United States Court of Appeals

For the Eighth Circuit

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No. 23-2492

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United States of America

 Plaintiff - Appellee

v.

Vincent Michael Perez

 Defendant - Appellant

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Appeal from United States District Court

for the District of South Dakota - Northern

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Submitted: February 12, 2024

Filed: May 28, 2024

[Unpublished]

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Before SMITH, Chief Judge,1 BENTON and STRAS, Circuit Judges. 

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PER CURIAM. 

 After a jury found Vincent Perez guilty of two child-pornography offenses, 

see 18 U.S.C. § 2252A(a)(1), (2)(A), he received partially consecutive sentences 

1

Judge Smith completed his term as chief judge of the circuit on March 10, 

2024. See 28 U.S.C. § 45(a)(3)(A). 
-2- 

totaling 216 months. Although he argues that making any part of them consecutive

was an abuse of discretion, we affirm.

Perez’s total sentence was originally 46 months longer, but a sentencing error 

led to a remand. See United States v. Perez, 61 F.4th 623, 626–28 (8th Cir. 2023) 

(holding that an enhancement for “covered sex crime[s]” did not apply (quoting 

U.S.S.G. § 4B1.5(b)(1))). At resentencing, the district court2 shortened the sentence 

for each charge to 188 months. It then reached 216 months by making 28 months 

for one of them consecutive to the other.

Although complicated,3

 doing so was procedurally and substantively

reasonable. See United States v. Boyum, 54 F.4th 1012, 1015 (8th Cir. 2022) 

(reviewing the concurrent-versus-consecutive decision for an abuse of discretion). 

By statute, most criminal sentences can be concurrent, consecutive, or anything in 

between. See 18 U.S.C. § 3584(a) (exempting certain attempt offenses). The court 

went the partially consecutive route because of the “substantial danger” Perez posed 

to children and his failure to take responsibility. See Boyum, 54 F.4th at 1016

(affirming based on “a reasonable explanation for imposing the sentence 

consecutively”); see also 18 U.S.C. §§ 3553(a), 3584(b) (listing factors to consider). 

In the process, the district court mentioned the longer sentence it had imposed 

before, but only as a reminder of how it had previously weighed the statutory 

2

The Honorable Charles B. Kornmann, United States District Judge for the 

District of South Dakota.

3

To the extent the district court thought it could not simply vary upward on 

remand under 18 U.S.C. § 3742(g)(2), we note that the statutory restriction on 

selecting “a sentence outside the applicable guidelines range . . . is invalid after 

[United States v. Booker, 543 U.S. 220 (2005)].” Pepper v. United States, 562 U.S. 

476, 493–95 (2011) (citation omitted) (explaining that it would make the Sentencing 

Guidelines “effectively . . . mandatory in an entire set of cases”).
-3- 

sentencing factors, not as an “anchor” for the sentence it was about to announce. 

Nor did it rely on any other improper factor or commit a clear error of judgment. 

See United States v. Richart, 662 F.3d 1037, 1052, 1054 (8th Cir. 2011) (explaining 

that a district court can “var[y] based on factors already taken into account by the 

advisory guidelines” and “weigh[] the relevant factors more heavily than [a 

defendant] would prefer” (citation omitted)). We accordingly affirm the judgment 

of the district court.

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