United States v. Jose Gutierrez-Gomez

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 26, 2020
• Docket: 19-10382
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 26 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10382

Plaintiff-Appellee, D.C. No. 2:19-cr-00006-KJM-1 v.

JOSE ELFEGO GUTIERREZ-GOMEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Submitted October 20, 2020** San Francisco, California

Before: CLIFTON, N.R. SMITH, and R. NELSON, Circuit Judges.

Defendant Jose Elfego Gutierrez-Gomez appeals his conviction and sentence

for illegally reentering the United States in violation of 8 U.S.C. § 1326(a), (b)(2).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1. Gutierrez-Gomez argues that the district court erred by instructing the jury

that the term “reasonably near” had “no special, legal definition,” as that term

related to the Government’s burden to prove that Gutierrez-Gomez was found

unlawfully present in the United States on a date “reasonably near” the date alleged

in the indictment. Because Gutierrez-Gomez did not properly object to the district

court’s supplemental instruction, we review it for plain error. See United States v.

Varela, 993 F.2d 686, 688 (9th Cir. 1993).

Gutierrez-Gomez first contends that the jury should have been instructed to

consider several “constitutional factors” in determining whether the Government

proved that he was found in the United States on a date reasonably near the date

alleged in the indictment. Certainly, a substantial variance between the proof at

trial and the allegations of the indictment implicates the defendant’s Fifth

Amendment rights “not to be held to answer for a felony except on the basis of

facts which satisfied a grand jury that he should be charged[,] . . . to fair notice of

what he is accused of, and not to be twice put in jeopardy on the accusation.”

United States v. Tsinhnahijinnie, 112 F.3d 988, 992 (9th Cir. 1997). However, (1)

Gutierrez-Gomez does not dispute that he was informed as to the charges against

him, so as to be able to present his defense and not be taken by surprise by the

evidence at trial and (2) he was not likely to be subject to double jeopardy. A

2 reasonable jury could have (and did) convict him of being “found in” the United

States and “reasonably near” November 13.

Gutierrez-Gomez cites several of our decisions that have addressed whether

a variance between the date proved at trial and the date alleged in the indictment

was impermissible—i.e., whether the dates were “reasonably near”—and contends

that these decisions compose “a specialized legal definition of ‘reasonably near.’”

See United States v. Hinton, 222 F.3d 664, 672–73 (9th Cir. 2000); United States v.

Casterline, 103 F.3d 76, 78–79 (9th Cir. 1996); Lelles v. United States, 241 F.2d

21, 25 (9th Cir. 1957). However, it is not “so clear-cut” or “so obvious” from our

precedent that every application of a term is an essential component of the term’s

so-called special legal definition. See United States v. Gonzalez-Aparicio, 663 F.3d

419, 428 (9th Cir. 2011) (quoting United States v. Turman, 122 F.3d 1167, 1170

(9th Cir. 1997), abrogated on other grounds by Henderson v. United States, 568

U.S. 266, 277 (2013)). Nor is it “so clear-cut” or “so obvious” that a jury must be

instructed on every application of a term when the jury requests further instruction

on the term’s definition. See id. (quoting Turman, 122 F.3d at 1170).

However, even if the district court committed error (as Gutierrez-Gomez

suggests), his substantial rights were not affected, because there was not “a

significant possibility” of acquittal. See United States v. Brooks, 508 F.3d 1205,

3 1208 (9th Cir. 2007) (quoting United States v. Steward, 16 F.3d 317, 320 (9th Cir.

1994)). At trial, Gutierrez-Gomez conceded every element of the crime of illegal

reentry under 8 U.S.C. § 1326(a), (b)(2). His sole defense theory was that the

Government had failed to meet its burden to prove that Gutierrez-Gomez was

found in the United States on a date reasonably near the date alleged in the

indictment—“on or about November 13, 2018.” This theory relied entirely on his

argument that he had not been found unlawfully present in the United States by

immigration authorities until June 6, 2019, when the Government’s fingerprint

expert verified that Gutierrez-Gomez’s fingerprints taken at the county jail

matched those from the DHS file related to his 2012 removal. However, because

this argument finds no support in the trial evidence, there was not “a significant

possibility” of acquittal. See Brooks, 508 F.3d at 1208 (quoting Steward, 16 F.3d at

320). Therefore, there was no plain error. Id.

2. Gutierrez-Gomez argues that the district court erred in denying him a two-

level downward adjustment of his base offense level under the United States

Sentencing Guidelines for “clearly demonstrat[ing] acceptance of responsibility for

his offense.” See U.S. Sentencing Guidelines Manual § 3E1.1(a) (U.S. Sentencing

Comm’n 2018). “We review de novo whether the district court misapprehended the

law” in applying § 3E1.1(a), but whether a “defendant has accepted responsibility

4 for his crime is a factual finding that we review for clear error.” United States v.

Tuan Ngoc Luong, 965 F.3d 973, 990 (9th Cir. 2020) (quoting United States v.

Garrido, 596 F.3d 613, 617 (9th Cir. 2010)).

Contrary to Gutierrez-Gomez’s primary argument, there is no indication in

the record that the district court denied him an acceptance-of-responsibility

reduction based on his decision to stand trial. Instead, the district court evaluated

the criteria set forth in Application Note 1 of § 3E1.1. The court determined that

Gutierrez-Gomez did not qualify for an acceptance-of-responsibility reduction,

because he had not “voluntarily surrendered to authorities promptly after

commission of the offense” and his manifestations of acceptance of responsibility

were, at best, untimely. Because Gutierrez-Gomez concedes on appeal “that he did

not surrender promptly,” and it is undisputed that Gutierrez-Gomez remained in the

United States unlawfully for over six years without surrendering to authorities, the

district court’s determination that Gutierrez-Gomez had not demonstrated

acceptance of responsibility for illegally reentering the country was not “illogical,

implausible, or without support in inferences that may be drawn from the facts in

the record.” See United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en

banc).

AFFIRMED.