United States Court of Appeals For the First Circuit
No. 22-1157
UNITED STATES OF AMERICA,
Appellee,
v.
HENRI SALVADOR GUTIERREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Barron, Chief Judge, Howard and Montecalvo, Circuit Judges.
Stephen Super, with whom George F. Gormley was on brief, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Joshua S. Levy, United States Attorney, was on brief, for appellee.
August 29, 2023 MONTECALVO, Circuit Judge. In this sentencing appeal,
Henri Salvador Gutierrez asserts that the United States District
Court for the District of Massachusetts erred in imposing a
sentencing enhancement for the use or attempted use of a minor in
the commission of the offense under the United States Sentencing
Guidelines ("Guidelines"). See U.S.S.G. § 3B1.4 ("If the defendant
used or attempted to use a person less than eighteen years of age
to commit the offense or assist in avoiding detection of, or
apprehension for, the offense, increase by 2 levels."). On appeal,
Salvador Gutierrez argues that the district court erred (1) in
applying the enhancement based on the reasonably foreseeable use
of minors by coconspirators; (2) in applying the enhancement based
on Salvador Gutierrez's affirmative actions to use and involve
minors in the commission of the offense; and (3) in creating an
unwarranted sentencing disparity when it applied the minor-use
enhancement to him. Because Salvador Gutierrez's argument
relative to the first issue is foreclosed by the law of the circuit
doctrine, he waived his argument relative to the second issue, and
his remaining argument is without merit, we affirm the challenged
sentence.
I. Background
The parties do not dispute the underlying facts. "Where,
as here, a sentencing appeal follows a guilty plea, we glean the
relevant facts from the change-of-plea colloquy, the unchallenged
- 2 - portions of the presentence investigation report . . . , and the
record of the disposition hearing." United States v. Rijos-Rivera,
53 F.4th 704, 706 (1st Cir. 2022) (quoting United States v. Vargas,
560 F.3d 45, 47 (1st Cir. 2009)).
In October 2019, a federal grand jury returned a first
superseding indictment charging Salvador Gutierrez, alongside five
codefendants, with participation in a Racketeer Influenced and
Corrupt Organizations Act ("RICO") conspiracy. The indictment
alleged that Salvador Gutierrez was "employed by and associated
with" MS-131 and that on or about July 30, 2018, he and others
deliberately murdered Herson Rivas. On May 20, 2021, the
government filed a superseding information, adding the allegation
that Salvador Gutierrez, with others, deliberately murdered Luis
Orellano Ruano on or about December 24, 2016.
On June 4, 2021, Salvador Gutierrez pled guilty to one
count of RICO conspiracy in violation of 18 U.S.C. § 1962(d). In
doing so, he admitted to murdering Rivas and Ruano.
The probation office prepared a presentence
investigation report ("PSR") for Salvador Gutierrez. In
calculating the base offense level for the RICO conspiracy, the
PSR treated the Rivas murder and the Ruano murder as if they were
1 La Mara Salvatrucha, also known as MS-13, "is a transnational criminal organization based in El Salvador." United States v. Sandoval, 6 F.4th 63, 73 (1st Cir. 2021).
- 3 - separate counts of conviction. See U.S.S.G. § 2E1.1, Application
Note 1 ("Where there is more than one underlying offense [to a
RICO conviction], treat each underlying offense as if contained in
a separate count of conviction for the purposes of" determining
the base offense level.). The PSR assigned a base offense level
of 43 for each count of conspiracy to murder. However, for
conspiracy to murder Rivas, the PSR added a two-level enhancement,
pursuant to U.S.S.G. § 3B1.4, for using a minor "to commit the
offense or assist in avoiding detection of, or apprehension for,
the offense." Application of the minor-use enhancement resulted
in an adjusted offense level of 45 for conspiracy to murder Rivas.
Applying a multi-count adjustment, the PSR calculated a
combined adjusted offense level of 47. See U.S.S.G. § 3D1.4. That
number was reduced by three levels for "acceptance of
responsibility," for a total offense level of 44. See id.
