United States v. Gutierrez

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 15, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2109
(D.C. No. 1:15-CR-03955-JB-1)
DARRYL J. GUTIERREZ, (D.N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.**
_________________________________
Darryl J. Gutierrez, a federal inmate proceeding pro se1, appeals his conviction
and sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
1
We construe Mr. Gutierrez’s pleadings liberally but we will not act as his
advocate. United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
BACKGROUND
In 2017, a jury convicted Mr. Gutierrez of one count of obstructing the
administration of tax laws, see 26 U.S.C. § 7212(a), and ten counts of filing a false
tax return, see 26 U.S.C. § 7206(1). The district court judge sentenced Mr. Gutierrez
to 33 months’ imprisonment and one year of supervised release. Mr. Gutierrez timely
filed a notice of appeal and waived his right to counsel.
DISCUSSION
Mr. Gutierrez lodges several arguments on appeal. Most are frivolous, so we
do not address them in detail.2 See Lonsdale v. United States, 919 F.2d 1440, 1448
(10th Cir. 1990) (recognizing that courts are “not required to expend judicial
resources” entertaining frivolous arguments). But Mr. Gutierrez raises four
nonfrivolous arguments.
First, Mr. Gutierrez argues that the district court violated his Sixth Amendment
right to counsel. At the beginning of the case, the district court appointed counsel to
represent Mr. Gutierrez.3 Mr. Gutierrez remained represented by counsel until after
2
Mr. Gutierrez lodges several typical tax-protestor claims. For example, Mr.
Gutierrez argues that the statute of his conviction—26 U.S.C. § 7212(a)—is
unenforceable because it lacked proper publication in the Federal Register. He also
argues that the United States and the United States of America are not the same entity
and that New Mexico Nationals cannot serve as federal jurors because they are not
U.S. citizens. We need not “refute these arguments with somber reasoning and
copious citation to precedent; to do so might suggest that these arguments have some
colorable merit.” United States v. Vance, 215 F.3d 1338, at *2 n.1 (10th Cir. 2000)
(unpublished) (quoting Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984)).
3
The district court first appointed the Office of the Federal Public Defender to
represent Mr. Gutierrez. The court removed the Federal Public Defenders from the
2
Mr. Gutierrez’s sentencing hearing. After sentencing but before entry of judgment,
counsel moved to withdraw. As grounds, counsel stated that he had developed a
material conflict with Mr. Gutierrez which prevented him from continuing his
representation. The district court granted the motion.4 Mr. Gutierrez did not seek new
counsel and elected to proceed pro se on appeal.
Sometime after the court granted counsel’s motion to withdraw, it entered two
memorandum orders formalizing earlier decisions made before the sentencing
hearing.5 The court then entered the judgment and sentence. Mr. Gutierrez claims that
the court’s release of defense counsel constitutes a constitutional violation and
requires reversal. Op. Br. at 12-13. We disagree.
“The Sixth Amendment secures to a defendant who faces incarceration the right
to counsel at all ‘critical stages’ of the criminal process.” Iowa v. Tovar, 541 U.S. 77,
87 (2004). In this case, we need not decide whether Mr. Gutierrez had a constitutional
case after it found that Mr. Gutierrez could afford counsel. Later, the court appointed
a different CJA attorney to represent Mr. Gutierrez. This attorney represented Mr.
Gutierrez until moving to withdraw after Mr. Gutierrez’s sentencing.
4
The limited amount of evidence available in the record seems to indicate that
Mr. Gutierrez agreed with the court’s decision to permit his counsel to withdraw. Mr.
Gutierrez never sought new counsel before judgment was entered, and Mr. Gutierrez
waived his right to counsel on appeal.
5
The first order dealt with a pre-trial motion filed by Mr. Gutierrez which
claimed that the court held no power over him. The court orally denied the motion
before trial but told Mr. Gutierrez that it would write an opinion on the matter. The
second order concerned jury instructions, admissible evidence, and Mr. Gutierrez’s
claim that the United States must provide him grand jury transcripts before trial. As
before, the court had already ruled on these issues but formalized its decisions in the
written order.
3
right to counsel during the time between sentencing and the entry of the final judgment.
Even if we assume that Mr. Gutierrez was entitled to counsel during this period, we
would hold that the absence of counsel was harmless.
Harmless-error review applies to Sixth Amendment claims such as this. United
States v. Lott, 433 F.3d 718, 723 (10th Cir. 2006). On direct appeal, constitutional
harmless-error review requires us to consider whether the government “has proved
beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.” Acosta v. Raemisch, 877 F.3d 918, 933 (10th Cir. 2017) (citing Chapman v.
California, 386 U.S. 18, 24 (1967)). The government has made this showing.
