In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 19-1448 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee

v.

DAVID PEREZ, 

Defendant-Appellant

____________________ 

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. 

____________________ 

ARGUED OCTOBER 27, 2020 — DECIDED DECEMBER 23, 2021 

____________________ 

Before SYKES, Chief Judge, and KANNE and ST. EVE, Circuit 

Judges. 

SYKES, 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 out acts of violence, 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. 19-1448 

and possessing a firearm as a felon, id. § 922(g)(1). The 

district judge sentenced him to concurrent terms of 

336 months and 120 months in prison, respectively—below 

the advisory range under the Sentencing Guidelines. 

Perez challenges his sentence on two grounds. He first 

argues that the judge incorrectly held that the attemptedmurder predicate for the RICO violation increased the 

maximum penalty on that count to life in prison under 

18 U.S.C. § 1963(a). He 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” an act of racketeering that is

punishable by life imprisonment under state law—

discharging a firearm in an attempted murder—a predicate 

act that raised the applicable maximum penalty from 

20 years to life under § 1963(a). See United States v. Brown, 

973 F.3d 667, 709 (7th Cir. 2020). The 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 Guidelines 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 leaders—the older members or 

“Junior” circle and the younger members or “Shorty” circle. 

At various points during his membership, Perez held several 

leadership positions, including the “Inca” of the Shorty 

circle—essentially its president. See, e.g., United States v. 

Porraz, 943 F.3d 1099, 1101 (7th Cir. 2019). As Inca, Perez 

recruited new members, enforced dues obligations, directed 

the use of armed patrols, ordered violent beatings to punish 

gang members, and instructed members to commit acts of 

violence.

On May 10, 2014, the Junior circle ordered the murder of 

Victim 1, a runaway former gang member. Perez saw 

Victim 1 at a restaurant 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 colostomy bag for the rest of his life. 

In 2016 a federal grand jury returned an indictment 

charging Perez and 14 other gang members with racketeering 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 enterprise, 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 to 
4 No. 19-1448 

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 

the act. He further stipulated, and the district judge found,

that the facts of the attempted murder were proven beyond a 

reasonable doubt. 

Punishments for RICO violations are typically capped at 

20 years in prison, but the maximum increases to life imprisonment when a “violation is based on a racketeering activity 

for 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 turns 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 argued that 

the maximum remained 20 years because under Illinois law 

attempted murder carries a maximum life sentence only if 

the defendant “personally discharged a firearm that proximately caused great bodily harm.” 720 ILL. COMP. STAT. 

5/8-4(c)(1)(D). It’s undisputed that Perez did not personally 

fire the shots at Victim 1, so he argued that the maximum 

sentence could not be enhanced under § 1963(a). 

The judge disagreed, reasoning that Perez faced a statutory maximum of life on Count 1 because sentences for 
No. 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. That is, the attempted murder of Victim 1 was a predicate racketeering act attributable 

to all members of the conspiracy. 

In his sentencing memorandum and again at the sentencing hearing, Perez asked the court to consider the sentences 

of coconspirators Jose Pena and Ulises De La Cruz when 

determining his sentence. Pena was sentenced to 96 months

on Count 1, and De La Cruz was sentenced to 210 months 

for the same count. 

After considering the factors set forth in § 3553(a), the 

judge sentenced Perez to concurrent terms of 336 months 

and 120 months on Counts 1 and 16, respectively—below the 

Guidelines 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 Victim 1, the culture of fear created by 

the Latin Kings, and the need for general deterrence. Balancing these considerations, the judge concluded that “the 

guideline range is about right in this case,” but she imposed 

a sentence below that range in recognition of Perez’s “genuine and heartfelt” acceptance of responsibility.

The 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. 19-1448 

II. Discussion 

Perez challenges the judge’s ruling regarding the statutory maximum penalty for the RICO conviction 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 Eligibility 

As we’ve noted, the statutory maximum sentence for a 

RICO offense is ordinarily 20 years, but the maximum 

increases to life “if the violation is based on a racketeering 

activity for which the maximum penalty includes life imprisonment.” § 1963(a). Perez reprises the argument he made 

below that the enhanced maximum does not apply here 

because attempted murder is punishable by life in prison

under Illinois law only when the defendant “personally 

discharged a firearm that proximately caused great bodily 

harm.” 730 ILL. COMP. STAT. 5/5-8-1(a)(1)(d)(iii);

§ 5/8-4(c)(1)(D). It’s undisputed that Perez ordered the killing 

of Victim 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 misunderstands 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 therefore 

correctly framed the question and likewise correctly answered it. The RICO violation was based in part on the 
No. 19-1448 7 

predicate racketeering act of attempted murder—that is, a

coconspirator’s attempt to kill Victim 1 by shooting him, 

causing great bodily harm. Under Illinois law, that version of 

attempted murder is punishable by life imprisonment. 

We 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 murders. Illinois law authorizes a 

sentence of life imprisonment for first-degree murder when 

certain aggravating factors are present. 730 ILL. COMP. STAT. 

5/5-4.5-20(a), 5/5-8-1; 720 ILL. COMP. STAT. 5/9-1(a) & (b). Like 

Perez, the defendants maintained that their maximum 

sentences should have been capped at 20 years notwithstanding these predicates. Their 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 the argument, explaining that “section 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 mattered, 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 “based on” predicate acts of racketeering that included a coconspirator’s attempted murder of 

Victim 1 by discharging a firearm and causing great bodily 
8 No. 19-1448 

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

Illinois law. The judge properly applied the enhanced maximum penalty 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 argued that both codefendants were responsible 

for more criminal conduct 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 on the 

firearm count is concurrent.)

As an initial matter, this argument is waived. After announcing the sentence, the judge twice asked Perez’s counsel

if there were other issues she had overlooked. First, she 

asked: “Are there other issues you feel I haven’t addressed or 

any other recommendations you think I should make?” 

Counsel raised a point about his client’s prison assignment 

but did not mention sentencing disparities. After a bit more 

discussion, the judge inquired 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 opportunities 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 meritless. We have 

held that the Sentencing Guidelines “are themselves an antidisparity formula.” United States v. Blagojevich, 854 F.3d 918, 

921 (7th Cir. 2017). Because the judge “correctly calculated 

and carefully reviewed the Guidelines range, [she] 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 Guidelines range, as this one is, “necessarily complies with § 3553(a)(6).” Sanchez, 989 F.3d at 541 

(emphasis added) (internal quotation marks omitted). 

AFFIRMED