United States v. Matias-Gutierrez

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 14, 2024
• Docket: 23-2132
• Status: Unpublished

Opinion

Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT August 14, 2024 _______________________________________ Christopher M. Wolpert UNITED STATES OF AMERICA, Clerk of Court

Plaintiff - Appellee, No. 23-2132 v. (D.C. No. 2:22-CR-01596-MIS-1) (D. N.M.) JUAN JOSE MATIAS-GUTIERREZ,

Defendant - Appellant.

__________________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, TYMKOVICH, and BACHARACH, Circuit Judges. _________________________________

This appeal grew out of an agreement for the defendant to plead

guilty in exchange for a stipulated prison sentence. But the district court

rejected the stipulated sentence and imposed a harsher prison term. The

defendant, Mr. Juan Jose Matias-Gutierrez, challenges the district court’s

decisions to reject the agreement and to impose a harsher sentence. We

affirm.

* This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 2

1. Mr. Matias-Gutierrez pleads guilty.

Mr. Matias-Gutierrez agreed to plead guilty to illegally reentering

the United States. See 8 U.S.C. § 1326(a)–(b). The guideline range was 24

to 30 months’ imprisonment, and the parties stipulated to a 30-month

sentence upon entry of a guilty plea. With the stipulation, Mr. Matias-

Gutierrez pleaded guilty. But the district court rejected the agreement and

later imposed a sentence of 60 months’ imprisonment.

2. The district court didn’t commit reversible error by rejecting the agreement.

Mr. Matias-Gutierrez argues that the district court erred in rejecting

the agreement by (1) participating in plea negotiations and (2) relying on a

prior conviction for attempted sexual assault of a child.

a. The defendant invited any potential error involving participation in plea negotiations.

Mr. Matias-Gutierrez alleges that the district court improperly

participated in plea negotiations 1 by expressing an intent to impose a

sentence longer than 30 months. But the court didn’t express that intent out

of thin air. At a hearing, the district court commented that a 30-month

sentence might be too light. In response, Mr. Matias-Gutierrez’s attorney

asked: “[W]hat kind of sentence are you anticipating?” R. vol. 2, at 7. The

1 Federal Rule of Criminal Procedure 11(c)(1) states that the district court cannot participate in plea negotiations. 2 Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 3

court replied: “[G]iven where we are right now, I’d probably say a 48-

month sentence.” Id.

Mr. Matias-Gutierrez characterizes this reply as improper

participation in plea negotiations. But the court was simply answering

defense counsel’s question. So even if the court had erred, Mr. Matias-

Gutierrez would have invited that error by asking about the potential

sentence. See United States v. Mamoth, 47 F.4th 394, 398–99 (5th Cir.

2022) (concluding that the defendant invited any possible error by asking

the district court what it would accept as the sentence); United States v.

Ginyard, 215 F.3d 83, 88 (D.C. Cir. 2000) (concluding that the defendant

invited any possible error by asking the district court for its opinion about

an acceptable sentence). Because Mr. Matias-Gutierrez had invited any

alleged error, we cannot reverse on this basis. See United States v. Edward

J., 224 F.3d 1216, 1222 (10th Cir. 2000) (stating that a party can’t obtain

reversal by inducing court action and then characterizing that action as

erroneous).

b. The district court didn’t plainly err in rejecting the parties’ stipulation of a 30-month sentence.

Mr. Matias-Gutierrez challenges the district court’s rejection of the

stipulation for a 30-month sentence. In his view, the district court

• erred in relying on hearsay statements about the conduct underlying a prior conviction for attempted sexual assault,

3 Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 4

• mischaracterized the prior conviction as an actual sexual assault rather than an attempt, and

• should have relied on the elements of the prior offense rather than the underlying conduct.

Mr. Matias-Gutierrez did not make these arguments in district court, so we

apply the plain-error standard. Under this standard, Mr. Matias-Gutierrez

must show that there is “(1) error, (2) that is plain, which (3) affects

substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Caraway, 534

F.3d 1290, 1298 (10th Cir. 2008) (quoting United States v. Gonzalez-

Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc)).

Hearsay statements about a sexual assault. The presentence report

contains hearsay statements, summarizing a school counselor’s statement

that a 10-year-old girl had reported sexual abuse by Mr. Matias-Gutierrez.

Supp. R. vol. 1, at 7. (The girl was Mr. Matias-Gutierrez’s niece.) Mr.

Matias-Gutierrez did not object to the section of the presentence report

containing these statements. But at the sentencing, he denied the

accusation of sexual abuse and an attraction to children. R. vol. 2, at 19–

21.

