United States v. Juan Gamez-Salas

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2024
• Docket: 21-50278
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED DEC 5 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50278

Plaintiff-Appellee, D.C. No. 3:21-cr-00995-LAB-1 v. MEMORANDUM* JUAN CARLOS GAMEZ-SALAS,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted December 3, 2024** Pasadena, California Before: BYBEE, IKUTA, and BADE, Circuit Judges.

* 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). Juan Carlos Gamez-Salas appeals the sentence imposed after he was

convicted under 8 U.S.C. § 1326. He also challenges the constitutionality of 8

U.S.C. § 1326, arguing that it violates the equal protection guarantee under the Fifth

Amendment. “We review the district court’s interpretation of the Sentencing

Guidelines de novo,” its “application of the Guidelines for abuse of discretion[,] and

its factual findings for clear error.” United States v. Le, 119 F.4th 700, 703 (9th Cir.

2024); see also United States v. Green, 940 F.3d 1038, 1041 (9th Cir. 2019). A

district court abuses its discretion if that “discretion was guided by erroneous legal

conclusions.” United States v. Connelly, 156 F.3d 978, 982 (9th Cir. 1998). We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

1. Gamez-Salas first argues that the district court erred in denying him a two-

level downward adjustment for acceptance of responsibility under § 3E1.1(a) of the

Sentencing Guidelines, claiming that the district court failed to assess his personal

contrition and relied on impermissible factors. These arguments fail.

“Under [§ 3E1.1(a) of] the Sentencing Guidelines, a district court has

discretion to award a two-level downward adjustment to a defendant who clearly

demonstrates acceptance of responsibility for his offense.” United States v.

Gambino-Ruiz, 91 F.4th 981, 991 (9th Cir. 2024) (internal quotation marks omitted).

“[O]nly in ‘rare situations’ will a defendant who goes to trial be able to demonstrate

2 acceptance of responsibility.” Id. District courts consider a list of non-exhaustive

factors when determining whether a defendant qualifies for the acceptance of

responsibility adjustment. United States v. Cortes, 299 F.3d 1030, 1038–39 (9th Cir.

2002).

The “key inquiry . . . is whether the defendant has demonstrated contrition,”

United States v. Eyler, 67 F.3d 1386, 1390–91 (9th Cir. 1995). If a defendant is

contrite, then his exercise of constitutional rights—such as the right to a jury trial—

cannot be held against him to refuse the adjustment. Cortes, 299 F.3d at 1038. If

“the district court considered the defendant’s objections and did not rest its decision

on impermissible factors, no specific explanation of reasons is required for” a district

court to find that the defendant did not accept responsibility. United States v.

Mohrbacher, 182 F.3d 1041, 1052 (9th Cir. 1999).

The district court adequately considered Gamez-Salas’s contrition. It

“look[ed] back at the record of this fellow and how often he’s committed the same

offense.” See United States v. Cooper, 912 F.2d 344, 346 (9th Cir. 1990) (noting that

continued criminal activity may be “evidence of a lack of sincere remorse”). It also

acknowledged that a defendant who exercises his constitutional rights instead of

pleading guilty is eligible for a downward adjustment in “rare case[s].” This

indicates that the district court considered whether Gamez-Salas showed contrition,

3 rather than considering only his exercise of constitutional rights, in denying the

adjustment. And to the extent that Gamez-Salas raised his mental illness in his

sentencing memo as a reason to apply the acceptance of responsibility adjustment,

the district court considered it.

Nor did the district court consider impermissible factors in denying the

adjustment. The district court noted that Gamez-Salas contested his guilt during

trial, undermining his contention that he only went to trial to preserve what the

district court considered an unlikely-to-prevail equal protection challenge. See

United States v. Rojas-Pedroza, 716 F.3d 1253, 1271 (9th Cir. 2013) (considering

the defendant’s “frivolous challenge to the evidence supporting an element of the

offense as weighing against acceptance of responsibility”), abrogation on other

grounds recognized by United States v. Portillo-Gonzalez, 80 F.4th 910 (9th Cir.

2023). And the district court permissibly considered Gamez-Salas’s decision to

contest his guilt at trial. See Gambino-Ruiz, 91 F.4th at 992 (citing § 3E1.1 cmt. 2)

(explaining that when a defendant “contest[s] his guilt at trial by attempting to negate

a key element of the offense” then the defendant’s “motive at trial [is] clearly beyond

merely ‘preserv[ing] issues that do not relate to factual guilt’”). Finally, the district

court permissibly considered Gamez-Salas’s choice of a jury trial, rather than a

quicker bench or stipulated-facts trial. Id. at 991 & n.9. We discern no legal error

4 in the district court’s analysis of acceptance of responsibility nor clear error in its

factual findings, and find no abuse of discretion in its denial of a downward

adjustment.

2. Gamez-Salas’s challenge to 8 U.S.C. § 1326 is foreclosed by United States

v. Carrillo-Lopez, 68 F.4th 1144, 1154 (9th Cir. 2023) (holding that 8 U.S.C. § 1326

does not violate the Fifth Amendment’s equal protection guarantee). We cannot

overrule circuit precedent, and another circuit court’s potential contrary decision

does not change that. See United States v. Flores-Montano, 424 F.3d 1044, 1050 n.7

(9th Cir. 2005) (explaining that we may only overrule circuit precedent if it conflicts

with “intervening higher authority”) (internal citation and quotation marks omitted).

AFFIRMED.