## 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

____________ 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Submitted: February 12, 2024 Filed: May 28, 2024 [Unpublished]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. § 2252 A(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, 62 6– 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 court 2 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 d oing 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

. S ee 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, 49 3–95 (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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