After hearing these denials, the court confronted Mr. Matias-

Gutierrez with his niece’s report of a sexual assault: “So my concern is

with children. I mean, if you don’t have a sexual attraction to children,

4 Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 5

why did you repeatedly rape your ten-year-old niece when you were 41

years old?” Id. at 21.

From this question, Mr. Matias-Gutierrez contends that the district

court relied improperly on the girl’s out-of-court statements, pointing out

that the conviction involved attempted sexual abuse rather than an actual

rape. We reject this contention because the court didn’t rely on the girl’s

statements.

The question came at a hearing where the court was considering

whether the stipulated sentence would be long enough to protect the public.

In the hearing, Mr. Matias-Gutierrez said that he respected minor persons

and was not addicted to them. Id. at 19. The court then asked Mr. Matias-

Gutierrez why he had “repeatedly rape[d] [his] ten-year-old niece when [he

was] 41 years old.” Id. at 21.

The niece had alleged rape, and the court apparently considered that

allegation when questioning Mr. Matias-Gutierrez about his attraction to

underage girls. And the court later rejected the plea agreement. But the

court didn’t state that it was rejecting the plea agreement based on a belief

that Mr. Matias-Gutierrez had raped his niece. In the absence of such a

statement, we can’t assume that the district court had rejected the plea

agreement based on a question posed to the defendant in a hearing. See

United States v. Ansberry, 976 F.3d 1108, 1117–18 (10th Cir 2020)

(concluding that a court’s “preliminary statement and . . . extended

5 Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 6

colloquy with defense counsel” did not reveal the grounds for a sentencing

court’s ruling).

Characterization of the prior conviction. When this hearing

started, the court expressed concern about the length of the sentence,

commenting twice about a conviction for sexual assault of the niece.

R. vol. 2, at 2, 5–6, 21. The actual conviction involved attempt, not a

completed sexual assault. But the court made these comments when

starting the hearing, not when explaining the decision to reject the plea

agreement. And courts don’t ordinarily disturb sentencing decisions based

on stray comments at hearings. See United States v. Rock, 863 F.3d 827,

830 (D.C. Cir. 2017) (concluding that “the district court’s recidivism

comment was only that—a comment—and appears to have had no influence

on the length of imprisonment to which [the defendant] was sentenced”);

United States v. Zabielski, 711 F.3d 381, 391 (3d Cir. 2013) (declining to

disturb a sentence based on the district court’s stray comments during a

sentencing hearing); United States v. Cherry, 487 F.3d 366, 373 (6th Cir.

2007) (concluding that one stray comment at a sentencing hearing had not

established an error). Here the court followed up these stray comments by

correctly characterizing the conviction.

After rejecting the plea agreement, the district court explained its

selection of a 60-month sentence. In this explanation, the court correctly

6 Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 7

• referred to the 2014 conviction as one for “attempted sexual abuse” and

• described the girl’s statements about criminal sexual penetration as “allegations.”

R. vol. 2, at 25. Given the court’s later explanation, we don’t assume that

the district court rejected the plea agreement based on a mistaken belief

about the nature of the prior conviction.

Reliance on underlying conduct. Mr. Matias-Gutierrez also claims

that the district court should have considered only the elements of his

attempt conviction rather than the underlying facts.

If the court had erred, the error wouldn’t have been plain. See p. 4,

above. In determining a sentence, the district court can generally consider

a broad swath of information about the defendant’s conduct and character.

18 U.S.C. § 3661. Mr. Matias-Gutierrez points out that the district court

can only consider the elements when determining whether a crime

constitutes a violent felony under the Armed Career Criminal Act,

18 U.S.C. § 924(e).

But here the court wasn’t asking whether Mr. Matias-Gutierrez’s

crime had constituted a violent felony. To the contrary, the district court

was assessing Mr. Matias-Gutierrez’s criminal history as a factor in

deciding whether the agreed sentence would be long enough. See United

States v. Smith, 815 F.3d 671, 679 (10th Cir. 2016) (concluding that a

sentencing court could rely on an undisputed account of the defendant’s 7 Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 8

conduct surrounding a prior criminal conviction). So the court didn’t

plainly err by referring to the facts underlying the criminal history. See

p. 4, above.

3. The district court didn’t err procedurally.

Mr. Matias-Gutierrez argues that the sentencing proceedings were

procedurally unreasonable because the district court didn’t

• consider the kinds of sentences available or

• adequately explain the need for a sentence above the guideline range.

Mr. Matias-Gutierrez didn’t make these arguments in district court,

so we would ordinarily apply the plain-error standard. See United States v.

Wireman, 849 F.3d 956, 961–62 (10th Cir. 2017). But Mr. Matias-Gutierrez

waived these arguments by failing to urge plain error. 2 See United States v.

Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019) (“When an appellant fails to

preserve an issue and also fails to make a plain-error argument on appeal,

we ordinarily deem the issue waived (rather than merely forfeited) and

decline to review the issue at all—for plain error or otherwise.”).

But even without a waiver, these arguments would fail under the

plain-error standard because the district court did

2 The government also argues that Mr. Matias-Gutierrez waived a challenge to the sufficiency of the explanation by acknowledging that he understood the sentence. We need not consider this argument because the failure to urge plain error would have constituted a waiver anyway.

8 Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 9

• consider the kinds of available sentences and

• explain the need for an upward variance.

First, Mr. Matias-Gutierrez contends that the district court should

have considered alternatives to imprisonment. Granted, the court must

consider “the kinds of sentences available.” 18 U.S.C. § 3553(a)(3). But

neither the parties nor the probation office had suggested any alternatives

to imprisonment. To the contrary, everyone had agreed that a prison

sentence was justified. The only question was the length of the prison

term.

Second, Mr. Matias-Gutierrez contends that the district court should

have given a better explanation for varying so far above the guideline

range. For this contention, Mr. Matias-Gutierrez insists that his case fell

within the heartland of cases covered by the guidelines.

The court must address the heartland of cases when imposing a

departure, which is governed by Chapters Four and Five of the guidelines.

See United States v. Sicken, 223 F.3d 1169, 1172 (10th Cir. 2000)

(explaining that the heartland is “a set of typical cases embodying the

conduct that each guideline describes”). But the district court imposed a

variance rather than a departure. And district courts can impose variances

even in mine-run cases. Spears v. United States, 555 U.S. 261, 266–67

(2009) (per curiam); see also United States v. Martinez-Barragan, 545 F.3d

894, 901–02 (10th Cir. 2008) (stating that a district court can impose a 9 Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 10

variance even when the circumstances fall “within the heartland of similar

cases”). So the court didn’t commit plain error by failing to explain why

the case fell outside the heartland of guideline cases. See p. 4, above.

4. The district court didn’t err substantively.

Finally, Mr. Matias-Gutierrez challenges his 60-month sentence as

substantively unreasonable, arguing that the district court put too much

weight on the conduct underlying his prior condition for attempted sexual

assault.

In sentencing Mr. Matias-Gutierrez, the district court needed to

consider seven factors:

1. The offense and the history and characteristics of the defendant,

2. the need for a sentence to reflect just punishment, deterrence, incapacitation, and rehabilitation,

3. the kinds of sentences available,

4. the U.S. Sentencing Guidelines,

5. the Sentencing Commission’s policy statements,

6. the need to avoid unwarranted sentencing disparities, and

7. the need for restitution.

See 18 U.S.C. § 3553(a)(1)–(7). The district court did not need to afford

equal weight to these factors. United States v. Sanchez-Leon, 764 F.3d

1248, 1267–68 (10th Cir. 2014).

10 Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 11

When reviewing a sentence for substantive reasonableness, we apply

the abuse-of-discretion standard, considering the totality of the

circumstances. United States v. Cookson, 922 F.3d 1079, 1090 (10th Cir.

2019). “A district court abuses its sentencing discretion only if the

sentence exceeded the bounds of permissible choice.” United States v.

Barnes, 890 F.3d 910, 915 (10th Cir. 2018) (quotations and citations

omitted). A sentence should be overturned only if it is arbitrary,

capricious, whimsical, or manifestly unreasonable. United States v. Peña,

963 F.3d 1016, 1024 (10th Cir. 2020). We defer “not only to a district

court’s factual findings but also to its determinations of the weight to be

afforded to such findings.” United States v. Smart, 518 F.3d 800, 808 (10th

Cir. 2008).

The district court did give substantial weight to the conduct

underlying his prior conviction for attempted sexual assault. But the court

also considered other factors, including Mr. Matias-Gutierrez’s conviction

for a methamphetamine offense, his return to the United States just eight

months after his release from imprisonment for the 2014 conviction, and

his violation of parole. R. vol. 2, at 25–28. The court also considered

mitigating factors like Mr. Matias-Gutierrez’s apology to his family, his

financial struggles, and his motive to return to the United States to see his

family. Id. at 24–25. The district court acted within its discretion when

weighing these factors and imposing a 60-month sentence.

11 Appellate Case: 23-2132 Document: 010111094384 Date Filed: 08/14/2024 Page: 12

** *

Mr. Matias-Gutierrez invited any possible error involving the district

court’s participation in plea negotiations, and the district court didn’t

plainly err in rejecting the agreement for a 30-month sentence. Mr. Matias-

Gutierrez waived his procedural challenges to the sentence, and the prison

term was substantively reasonable. We thus affirm the conviction and

sentence.

Entered for the Court

Robert E. Bacharach Circuit Judge