§ 3E1.1(a), (b). The total offense level of 44 was treated as an
offense level of 43. See id. ch. 5, pt. A, Application Note 2
("An offense level of more than 43 is to be treated as an offense
level of 43."). The total offense level, combined with Salvador
Gutierrez's criminal-history category, resulted in an
advisory-sentencing range of life imprisonment.
Salvador Gutierrez raised several objections to the PSR.
As is relevant here, he objected to the PSR's recommended two-level
increase for minor use, maintaining that he did not "use" a minor
- 4 - in the murder of Rivas because he did not direct or lead a minor
during the commission of the crime. Probation responded that as
an older and higher-ranking member of MS-13, Salvador Gutierrez
likely had influence over juveniles such that he encouraged and
used them in his criminal activities. Relying on United States v.
Patrick, 248 F.3d 11 (1st Cir. 2001), probation also noted that
the minor-use enhancement can be based on the reasonably
foreseeable use of a minor by a codefendant. Thus, probation
contended, even if Salvador Gutierrez did not personally use a
minor, it was reasonably foreseeable that his codefendants would
use minors to further MS-13's activities.
Salvador Gutierrez also filed a sentencing memorandum
which, among other things, argued that the minor-use enhancement
was inapplicable and therefore his total offense level should be
42. A total offense level of 42 would result in an
advisory-sentencing range of 360 months to life imprisonment. See
U.S.S.G. ch. 5, pt. A. Ultimately, Salvador Gutierrez asked the
district court to impose a sentence of 400 months.
For its part, the government asked for life
imprisonment. The government argued that a life sentence was
appropriate under the 18 U.S.C. § 3553(a) sentencing factors
because Salvador Gutierrez "brutally killed two teenagers,"
"showed little remorse for his crimes," and exhibited "deplorable
conduct while in pretrial custody." In response to Salvador
- 5 - Gutierrez's sentencing memorandum, the government argued that the
minor-use enhancement applied because "Salvador [Gutierrez]
personally associated with multiple minors as part of the charged
racketeering conspiracy." In support, the government argued that
Salvador Gutierrez recruited a juvenile to the gang and "committed
the July 2018 murder [of Rivas] with a juvenile." Relying on
Patrick, the government also maintained that the minor-use
enhancement could be based on the reasonably foreseeable use of
juveniles by coconspirators and that Salvador Gutierrez "knew that
the gang would use a minor to further the gang's activities."
In preparing to schedule sentencing for Salvador
Gutierrez and his codefendants, the district court indicated that
its first task was to correctly calculate the guidelines range and
then to impose a sentence based on the sentencing factors described
in 18 U.S.C. § 3553(a). Salvador Gutierrez continued to argue
that the minor-use enhancement was not applicable to him because
he did not affirmatively involve a minor in the commission of the
Rivas murder. Salvador Gutierrez also directly attacked the
validity of Patrick, arguing that several other circuits have
rejected Patrick's reasonably foreseeable approach in favor of
applying the minor-use enhancement only when a defendant, by some
affirmative act, uses a minor participant in the crime.
The district court subdivided the sentencing hearing
into two parts. It began with hearings on February 7 and 8, 2022,
- 6 - as to the contested portions of the PSR that impacted calculation
of the guidelines range. At sentencing, the district court
overruled Salvador Gutierrez's objection regarding the minor-use
enhancement and found that the enhancement applied to Salvador
Gutierrez and his codefendants because "each defendant used a
person under 18 to commit the offense."
The district court also found that Salvador Gutierrez
directed a minor during the Rivas murder by telling the minor to
"move over."2 The district court then turned to whether the
minor-use enhancement could also be properly applied under
Patrick's reasonably foreseeable test. The district court
concluded that each defendant "knew . . . and foresaw that minors
would be used in the ongoing commission" of the RICO conspiracy
and that, therefore, application of the minor-use enhancement was
also proper under Patrick.
