### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1448
U NITED S TATES OF A MERICA , Plaintiff -Appell ee

v.

D AVID P EREZ , Defendant -Appell ant

____________________ Appeal from the United States District Court for the Northern District of Illinois , Eastern Division

. No. 16 CR 462 -6 — Rebecca R. Pallmeyer , Chief Judge

.

____________________
A RGUED O CTOBER 27, 2020

— D ECIDED D ECEMBER 23, 2021

____________________

Before S YKES , C hief Judge , and K ANNE and S T

. E VE , Circuit Judges

. S YKES , Chief Judge

. David Perez was a member of the Latin Kings street gang in Maywood, Illinois, and served in several leadership positions in which he ordered or personally carried ou t acts of violen ce, including the attempted murder of a former gang member

. He pleaded guilty to conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d),2 No. 1 9-1448

and possessi ng a firearm as a felon, id. § 922(g)(1). The distric t judge sentenced him to concurrent terms of 336 months and 120 months in priso n , respectively

— below the advisory range under the Sentencing Guidelines

. Perez challenges his sentence on two grounds. H e first argues that the judge incorrectly held that the attempted

murder predicate for the RICO violation increased the maximum penalty on that count to life in prison under 18 U.S.C. § 1963(a). H e also contends that the judge committed a procedural error by failing to consider his argument under 18 U.S.C. § 3553(a)(6) about the need to avoid unwarranted sentencing disparities with similarly situated defendants

. We affirm. The judge correctly determined that the RICO violation was “based on” a n act of racketeering that is punishable by life imprisonment un der state law

— discharging a firearm in an attempted murder

— a predicate
act that rais ed the applicable maximum penalty from 20 years t o life under § 1963(a). See United States v. Brown , 973 F.3d 667, 709 (7th Cir. 2020). T he argument about unwarranted sentencing disparities is both waived and meritless

. It is waived because at sentencing the judge twice asked Perez ’s counsel whether he was satisfied with the court’s explanation of the sentence , and both times counsel failed to mention any § 3553(a)(6) concerns

. Waiver aside, a sentence within or below a properly calculated G uidelines range necessarily complies with § 3553(a)(6). United States v. Sanchez , 989 F.3d 523, 540–41 (7th Cir. 2021 ).No. 19-1448 3

I. Background From 2004 to 2008, and again from 2012 to 2015, David Perez was a member of the Latin Kings street gang operating in the Village of Maywood just west of Chicago

. The Maywood branch of the gang was divided into two “circles,” each with its own set of leader s— the older members or “J unior” circle and the younger members or “Shorty” circle. At various points during his membership, Perez held several leadership positions , i ncluding the “ Inca ” of the Shorty circle

— essentially its president

. See , e.g. , U nited States v. Porraz , 943 F.3d 1099, 1101 (7th Cir. 2019). As Inc a, Perez recruited new members, enforced dues obligations, directed the use of armed patrols , ordered violent beatings to punish gang members , and instruct ed members to commit acts of violence.
O n May 1 0, 2014, the Junior circle ordered the murder of Victim 1, a runaway former gang member. Perez saw Victim 1 at a restaur ant in Melrose Park on Mother’s Day, May 11 . He alerted other gang members , who came to the

scene and shot Victim 1 multiple times in the stomach and chest

. The victim survived but suffered permanent colon damage and requires a colo stomy bag for the rest of his life.
In 2016 a federal grand jury returned an indictment charging Perez and 14 other gang member s with racke teering and other offenses related to their participation in the Maywood Latin Kings . Perez was charged in nine counts, including racketeering conspiracy, conspiracy to commit murder in aid of the racketeering enterprise, attempted murder in aid of the ent erprise, assault with a dangerous weapon in aid of the enterprise, and four counts of unlawful possession of a firearm by a felon. He pleaded guilty to4 No. 1 9-1448

racketeering conspiracy , see § 1962(d) (Count 1), and unlawful possession of a firearm by a felon , see § 922(g)(1) (Count 16 ).
Perez did not admit in his plea declaration to facts surrounding the attempted murder of Victim 1 , but he later stipulated that he participated in the murder

