United States v. Gabriel Gutierrez , 570 F. App'x 295 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4079
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GABRIEL TORRES GUTIERREZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:11-cr-00102-MR-DLH-1)
Argued: March 20, 2014 Decided: April 30, 2014
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Henderson
Hill, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gabriel Torres Gutierrez appeals his 78-month sentence for
illegal reentry. He contends that the district court committed
plain error in calculating his Sentencing Guidelines range and
that his sentence was substantively unreasonable. For the
reasons that follow, we affirm.
I.
Born in Mexico in 1966, Gutierrez unlawfully entered the
United States sometime before 1987 and settled in Los Angeles.
He amassed a substantial criminal record in Southern California.
In less than ten years he was convicted of shooting at an
inhabited dwelling or occupied vehicle, possession of a
controlled substance, indecent exposure, and disorderly conduct.
He moved to North Carolina in the 1990s, but returned to Mexico
sometime after he was convicted of driving without a license in
1998.
On July 11, 1999, border officials apprehended Gutierrez as
he attempted to reenter the United States using a forged birth
certificate. Immigration officials removed him to Mexico the
same day. After illegally entering the country later that year
with the help of a “coyote,” Gutierrez returned to North
Carolina, where police apprehended him in 2000 for possession of
marijuana with intent to sell. He was again deported to Mexico.
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Less than a year later, in 2002, border officials apprehended
Gutierrez running near the Rio Grande River in Texas. After
admitting that he was in the country illegally, Gutierrez was
acquitted of illegal reentry and was deported yet again. Four
years later, in 2006, authorities arrested Gutierrez for theft
and deported him to Mexico. In 2007, immigration officials
apprehended him as he tried once more to cross the border, this
time without identification. A court convicted him of illegal
reentry and sentenced him to 12 months’ imprisonment. After
serving his sentence, Gutierrez was deported to Mexico in 2008.
In 2010, Gutierrez illegally returned to North Carolina one last
time, where police arrested him for obtaining property by false
pretenses and obstruction of justice. This final apprehension
in the United States marked Gutierrez’s sixth illegal return to
the United States.
Gutierrez pleaded guilty to illegal reentry by an unlawful
alien, 8 U.S.C. §§ 1326(a) & (b)(2), before a federal magistrate
judge on January 18, 2012. Prior to the sentencing hearing,
Gutierrez’s probation officer drafted a presentence report. In
calculating Gutierrez’s offense level, the probation officer
applied a 12-point sentence enhancement under Section 2L1.2 of
the U.S. Sentencing Guidelines on the ground that Gutierrez had
previously been deported after committing a “crime of violence.”
The probation officer concluded that Gutierrez’s 1987 California
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conviction for “shooting at an inhabited dwelling or occupied
vehicle,” Cal. Penal Code § 246, qualified as a crime of
violence under the Guidelines. This enhancement yielded a total
offense level of 17, resulting in a recommended Guidelines range
of 37-46 months’ imprisonment. The probation officer noted that
there “appears to be no circumstance or combination of
circumstances that warrant a departure from the prescribed
sentencing guidelines.”
Gutierrez did not object to the imposition of the 12-point
enhancement. Rather, at the sentencing hearing, Gutierrez’s
counsel argued that Gutierrez deserved a sentence “in the low to
mid-range of the guidelines” given that he returned to the
United States only after being attacked in Mexico for refusing
to participate in the Mexican drug trade. The Government, by
contrast, asked for a sentence “at the upper end of the
guideline range” given Gutierrez’s “history of recidivism” and
given that he had never “really ever received a significant
sentence” for his past crimes.
Gutierrez himself also provided a statement at the hearing.
He acknowledged that he made “poor decisions,” but stated that
he had returned to the United States “with the intention of
working honestly as God instructs.” He explained that he
returned to the United States only after members of “organized
crime in [his] country” beat him into a three-week coma.
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After considering the Section 3553(a) factors, the district
court sentenced Gutierrez to 78 months’ imprisonment -- an
upward variance of 30 months from the high end of the Guidelines
range. The court explained that it was not imposing the
variance due to “the seriousness of the offense” -- the court
noted that Guidelines already accounted for that factor.
Rather, the court concluded that the variance was “necessary to
promote respect for the law and to afford adequate deterrence to
criminal conduct, not just by this defendant but by others.”