Despite concluding that the minor-use enhancement was
applicable, the district court reiterated that the court's
application of the enhancement would not affect the ultimate
2 The district court also found that Salvador Gutierrez personally used a minor by recruiting the minor to MS-13. Specifically, the court found that Salvador Gutierrez participated in the recruitment process of the minor by (1) talking to them about MS-13's mode of operating; (2) showing them a video of MS-13 activity; and (3) beating them as part of the gang-training process.
- 7 - sentence imposed, which would be driven by the § 3553(a) factors.3
However, the court recognized the government's position that the
application of the enhancement should factor into the ultimate
sentence and reserved on deciding the question until sentencing.
A few days later, on February 11, 2022, the district court entered
an order directing the parties to be prepared to address at
sentencing "whether the use of a minor as part of the RICO
conspiracy to which each defendant pled guilty is material to what
3 We pause here to dispel one additional argument advanced by Salvador Gutierrez: that the district court impermissibly believed itself bound to apply the minor-use enhancement. This argument misunderstands the law and misconstrues the district court's ruling regarding its obligation to correctly calculate the guidelines range versus its discretion to fashion a sentence that is no more than necessary to serve the statutory purposes of sentencing. Indeed, it is incumbent upon the district court to begin by determining what the advisory guidelines range is by calculating the offense level and the criminal history category. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018) ("[D]istrict courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process." (quoting Peugh v. United States, 569 U.S. 530, 541 (2013))). The offense level includes adjustments that "account for circumstances specific to the defendant's case," id., such as the minor-use enhancement. Once the advisory-sentencing range is determined, the district court must then consider the § 3553(a) factors in selecting the appropriate sentence. United States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013) ("[O]nce the [guidelines range] is properly calculated, 'sentencing becomes a judgment call' involving an intricate array of factors." (quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008))). The record before us clearly indicates that this is exactly what the district court did by first calculating the guidelines range and then selecting a sentence in consideration of the § 3553(a) factors.
- 8 - sentence is sufficient and no more than necessary . . . in order
to serve the statutory purposes of sentencing."
On February 16, 2022, the court convened a sentencing
hearing. The district court confirmed that application of the
minor-use enhancement raised Salvador Gutierrez's guidelines range
to life imprisonment, and Salvador Gutierrez again objected to
application of the enhancement.
After hearing the arguments of counsel and Salvador
Gutierrez's allocution, the district court imposed a sentence of
life imprisonment. The court considered the § 3553(a) sentencing
factors and, while recognizing the hardships of Salvador
Gutierrez's upbringing in El Salvador, concluded that Salvador
Gutierrez willingly joined MS-13 and participated in two murders.
The court gave detailed descriptions of its reasoning with respect
to several of the § 3553(a) factors, including the seriousness of
the crime: two murders committed two years apart. The court
recognized the need for the sentence to "afford adequate
deterrence" by sending a message "to members and prospective
members of MS-13 [that] it's not worth it to kill people, to kill
several people." The court acknowledged that the "primary purpose"
of the sentence was to protect the public from further crimes that
Salvador Gutierrez might commit, as it found that Salvador
Gutierrez was still an "extremely dangerous person."
- 9 - The district court further explained that it had
"searched to see whether there [was] really anything in view of
all the factors that weigh in favor of a life sentence that weighed
sufficiently in favor of a lower sentence, and [it] couldn't find
them." This timely appeal followed.
II. Discussion
Salvador Gutierrez contends that his sentence must be
vacated because the district court erred in applying a guideline
enhancement under U.S.S.G. § 3B1.4 for Salvador Gutierrez's use or
attempted use of a minor. Salvador Gutierrez first argues that
the district court erred in applying the minor-use enhancement
based on his coconspirators' reasonably foreseeable use of minors
to engage in violent crimes in furtherance of MS-13's activities.
He also challenges the finding that directing a minor to "move
over" during the Rivas murder constituted "use" of a minor.
