PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 19-1469 UNITED STATES OF AMERICA v. LESANDRO PEREZ, also known as TOAST, Appellant Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action Nos. 2-17-cr-00596-001; 2-17-cr- 00597-001 and 2-17-cr-00599-001) District Judge: Honorable Robert F. Kelly Argued on January 26, 2021 Before: AMBRO, SHWARTZ, AND BIBAS, Circuit Judges (Opinion filed: July 22, 2021) Christy Martin, Esq. (Argued) Federal Community Defender Office for the Eastern District of Pennsylvania 601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106 Counsel for Appellant Sarah Damiani, Esq. Bernadette A. McKeon, Esq. Robert A. Zauzmer, Esq. (Argued) Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Counsel for Appellee ____________ OPINION OF THE COURT ____________ AMBRO, Circuit Judge Lesandro Perez pled guilty to federal firearm and drug offenses arising from, among other things, selling guns to an undercover law enforcement officer. The Sentencing Guidelines recommended between 84 and 105 months’ imprisonment for Perez’s crimes. But at the Government’s urging, the District Court applied a sentencing enhancement that brought Perez’s recommended prison time up to 121 to 2 151 months. The reason? The undercover officer observed that Perez had guns and drugs together in the same room. We now decide whether the mere physical proximity between guns and drugs is enough to justify the significant increase in Perez’s Guidelines range. We hold that it is not. While the Commentary to the Guidelines, on which the District Court relied, deserves deference, we are persuaded that the Court misapplied it in this instance. We believe the Commentary creates a rebuttable presumption, rather than a bright-line rule, that the enhancement should apply when a defendant possesses guns and drugs together. We therefore vacate the District Court’s judgment and sentence and remand for further proceedings. I. BACKGROUND Over a six-month period in 2017, Perez sold firearms and controlled substances to various confidential informants and undercover officers. On March 9, 2017, he sold two firearms to an undercover officer. 1 Perez kept those guns under a mattress in the room where he conducted the transaction. During it the officer observed drugs, drug- packaging materials, and drug paraphernalia in the same room as the two guns. Perez was later charged in three separate indictments in the Eastern District of Pennsylvania, all involving sales of guns or drugs. One of the indictments concerned the March 9th 1 Perez also sold a third firearm that day to the undercover officer at another location, but that transaction is not at issue here. 3 transaction. Perez ultimately pled guilty to all three indictments. The Sentencing Guidelines range was 121 to 151 months, based on a total offense level of 29 and a criminal history of IV. This calculation included a four-level enhancement per U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (U.S. Sentencing Comm’n 2016), which applies when the defendant “used or possessed any firearm . . . in connection with another felony offense.” While there …
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