               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0424n.06

                                         No. 15-3527

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                               Jul 28, 2016
UNITED STATES OF AMERICA,                            )                    DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )   ON APPEAL FROM THE UNITED
v.                                                   )   STATES DISTRICT COURT FOR
                                                     )   THE NORTHERN DISTRICT OF
MOISES PEREZ,                                        )   OHIO
                                                     )
       Defendant-Appellant.                          )
                                                     )
                                                     )


       BEFORE: GILMAN, WHITE, and STRANCH, Circuit Judges.


       PER CURIAM. Moises Perez challenges his 210-month sentence imposed pursuant to

the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), arguing that his Ohio conviction

for attempted intimidation is not a proper ACCA predicate.

       Perez pleaded guilty without a plea agreement to possession of firearms and ammunition

by a felon, in violation of 18 U.S.C. § 922(g)(1). (RE 1, Page ID ## 1-2; 1/27/15 Minutes of

Proceedings). The presentence report designated Perez as an armed career criminal pursuant to

the ACCA, identifying the following prior convictions as predicate offenses: (1) a 1987 New

York conviction for robbery, (2) a 2005 Ohio conviction for attempted intimidation, (3) a 2005

Ohio conviction for attempted felonious assault, and (4) 2011 Ohio convictions for burglary and

attempted felonious assault.   (RE 22, Page ID ## 86, 90-91, 94). The presentence report

calculated a guidelines range of 180 to 210 months of imprisonment based on a total offense
No. 15-3527
United States v. Perez

level of 30, a criminal history category of VI, and the ACCA’s 15-year mandatory minimum

sentence. (Id. Page ID # 99). Perez objected to the use of his convictions for robbery and

attempted intimidation as predicate offenses under the ACCA, and the district court overruled

Perez’s objections.1 (RE 25, Page ID ## 119-21; RE 37, Page ID ## 218-22). The district court

sentenced Perez to 210 months of imprisonment based on two factors: (1) his trafficking of

firearms, rather than mere possession, and (2) his lengthy criminal history, which established a

criminal-history category of VI even without the armed-career-criminal designation. (RE 30,

Page ID # 183; RE 37, Page ID ## 237-39).

       The ACCA requires a mandatory minimum sentence of 15 years for a defendant

convicted of violating 18 U.S.C. § 922(g) who has three prior convictions for violent felonies or

serious drug offenses. 18 U.S.C. § 924(e)(1). On appeal, Perez contends that his conviction for

attempted intimidation does not constitute a violent felony under the ACCA, but concedes that

three other convictions trigger application of the ACCA’s sentencing enhancement. (Appellant’s

Br. 10). Because the ACCA requires only three predicate offenses, we need not address whether

Perez’s conviction for attempted intimidation constitutes a violent felony. See United States v.

Bailey, 634 F. App’x 473, 477 (6th Cir. 2015) (declining to consider the defendant’s “alternative

arguments about whether his other convictions qualify as violent felonies” where the district

court properly found that three prior convictions constituted violent felonies). Perez argues that

if his conviction for attempted intimidation does not qualify as a violent felony, he is entitled to a

new sentencing hearing because the district court would be considering a defendant with three

rather than four predicate offenses under the ACCA. However, the record demonstrates that the

district court based Perez’s sentence on his overall criminal history rather than the number of

1
  Perez challenges only the attempted intimidation conviction on appeal. He agrees that the
robbery conviction constitutes a predicate offense.
                                                -2-
No. 15-3527
United States v. Perez

predicate offenses under the ACCA, and the district court’s imposition of a within-guidelines

sentence on that basis was not an abuse of discretion. See Gall v. United States, 552 U.S. 38, 41,

52–53 (2007). (RE 37, Page ID ## 238-39).

       Accordingly, we AFFIRM Perez’s sentence.




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