Lastly, Salvador Gutierrez contends that the district court's
application of the minor-use enhancement was "arbitrary and
capricious," thereby resulting in a disparity between his sentence
and those of other MS-13 members. We address these claims
seriatim.
A. Challenge to the Correctness of Patrick
Salvador Gutierrez first argues that the minor-use
enhancement should not be applied based on coconspirators'
reasonably foreseeable use of minors to further the conspiracy's
- 10 - activities. Because Salvador Gutierrez preserved this claim of
procedural error, we review de novo the sentencing court's
interpretation and application of the Guidelines.4 See United
States v. Brown, 26 F.4th 48, 65 (1st Cir. 2022).
Salvador Gutierrez contends that the minor-use
enhancement should be read as "an individual role-in-the-offense
enhancement" that requires the defendant to take an affirmative
act to involve a minor in the commission of criminal activity. In
the same breath, however, Salvador Gutierrez acknowledges that
reading the Guidelines as he invites us to would require us to
overturn Patrick. Patrick's holding that the minor-use
enhancement may be applied based on coconspirators' reasonably
foreseeable use of juveniles to further the conspiracy's
activities is the law of this circuit. See Patrick, 248 F.3d at
27-28. This circuit precedent thus forecloses Salvador
Gutierrez's argument.
"The law of the circuit doctrine requires this court
(and, by extension, all lower courts within this circuit) to
respect, in the absence of supervening authority, the decisions of
prior panels on the same issue." Nevor v. Moneypenny Holdings,
LLC, 842 F.3d 113, 125 (1st Cir. 2016). There are
Salvador Gutierrez challenges the correctness of Patrick, 4
but he does not challenge the district court's factual finding that it was reasonably foreseeable that coconspirators would use or attempt to use a minor in the commission of the RICO conspiracy.
- 11 - "hen's-teeth-rare" exceptions to this rule, United States v.
Barbosa, 896 F.3d 60, 74 (1st Cir. 2018) (quoting San Juan Cable
LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010)), but no
exception applies here.
The exception to the law of the circuit doctrine that
Salvador Gutierrez rests his argument on is when a defendant shows
that subsequent authority, "although not directly controlling,
nevertheless offers a sound reason for believing that the former
panel, in light of fresh developments, would change its collective
mind." Id. Salvador Gutierrez presents us with the opinions of
certain of our sister circuits, which have held that the minor-use
enhancement can be applied only against a defendant who,
themselves, took affirmative actions to involve minors in the
criminal activity. See e.g., United States v. Acosta, 474 F.3d
999, 1002 (7th Cir. 2007) (adopting the view of the Third, Tenth,
Ninth, and Sixth Circuits that "the enhancement applies only when
the defendant by some affirmative act helps to involve the minor
in the criminal enterprise").
Fatal to Salvador Gutierrez's contention is that this
exception to the law of the circuit doctrine "applies when Supreme
Court precedent . . . provides a clear and convincing basis to
believe that the earlier panel would have decided the issue
differently." United State v. Guerrero, 19 F.4th 547, 552 (1st
Cir. 2021) (emphasis added). Salvador Gutierrez has not presented
- 12 - us with any Supreme Court precedent that would provide a basis for
overturning Patrick and free this panel from the constraints of
the law of the circuit doctrine.
Yet again, we recognize the divergent views of our sister
circuits "on whether the enhancement must be based on a defendant's
own affirmative actions or whether it can be applied based on a
coconspirator's reasonably foreseeable use of a minor, and that
this court has already weighed in on this debate." United States
v. Corbett, 870 F.3d 21, 34 n.16 (1st Cir. 2017) (internal citation
omitted). However, adhering to our precedent, we find that the
district court did not err in ruling that the minor-use enhancement
may be applied based on coconspirators' reasonably foreseeable use
of juveniles.
B. Challenge to the Affirmative Use of a Minor
For the first time in his reply brief, Salvador Gutierrez
argues that the district court erroneously found that telling a
minor to "move over" during the commission of the Rivas murder
constitutes "use" of a minor for purposes of U.S.S.G. § 3B1.4.