The court emphasized Gutierrez’s six illegal reentries, and
noted that “with almost every one of these returns there [were]
additional crimes on the criminal history.” Moreover, the court
pointed out that Gutierrez had been punished leniently after
previous illegal reentries -- receiving the “benefit of fast
track treatment” so as to avoid jail time with respect to some
crimes. Although the court expressed “substantial sympathy”
regarding Gutierrez’s violent treatment in Mexico, the court
noted that this mistreatment did not excuse his repeated
violations of United States law. The court concluded that
Gutierrez’s conduct amounted to “a long-term pattern of not only
disrespect for the law but disregard for the law.”
Gutierrez’s counsel argued that the Guidelines already
accounted for Gutierrez’s history of recidivism and that a
variance was therefore improper. Counsel also contended that he
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had not been “given adequate notice that the Court intended to
upwardly depart or vary,” and therefore that he lacked a
sufficient opportunity to respond to the court’s concerns. The
court rejected both arguments. Gutierrez timely noted this
appeal.
We review a criminal sentence for procedural and
substantive reasonableness. United States v. Gall, 552 U.S. 38,
51 (2007). We first determine whether the district court
committed a significant procedural error such as miscalculating
the applicable Guidelines range. Id. If no procedural error
occurred, we next determine whether the sentence imposed was
nevertheless substantively unreasonable, applying an abuse-of-
discretion standard. Id. Gutierrez contends that the district
court committed both procedural and substantive error in
calculating his sentence. We address each contention in turn.
II.
Gutierrez initially asserts that the district court
committed procedural error by imposing a 12-point crime-of-
violence enhancement.
The Guidelines subject a defendant convicted of illegal
reentry to a 12-point (or 16-point) sentence enhancement if he
was previously deported after committing a “crime of violence.”
U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guidelines commentary
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defines a crime of violence, in relevant part, as any “offense
under federal, state, or local law that has as an element the
use, attempted use, or threatened use of physical force against
the person of another.” Id. cmt. n.1(B)(iii). We refer to this
Guidelines provision as the “force clause.” The district court
imposed a 12-point enhancement on the ground that Gutierrez’s
California conviction for shooting at an inhabited dwelling or
occupied vehicle qualified as a “crime of violence” under the
force clause. Gutierrez did not object to the enhancement.
Consequently, as he recognizes, our only review is for plain
error.
A party asserting plain error must show (1) that an error
occurred, (2) that the error was plain, and (3) that the error
affected substantial rights. United States v. Slade, 631 F.3d
185, 190 (4th Cir. 2011). If these three conditions are met, we
correct the error only if the error “seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.” Id. at 192. We are admonished to resist the
“reflexive inclination” to reverse unpreserved error. Puckett
v. United States, 556 U.S. 129, 134 (2009) (citation omitted).
Gutierrez claims that the district court erred by treating
his California conviction as a crime of violence. He points to
Fourth Circuit precedent holding that crimes involving a mens
rea of mere recklessness cannot qualify as crimes of violence
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under the force clause. See Garcia v. Gonzalez, 455 F.3d 465,
468 (4th Cir. 2006); Bejarano-Urrutia v. Gonzalez, 413 F.3d 444,
447 (4th Cir. 2005). And he contends that the California crime
of shooting at an inhabited dwelling requires mere recklessness
rather than purposeful conduct. Accordingly, he urges us to
agree with the Ninth Circuit that a conviction under this
statute does not constitute a crime of violence. See United
States v. Narvaez-Gomez, 489 F.3d 970, 977 (9th Cir. 2007).
We need not resolve whether the district court erred by
treating Gutierrez’s California conviction as a crime of
violence, however, because, even if it did err, Gutierrez cannot
establish that the error was plain.
An error is plain “if the settled law of the Supreme Court
or this circuit establishes that an error has occurred.” United
States v. Carthorne, 726 F.3d 503, 516 (citation omitted). In
the absence of binding precedent, “decisions by other circuit
courts of appeals are pertinent to the question of whether an
error is plain.” United States v. Rouse, 362 F.3d 256, 263 (4th
Cir. 2004) (citation omitted). But if our court has yet to
speak directly on a legal issue and other circuits are split, “a
district court does not commit plain error by following the
reasoning of another circuit.” United States v. Strieper, 666
F.3d 288, 295 (4th Cir. 2012).
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The combination of several facts requires the conclusion
that any error here was not plain. First, no case from this
court or the Supreme Court provides that the California statute
at issue does not qualify as a crime of violence. Thus, to
conclude that Gutierrez’s California conviction should not yield
a sentence enhancement, the district court would have been
required to delve into an unsettled area of California law.
This absence of dispositive federal precedent suggests that any
error by the district court was not obvious.
