United States of America v. Aaron David Perez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AARON DAVID PEREZ,
Defendant-Appellant.
No. 17-10216
D.C. No.
4:16-cr-00223-JSW-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted June 14, 2018
Submission Vacated July 11, 2018
Resubmitted July 3, 2019
San Francisco, California
Before: SILER,** PAEZ, and IKUTA, Circuit Judges.
FILED
JUL 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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Aaron Perez appeals the district’s court denial of his motion to dismiss his
federal indictment and his sentence of 61 months’ imprisonment, followed by three
years of supervised release. We have jurisdiction under 28 U.S.C. § 1291.1
Because the Supreme Court has reaffirmed the dual sovereignty doctrine, see
Gamble v United States, No. 17-646 (June 17, 2019), we reject Perez’s argument
that the Double Jeopardy Clause barred the United States from prosecuting him.
We have declined to extend Padilla v. Kentucky, 559 U.S. 356 (2010),
beyond the Sixth Amendment context, see United States v. Delgado-Ramos, 635
F.3d 1237, 1241 (9th Cir. 2011), thus fatally undercutting Perez’s argument that
Padilla establishes a general rule that the federal government has a duty to warn a
defendant in the successive prosecution context. Nor does Perez point to any other
opinion supporting his argument that the government violated his due process
rights by failing to warn him during state court proceedings that it planned to
undertake a federal prosecution, and we have not found one. Accordingly, we
reject this claim.
Finally, the district court did not procedurally err in its treatment of Perez’s
evidence of purported racial disparities in successive prosecutions. The court did
1 We address the remaining issues in a concurrently filed opinion, United
States v. Perez, ___ F. 3d. ___ (9th Cir. 2018).
2

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not abuse its discretion in holding that any conclusion of widespread racial
disparity based on Perez’s “anecdotal information,” about four successive
prosecutions involving African American defendants over a five year period,
would be “speculation,” as there “may be a myriad of reasons” why an individual
defendant is subject to successive prosecution.
AFFIRMED.
3

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