— indeed, he ordered and agreed with other gang members to carry out th e act. He further stipulated , and the district judge found, that the facts of the attempted murder were proven beyond a reasonable doubt

. Punishment s for RICO violations are typically capped at 20 years i n prison , but th e maximum increases to life imprisonment when a “ violation is based on a racketeering activityfor which the maximum penalty includes life imprisonment.” § 1963(a). Because RICO defines “racketeering activity” as “any act ... chargeable under State law,” 18 U .S.C. § 1961(1), the applicable statutory maximum often turn s on state law. The parties disagreed about whether the attempted murder of Victim 1 increased Perez’s statutory maximum on Count 1 to life in prison under § 1963(a). Perez argu ed that the maximum remained 20 years becaus e under Illinois law attempted murder carries a maximum life sentence only if the defendant “personally discharge d a firearm that proximately caused great bodily harm .” 720 I LL

. C OMP

. S TAT

. 5/8- 4(c)(1) (D)

. It’s undisputed that Perez did not personally fir e the shots at Victim 1 , so he argued that the maximum sentence c ould not be enhanced under § 1963(a).
The judge disagreed , reasoning that Perez faced a statutory maximum of life on Count 1 because s entence s forNo. 19-1448 5

RICO conspiracies do not hinge on acts committed by a specific defendant; rather, they reflect the operation of the criminal enterprise as a whole. Th at is, th e attempted murder of Victim 1 was a predicate racketeering act attributable to all members of the conspiracy

. In his sentencing memo randum and again at the sentencing hearing , Perez asked the court to consider the sentences of coconspirator s Jose Pe na and Ulises De L a Cruz when determining his sentence

. Pe na was sentenced to 96 months on Count 1 , and De L a Cruz was sentenced to 210 months for the same c ount

. After considering the factors set forth in § 3553(a), the judge sentenced Perez to concurrent term s of 336 months and 120 months on Counts 1 and 16 , respectively

— below the Guideli nes range of 360 months to life . The judge characterized Perez’s participation in the conspiracy as “shocking and horrifying,” finding that he had engaged in “hideous, stupid, [and] meaningless violence.” The judge considered the permanent injuries to Vict im 1, the culture of fear created bythe Latin Kings, and the need for general deterrence. Balancing these considerations, the judge concluded that “ the g uideline range is about right in this case ,” but s he imposed
a sentence below th at range in recognitio n of Perez’s “genuine and heartfelt” acceptance of responsibility.

T he judge twice asked Perez’s counsel if there were any issues she had overlooked or should address

. Counsel requested his client’s placement in a particular Bureau of Prisons facility but did not mention sentencing disparities

— either generally or with respect to coconspirators Pena and De La Cruz in particular

.6 No. 1 9-1448

II. Discussion Perez challenges the judge’s ruling regarding the statutory maximum pe nalty for the RICO co nviction and her failure to address his argument about unwarranted sentencing disparities

. We review claims of legal and procedural error de novo. United States v. Durham , 766 F.3d 672, 685 (7th Cir. 2014 ). A. Life Sentence Eligibilit y As we’ve noted, the statutory maximum sentence for a RICO offense is ordinarily 20 years , but the maximum increas es to life “if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.” § 1963(a). Perez reprises the argu ment he made below that the enhanced maximum does not apply here because attempted murder is punisha ble by life in prison under Illinois law only when the defendant “personally discharged a firearm that proximately cause d great bodily harm .” 730 I LL

. C OMP

. S TAT . 5/5-8-1(a) (1)(d) (iii); § 5/8- 4(c)(1)(D). It’s undisputed that Perez order ed the killing of Vi ctim 1 but did not personally fire the gun. So , Perez

reasons , the statutory maximum for his RICO conspiracy conviction remained capped at 20 years because his violation
was not “ based on ” a predicate act for which the maximum penalty under state law includes life imprisonment. This argument mis understands the language and operation of § 1963(a)

. The proper inquiry is whether the RICO “violation”

— here, conspiracy

— was based on a predicate crime punishable by life imprisonment

. The judge thereforecorrectly framed the question and likewise correctly answered it. The RICO violation was based in part on theNo. 19-1448 7

predicate racketeering act of attempted murder

— that is, a coconspirator ’s attempt to kill Victim 1 by shoo ting him , causing great bodily harm. Under Illinois law, that version of attempted murder is punishable by life imprisonment.