Indeed, Salvador Gutierrez made no such argument before the
district court, and, on appeal, he declined to place it in his
opening brief (which instead focuses on Patrick). Only in his
reply brief does he attempt to argue that the "move over" directive
does not qualify for application of the minor-use enhancement.
- 13 - "Our precedent is clear: we do not consider arguments
for reversing a decision of a district court when the argument is
not raised in a party's opening brief." Sparkle Hill, Inc. v.
Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015). Any
argument about whether telling a minor to move over during the
commission of the Rivas murder qualifies as an affirmative action
to involve minors in the offense was available to Salvador
Gutierrez "at the outset but raised for the first time in [his]
reply brief." United States v. Tosi, 897 F.3d 12, 15 (1st Cir.
2018). Because this issue was not properly preserved, we do not
address it. United States v. Cascella, 943 F.3d 1, 8 (1st Cir.
2019).5
C. Sentencing Disparity Claim
We end on Salvador Gutierrez's final claim, which is
that the district court created an unwarranted sentencing
disparity when it applied the minor-use enhancement to him. He
argues that the minor-use enhancement is applied arbitrarily and
capriciously across MS-13 defendants, often applied to one
defendant but not another. In support, Salvador Gutierrez points
Another argument making its first appearance before us in 5
the reply brief is Salvador Gutierrez's objection to the district court's use of hearsay statements from confidential witnesses. He made no such argument before the district court, and, on appeal, only in his reply brief does he raise this argument. As we have already stated, we need not consider arguments raised for the first time in a reply brief. United States v. Cascella, 943 F.3d 1, 8 (1st Cir. 2019).
- 14 - to numerous MS-13 members who, apparently, did not have the
minor-use enhancement applied against them.
This sentencing-disparity claim fails from the outset
because Salvador Gutierrez has failed to present appropriate
comparators. See United States v. Bishoff, 58 F.4th 18, 25-26
(1st Cir. 2023). Congress has directed sentencing courts to
consider "the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct." 18 U.S.C. § 3553(a)(6). "To present '[a]
well-founded claim of disparity,' a defendant must compare apples
to apples." United States v. Reyes-Santiago, 804 F.3d 453, 467
(1st Cir. 2015) (alteration in original) (quoting United States v.
Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005)).
Here, Salvador Gutierrez has done nothing more than
present us with a list of defendants that he argues the minor-use
enhancement was not applied to. He has not in the least shown
that these defendants are relevant comparators. See United States
v. Nuñez, 840 F.3d 1, 7 (1st Cir. 2016) ("Merely pointing to a
[codefendant]'s sentence, without more, does not prove the
existence of an impermissible sentencing disparity."). There is
nothing to show that any of these defendants are "identically
situated" to Salvador Gutierrez. Reyes-Santiago, 804 F.3d at 467.
Perhaps recognizing that weakness, Salvador Gutierrez
pivots from arguing that the minor-use enhancement is applied
- 15 - arbitrarily and capriciously across all MS-13 defendants, to
arguing that one of his confederates did not receive the minor-use
enhancement when he did. Specifically, Salvador Gutierrez points
to Maynor Maltez Romero, an MS-13 member who was indicted in the
first superseding indictment for murdering Rivas. Salvador
Gutierrez contends that Maltez Romero did not receive the minor-use
enhancement despite his affirmative use of minors. Glaringly fatal
to Salvador Gutierrez's claim is the fact that Maltez Romero was
a juvenile at the time of the Rivas murder. As such, Salvador
Gutierrez's claim is not comparing "apples to apples," Brown, 26
F.4th at 69, because there is a material difference between him
and Maltez Romero that "suffice[s] to explain the divergence."
Romero, 906 F.3d at 211 (quoting United States v. Demers, 842 F.3d
8, 15 (1st Cir. 2016)).
III. Conclusion
For the foregoing reasons, we affirm Salvador
Gutierrez's sentence.
- 16 -