When it comes to robbing banks, it pays to be nice. At least that was the case for a South Florida bank robber whose conviction was recently vacated on appeal. Because he minded his manners, his case will be sent back to district court for resentencing.
On March 21, 2017, Roberto Arturo Perez robbed a Chase branch in Tamarac, court documents say. Perez "bargained pleasantly" with a teller for $5,000 in cash. He handed her a note that read, in part, "Stay calm. Do this and no one will get hurt. Press the alarm after I walk out. I have kids to feed. Thanks."
Days later, Perez gave another teller a similar note when trying to rob a Wells Fargo branch in North Miami Beach. The employee stalled until police arrived and arrested him. Perez had no weapon during the incidents and didn’t make any death threats against employees or customers.
Perez pleaded guilty to bank robbery and attempted bank robbery in June 2017. Under federal sentencing guidelines, he should have served 37 to 46 months in prison, but a probation officer recommended Perez's sentence be enhanced because he made a death threat when he wrote "no one will get hurt." Perez objected to the enhancement, but his sentencing recommendation was increased to 46 to 57 months.
Ultimately, a judge sentenced Perez to 46 months — a little less than four years — in prison. The district court, focusing on the tellers' reactions to the letters instead of what Perez said and did during the robbery, found that his notes must have instilled fear in the bank employees.
Perez appealed. He argued that the court was wrong to increase his sentence for a death threat he didn't make. A panel of judges of the 11th Circuit District Court of Appeals agreed.
"Of course, there's no such thing as a good bank robbery," reads an opinion on Perez's case published last week and first reported by Bloomberg Law. "But from the perspective of the Sentencing Guidelines, there are certainly less bad ones."
All bank robberies involve threats of violence whether explicit or implicit, the opinion says, but defendants are sentenced more harshly when they make threats of death. The appellate judges found that Perez's "polite" words and actions didn't instill a reasonable fear of death and that Perez's robberies were of the "less bad variety."
"The idea is, you want the punishment to fit the crime," says Ricardo Bascuas, an appellate attorney and professor at the University of Miami School of Law. "And you have to consider how the crime was committed, not just which crime was committed."
Bascuas, who represented Perez on appeal along with the federal public defender's office, used to teach a clinic at the law school and co-wrote with his students a brief about Perez's case. The brief argues there was no evidence to support a sentencing enhancement.
Perez will likely receive a lesser sentence now that his case is back in district court. But if you think the appeal court's opinion will encourage bank robbers to play a little nicer, Bascuas says that isn't the case.
"This isn't a major precedent," he says. "It just confirms that sentences have to be based on the facts the government can prove, and if the government can't prove those facts, then they're not facts."