As the government points out, Mr. Gutierrez had already been convicted and
sentenced when his counsel moved to withdraw. After counsel had withdrawn, the
district court issued two orders and the final judgment. The orders merely repeated
decisions made by the court before and during trial. The final judgment formalized the
oral pronouncement made by the court at sentencing. We have no doubt that these
filings would not have been altered had Mr. Gutierrez continued to be represented by
counsel.
Second, Mr. Gutierrez claims that the government failed to prove an essential
element of § 7212(a). Specifically, he claims that the government failed to prove that
during the Internal Revenue Service (IRS) investigation, he had used or threatened to
use physical force against any agent or employee of the United States. But the use of
force was not an element of the charged crime.
4
A jury convicted Mr. Gutierrez of violating 26 U.S.C. § 7212(a). As one
element of that crime, the government must prove that the defendant did “corruptly
or by force or threats of force . . . obstruct or impede[]” the administration of Title 26
of the United States Code. Thus, the government can secure a conviction by proving
that the defendant acted in one of three different ways: (1) by acting corruptly, (2) by
using force, or (3) by threatening force. See United States v. Valenti, 121 F.3d 327,
330-331 (7th Cir. 1997) (detailing how the statute can be violated in multiple ways);
United States v. Bostian, 59 F.3d 474, 477 (4th Cir. 1995) (same).
In its indictment, the grand jury charged that Mr. Gutierrez had “corruptly
endeavor[ed] to obstruct and impede the due administration of the internal revenue
laws.” R. vol. I at 15. And the court instructed the jury that in order to convict Mr.
Gutierrez under § 7212 it had to find that Mr. Gutierrez acted “corruptly” to “obstruct
or impede the due administration of the internal revenue laws as charged.” R. vol. II
at 258. So contrary to Mr. Gutierrez’s claim, the government was not required to
prove that Mr. Gutierrez used, or threatened to use, force.
Third, Mr. Gutierrez argues that IRS agents violated his rights under Miranda
v. Arizona, 384 U.S. 436 (1966). In support, Mr. Gutierrez alleges that IRS agents
failed to read him his Miranda rights when he was “arrested, handcuffed, transported,
booked, questioned, arraigned and released.” Op. Br. at 24. But Mr. Gutierrez did not
raise this argument below, meaning we review the issue for plain error.
Under plain-error review, Mr. Gutierrez must show the following four things:
“(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)
5
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Mendoza, 698 F.3d 1303, 1309 (10th Cir. 2012). We need not
address the first two prongs of the plain-error test because Mr. Gutierrez has failed to
demonstrate that any potential error affected his substantial rights. See United States
v. Gallegos, 784 F.3d 1356, 1362-63 (10th Cir. 2015) (declining to address the first
and second prong of the plain-error test when defendant failed to satisfy the third and
fourth prongs).
To demonstrate that an error affects his substantial rights, Mr. Gutierrez must
show that “but for the error claimed, the result of the proceeding would have been
different.” Mendoza, 698 F.3d at 1310. Mr. Gutierrez has not made this showing.
Nowhere in Mr. Gutierrez’s brief does he point us to any statements obtained in
violation of Miranda that were used to secure his conviction. Thus, even if we
assumed a Miranda violation, Mr. Gutierrez has provided us with no record evidence
demonstrating that this claimed error affected his substantial rights. Accordingly, Mr.
Gutierrez has failed to satisfy the plain-error standard of review.
Fourth, Mr. Gutierrez claims that the district court erred by imposing a
supervised release condition that requires him to file an income tax return. According
to Mr. Gutierrez, such a requirement violates his right against self-incrimination
protected by the Fifth Amendment. Once again, Mr. Gutierrez did not advance this
argument below and, accordingly, our review is for plain error.
Here, Mr. Gutierrez fails at the first step of the plain-error analysis. He cannot
show error let alone error that is plain. This court has already rejected the argument
6
that requiring a citizen to file a tax return violates the Fifth Amendment. United
States v. Moore, 692 F.2d 95, 97 (10th Cir. 1979) (rejecting the claim that the Fifth
Amendment provides a defense against failing to file a tax return) (citing United
States v. Sullivan, 274 U.S. 259 (1927)). Accordingly, we conclude that the district
court did not err when it imposed a condition of supervised release requiring Mr.
Gutierrez to submit federal income tax returns.
CONCLUSION
Having thoroughly reviewed Mr. Gutierrez’s briefs, the government’s brief,
and the record in this case, we reject all of Mr. Gutierrez’s arguments on appeal.
Accordingly, we affirm Mr. Gutierrez’s conviction and sentence.
Entered for the Court
Gregory A. Phillips
Circuit Judge
7