            Case: 13-13868   Date Filed: 05/02/2014   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13868
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:07-cr-20714-CMA-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

RENE GONZALEZ PEREZ,
a.k.a. Pipo,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                               (May 2, 2014)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      After a jury trial, Rene Gonzalez Perez appeals his total 126-month sentence

for conspiring to commit robbery of a check cashing store and of a drug-

trafficker’s stash house (Counts 1 and 5) and for attempted robbery of that stash

house (Count 6), all in violation of 18 U.S.C. § 1951(a), and for carrying a firearm

during and in relation to, and possessing the firearm in furtherance of, a crime of

violence, namely the planned and attempted robbery of the stash house (Count 7),

in violation of 18 U.S.C. § 924(c)(1)(A).

      This is Perez’s third appeal of his sentence. In each of Perez’s two prior

appeals, this Court vacated Perez’s sentence and remanded for resentencing. We

remanded the first time because the district court had failed to afford Perez an

opportunity to allocute before imposing a 140-month sentence. See United States

v. Perez, 661 F.3d 568, 582-86 (11th Cir. 2011). We remanded the second time

because the district court improperly applied a three-level dangerous-weapon

guidelines enhancement before imposing a 131-month sentence. See United States

v. Perez, 519 F. App’x 525, 527-29 (11th Cir. 2013).

      In this third appeal, Perez contends that the district court: (1) violated his

due process rights by relying on unreliable information that the prosecutor

vindictively presented (at the third sentencing hearing) in retaliation for Perez

successfully pursuing the two prior appeals of his sentence; and (2) erred as a

matter of law when it refused to consider Perez’s post-sentencing rehabilitation as


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a mitigating sentencing factor. After review, we affirm Perez’s 126-month

sentence.

       The district court did not violate Perez’s due process rights by imposing a

126-month sentence. Notably, Perez does not contend that the district court acted

vindictively; indeed Perez affirmatively disclaimed such an argument in the district

court. Instead, Perez contends that the prosecutor’s arguments for a higher

sentence were vindictive. Perez, however, cites no authority suggesting that a

prosecutor’s vindictive motivation for making sentencing arguments, by itself,

invalidates the district court’s otherwise proper sentence.

       In any event, to the extent Perez argues that the district court’s sentence was

vindictive, Perez received a lower sentence at his third sentencing hearing (126

months) than he received at his previous two sentencing hearings (140 months and

131 months).1 Because the district court imposed a lighter sentence, Perez’s due

process claim fails. See United States v. Stinson, 97 F.3d 466, 468-70 (11th Cir.

1996) (explaining that for purposes of a claim of vindictive resentencing, “Due


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         Specifically, at his first sentencing, Perez received concurrent 80-month sentences for
the three robbery offenses, 9 months above the advisory guidelines of 57 to 71 months, plus a
mandatory, consecutive 60-month sentence for the firearm offense, for a total of 140 months. At
his second sentencing, Perez received concurrent 71-month sentences for the robbery offenses,
the top of the same advisory guidelines range of 57 to 71 months, plus the 60-month consecutive
sentence for the firearm offense, for a total of 131 months. At his third sentencing, the district
court recalculated Perez’s advisory guidelines range (without a three-level dangerous weapon
guidelines enhancement) as 46 to 57 months. This time, Perez received concurrent 66-month
sentences for the robbery offenses, 9 months above the new advisory guidelines range, plus the
60-month consecutive sentence for the firearm offense, for a total of 126 months.
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Process is implicated only if after the vacatur of a defendant’s sentences, the

district court imposes a harsher punishment,” and rejecting a due process claim

because the resentencing court imposed the same sentence (quotation marks

omitted)).

      To the extent Perez contends that the district court based his sentence on

unreliable information, Perez has not met his burden to show that the court

“explicitly relied” on the allegedly unreliable information. See United States v.

Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010) (explaining that to show his due

process rights were violated, the defendant bears the burden to show that the

sentencing court “explicitly relied” on unreliable or false information) (quotation

marks omitted). During the third sentencing hearing, the prosecutor argued that

one reason the district court should reimpose a 131-month sentence was Perez’s

dangerousness. The prosecutor pointed out that Perez was recorded bragging

about his involvement in other robberies and that Perez was a member of a

dangerous group. The prosecutor further contended that Perez’s bragging was not

merely bluster because one of the people Perez recruited to commit the charged

stash-house robbery brought a stolen firearm that was used in a home invasion in

which a person was beaten, cut with a knife, waterboarded, and electrocuted. The

prosecutor acknowledged, however, that Perez was not charged with that home




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invasion robbery and could not be included or excluded based on DNA found on

masks recovered at the scene of that home invasion.

      Even assuming arguendo that the prosecutor’s discussion of the uncharged

home invasion constituted unreliable or false information, the district court did not

mention that information in explaining its reasons for imposing Perez’s 126-month

sentence. The district court stressed Perez’s “dangerous propensities that [he]

showed in his communications and in his actions.” However, this reference was

not to the uncharged home invasion, but rather to Perez’s own conduct in the

charged offenses, which included: (1) presenting himself to his co-conspirators as

an experienced criminal who had successfully committed other robberies using

guns and tying people up; (2) taking an active role in planning the robberies,

including when and how to use force; (3) agreeing to be one of the conspirators

who would use force during the robberies; and (4) recruiting others to help him

obtain weapons, such as pepper spray, knives, and guns, and to use force with him.

Under the circumstances, Perez has not shown any reliance, much less an explicit

reliance, on the prosecutor’s statements about the uncharged home invasion.

      Finally, there is no merit to Perez’s claim that the district court believed it

was barred from considering Perez’s post-sentencing rehabilitation. In Pepper v.

United States, the Supreme Court held that a district court, at a resentencing

hearing, “may consider evidence of a defendant’s rehabilitation since his prior


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sentencing,” but is not required to reduce the defendant’s sentence upon a showing

of post-sentencing rehabilitation. 562 U.S. ___, 131 S. Ct. 1229, 1241, 1249 n.17

(2011).

      Here, the district court’s comments as a whole indicate that the court

believed it was inappropriate, rather than unauthorized, to impose a sentence

within the guidelines range based on Perez’s post-sentence rehabilitation. The

district court made clear that it did not consider Perez’s post-sentence rehabilitation

to be a compelling reason to impose a lower sentence in light of other 18 U.S.C.

§ 3553(a) factors, including the need to avoid sentencing disparities, promote

respect for the law, and reflect the seriousness of Perez’s conduct. The district

court was particularly concerned that a guidelines sentence for Perez would create

a sentencing disparity with his less culpable co-defendant, Roberto Davila. Davila

was recruited by Perez and was involved in only one of the two planned robberies,

but received a 120-month sentence. The district court stressed that the robberies

were planned in Perez’s home and that Perez played an active role in the scheme

and recruited others. In sum, the district court properly understood its authority

and, as permitted by Pepper, chose to give Perez’s rehabilitative conduct less

weight than other factors in resentencing him.

      AFFIRMED.




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