(2010); Fed. R. Crim. P. 52(b). In reviewing for plain error, we 

may, in [our] discretion, correct an error not raised at trial only where the 

appellant demonstrates that: (1) there is an error; (2) the error is clear or 

obvious, rather than subject to reasonable dispute; (3) the error affected the 

appellant’s substantial rights, which in the ordinary case means it affected 

the outcome of the district court proceedings; and (4) the error seriously 

affects the fairness, integrity or public reputation of judicial proceedings. 

Id. (quotation marks omitted).

The Government concedes that the District Court committed a clear or obvious 

error, but the parties dispute whether the error affected Perez’s substantial rights. To 

 

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate 

jurisdiction pursuant to 18 U.S.C. § 3742(a).
4

meet the that criterion, a defendant must show that there is “a reasonable probability that 

the error affected the outcome” of the proceeding. Id.

We conclude that Perez has failed to demonstrate a reasonable probability that the 

District Court’s error affected his sentence. His sentence was statutorily capped at 24 

months and, absent a variance or a departure, he could, at best, have hoped for a sentence 

of 21-23 months. The District Court, however, highlighted “the numerous prior 

convictions that exist” on Perez’s record, calling them “very serious matters.” Appendix

37. The District Court also declined to impose a sentence concurrent to the one Perez 

was already serving, stating that doing so “would be minimizing the severity of [the 

criminal] behavior;” instead, the District Court concluded that only a consecutive 

sentence would “reflect the seriousness of what occurred,” considering Perez’s “history 

and characteristics.” Id. Furthermore, Perez presented no compelling case for a lenient 

sentence, arguing only for “some form of leniency . . . for [the] admission to the offenses 

and acceptance of responsibility.” Id. 34. Based on this record, we cannot conclude that 

Perez has demonstrated a reasonable probability that the District Court’s error affected 

his sentence.

We also reject Perez’s challenge to the substantive reasonableness of his sentence.

III.

For the foregoing reasons, we will affirm the judgment of the District Court.