W e addressed a similar argument in United States v. Brown , 973 F.3d 667 (7th Cir. 2020). There, the defendants

were members of a street gang and were convicted of RICO conspiracy predicated on racketeering acts that included multiple first

- degree murder s . Illinois law authorizes a sentence of life imprisonment f or first

- degree murder when certain aggravating factors are present . 730 I LL

. C OMP

. S TAT

. 5/5-4.5-20(a) , 5/5 -8-1 ; 720 I LL

. C OMP

. S TAT . 5/9-1 (a) & (b)

. Like Perez, t he d efendants maintained that their maximum sentences should have been capped at 20 years notwithstanding these predicates. T heir reasoning was slightly different : they argued that because the RICO statute criminalizes the agreement to commit an act, not the act itself , the relevant state analogue was conspiracy, which under Illinois law is not punishable by life imprisonment

. Brown , 973 F.3d at 709. We rejected th e argument , explaining that “s ection 1963 requires that the ‘violation’

— in this case, the conspiracy

— be ‘based on a racketeering activity for which the maximum penalty includes life imprisonment. ’” Id. What matter ed, we said , was that “[t] he defendants’ conspiracies were all based

on murders for which the maximum penalty includes life imprisonment.” Id.
The same conclusion follows here. Perez’s RICO violation

— conspiracy

— was “ base d on ” predicate acts of racketeering that included a coconspirator ’s attemp t ed murder of Victim 1 by discharging a firearm and causing great bodily8 No. 1 9-1448

harm , which is a crime punishable by life in prison under Illinois law

. T he judge properly applied the enhanced maximum p enalty under § 1963(a). B. Sentencing Disparities Perez also argues that the judge procedurally erred by failing to consider his argument under § 3553(a)(6) about the need to avoid unwarranted disparities between similarly situated defendants. He pointed to codefendants Pena and De La Cruz, who were sentenced to 96 months and 210 months, respectively, for their involvement in the conspiracy. He a rgued that both codefendants were responsible for more criminal co nduct and were ranked higher than Perez within the Latin Kings

. The judge passed over this argument, though she imposed a below

- Guidelines sentence of 336 months on the conspiracy count in recognition of Perez’s expression of remorse . ( The 120- month term o n the firearm count is concurrent.) As an initial matter, this argument is waived . A fter announcing the sentenc e, the judge twice asked Perez’s counsel if there were other issues she had overlooked. First, s he asked : “Are there other issues you feel I haven’t addressed or any other recommendations you think I should make?” C ounsel raised a point about his client’s prison assignment but did not mention sentencing disparities. A fter a bit more discussion, the judge inqu ired again : “Are there other issues?” Perez’s counsel still did not mention any sentencing disparities. The judge thus gave counsel not one but two meaningful opportunities to identify any overlooked arguments. The failure to make use of those opportunitie s is a waiver. United States v. Garcia

- Segura , 717 F.3d 566, 569 (7th Cir. 2013).No. 19-1448 9

Even if not waived , the argument is meritles s. We have held that t he Sentencing Guidelines “are themselves an anti

disparity formula.” United States v. Blagojevich , 854 F.3d 918, 921 (7th Cir. 2017 ). B ecause the judge “correctly calculated and carefully reviewed the Guidelines range, [ s he] necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.” Gall v. United States , 552 U.S. 38, 54 (2007). Thus, a sentence below or within a properly calculated G uidelines range , as this one is , “ necessarily co mplies with § 3553(a)(6).” Sanchez , 989 F.3d at 541 (emphasis added) (internal quotation marks omitted)

. A FFIRMED