United States v. Juan C. Gutierrez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 8, 2010
No. 09-12917 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-80171-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN C. GUTIERREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 8, 2010)
Before DUBINA, Chief Judge, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Appellant Juan Carlos Gutierrez appeals his 216-month sentence for
conspiracy to possess cocaine with the intent to distribute. During sentencing, the
government established that the Varela Drug Ring—the conspiracy in which
Gutierrez was a member—routinely carried guns to protect against a home
invasion, and its operations included taking drugs from others by force.
Additionally, Gutierrez personally participated, in some form, in a drive-by
shooting and an attempted robbery against another drug dealer. Moreover, after
members of the Varela Drug Ring murdered Jose Escobedo, a cocaine supplier,
and his family, Gutierrez helped ransack the Escobedo home looking for money
and drugs, and attempted to conceal evidence. Based on these facts, the district
court applied a base offense level of 43, pursuant to U.S.S.G. § 2D1.1(d)(1)’s
cross-reference to the first-degree murder guideline (§ 2A1.1), for the Escobedo
murders.
On appeal, Gutierrez argues that the district court erred in applying the
murder cross-reference guideline. Gutierrez asserts that, under the guidelines, the
evidence failed to demonstrate that he reasonably could have foreseen the
Escobedo murders, or that they were within the scope of the activity he agreed to
undertake as a member of the conspiracy.
We review the district court’s application and interpretation of the
sentencing guidelines de novo, and its underlying factual findings for clear error.
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United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007). Under the clear error
standard, we will not disturb the district court’s findings “unless we are left with a
definite and firm conviction that a mistake has been committed.” United States v.
Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009), cert. denied, 130 S. Ct. 809 (2009)
(quoting United States v. Crawford, 487 F.3d 1174, 1177 (11th Cir. 2005)). We
may affirm on any basis supported by the record, even if not relied upon by the
district court. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008),
cert. denied, 129 S. Ct. 288 (2008).
Under U.S.S.G. § 2D1.1, “[i]f a victim was killed under circumstances that
would constitute murder under 18 U.S.C. § 1111 had such killing taken place
within the territorial or maritime jurisdiction of the United States, [a sentencing
court should] apply § 2A1.1 (First Degree Murder).” U.S.S.G. § 2D1.1(d)(1)
(2008). First degree murder receives a base offense level of 43. U.S.S.G. § 2A1.1.
That offense level applies to both premeditated killings, and to felony murder such
as bank robbery. Id. comment. (nn.1-2).
When attributing the actions of co-conspirators for sentencing
purposes—including the application of cross-references—the guidelines provide
for consideration, “in the case of a jointly undertaken criminal activity[,] . . . [of]
all reasonably foreseeable acts and omissions of others in furtherance of the jointly
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undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). The guidelines go on to
state that “[i]n order to determine the defendant’s accountability for the conduct of
others under subsection (a)(1)(B), the court must first determine . . . [] the scope of
the specific conduct and objectives embraced by the defendant’s agreement[]”. Id.
comment. (n.2). Furthermore, “conduct of others that was not in furtherance of the
criminal activity jointly undertaken by the defendant, or was not reasonably
foreseeable in connection with that criminal activity, is not relevant conduct.” Id.
Reasonable foreseeability and conduct within the scope of the agreement are
two separate elements that the government must prove in order to hold a defendant
accountable for co-conspirator actions. United States v. Reese, 67 F.3d 902, 907-09
(11th Cir. 1995) (holding that the district court erred in attributing certain
quantities of cocaine to the defendants based only on their basic knowledge of the
organization).
Although Gutierrez did not personally participate in the Escobedo murders,
and there was no evidence that he had direct knowledge the murders would occur,
the record demonstrates that he willingly associated himself with an organization
that he knew both carried guns and used guns on others. Furthermore, Gutierrez’s
actions after the Escobedo murders took place indicated his complicity in a
conspiracy whose acts were becoming increasingly violent. These actions indicate
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that the possibility that a murder—or murders—would occur in furtherance of the
Varela Drug Ring’s activities was something that was both reasonably foreseeable
to Gutierrez and within the scope of his participation in the conspiracy.
Accordingly, we hold that the district court did not err in applying the U.S.S.G.
§ 2D1.1(d)(1) cross-reference guideline against Gutierrez for the murder of the
Escobedo family, and we affirm Gutierrez’s sentence.
AFFIRMED.
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