Moreover, cases from other circuits create an arguable
circuit split on the question presented here. The Seventh
Circuit has held that an Illinois conviction for aggravated
discharge of a firearm -- a crime similar to the California
crime committed by Gutierrez -- does constitute a crime of
violence under § 2L1.2(b)(1)(A). See United States v. Curtis,
645 F.3d 937, 941 (7th Cir. 2011). But the Ninth Circuit has
held to the contrary. See Narvaez-Gomez, 489 F.3d at 977.
Gutierrez posits that Curtis is distinguishable from Narvaez-
Gomez because the Illinois statute required “intentional or
knowing” conduct, Curtis, 645 F.3d at 942, while the California
crime “may result from purely reckless conduct,” Narvaez-Gomez,
489 F.3d at 977. But even assuming that the two cases, upon
close analysis, may be so distinguished, the cases at least
suggest a disagreement among the circuits. Moreover, prior to
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Narvaez-Gomez, the Ninth Circuit itself had held that the
California statute at issue here categorically constituted a
crime of violence. See United States v. Lopez-Torres, 443 F.3d
1182, 1185 (9th Cir. 2006), abrogated by Fernandez–Ruiz v.
Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc). The
apparently inconsistent case law on this question undermines
Gutierrez’s contention that the district court plainly erred.
Additionally, the cases from this court establishing that
crimes of violence cannot rest on reckless conduct arose in the
immigration context rather than the context of the Sentencing
Guidelines. See Garcia, 455 F.3d at 465; Bejarano-Urrutia, 413
F.3d at 444. Although we interpret force clauses in different
statutes identically for purposes of “ascertaining whether a
prior conviction is a crime of violence,” United States v. Vann,
660 F.3d 771, 773 n.2 (4th Cir. 2011) (en banc), the fact
remains that, in the Guidelines context, we have never held that
a crime involving mere recklessness cannot qualify as a crime of
violence -- further suggesting that any error was not plain.
Taken together, these facts cloud the proper resolution of
this case with enough uncertainty that we cannot hold that the
district court plainly erred in imposing the 12-point
enhancement. Accordingly, we must reject Gutierrez’s contention
that the district court imposed a sentence that was plainly
procedurally unreasonable.
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III.
Gutierrez’s challenge to the substantive reasonableness of
his sentence fares no better. In reviewing a sentence for
substantive reasonableness, we take “into account the totality
of the circumstances, including the extent of any variance from
the Guidelines range.” Gall, 552 U.S. at 51. In reviewing an
above-Guidelines sentence, we “consider the extent of the
deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.” Id. at 50.
A major departure should be supported by a more significant
justification than a minor one. Id. But an appellate court
“must give due deference to the district court’s decision that
the § 3553(a) factors, on a whole, justify the extent of the
variance.” Id. at 51.
After considering the Section 3553(a) factors, the district
court imposed a 78-month sentence, finding this sentence
“necessary to promote respect for the law and to afford adequate
deterrence to criminal conduct, not just by this defendant but
by others.” The court noted Gutierrez’s history of six illegal
reentries, and emphasized that almost each reentry was
accompanied by new violations of the law -- including “firing a
firearm into an occupied dwelling,” “drug convictions,” “a
conviction for indecent exposure,” and “theft.” The court
pointed out that Gutierrez received lenient treatment with
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respect to many of his past crimes, but nevertheless continued
to commit new ones. After expressing sympathy regarding the
violence Gutierrez endured in Mexico, the court admonished that
this violence did not excuse Gutierrez’s repeated violations of
United States law. The court concluded that Gutierrez’s
“pattern of being deported and returning, deported and
returning, deported and returning, and with almost every one of
these returns there being additional crimes on the criminal
history,” warranted a 30-month upward variance.
Gutierrez claims that the district court’s reasoning does
not justify a 76-month sentence. He contends that the
Guidelines already account for his criminal history, and that
the upward variance therefore double-counted his past crimes.
We cannot agree. Gutierrez illegally returned to the United
States six times. Although the Guidelines accounted for some of
his criminal history, he was, as he concedes, deported several
times without facing criminal charges. The district court
reasonably could conclude that 30 additional months were
necessary to deter Gutierrez from reentering and violating the
law again. The court acted within its discretion in sentencing
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Gutierrez to 78 months’ imprisonment; the sentence was not
substantively unreasonable. *
IV.
For these reasons, the judgment of the district court is
AFFIRMED.
*
Gutierrez also claims that the district court erred by
failing to provide him with advance notice of its intent to vary
upwards from the PSR’s recommended Guidelines range. But
Gutierrez concedes that Irizarry v. United States, 553 U.S. 708,
716 (2008), forecloses this argument.
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