United States v. Gutierrez

Case: 22-50832 Document: 00516775998 Page: 1 Date Filed: 06/06/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50832
Summary Calendar FILED
____________ June 6, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Anthony Gutierrez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:21-CR-49-2
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Anthony Gutierrez appeals the 360-month sentence imposed
following his conviction for conspiracy to possess with intent to distribute
500 grams or more of methamphetamine. Gutierrez contends that the
district court erred by relying on evidence to enhance his sentence that was
never disclosed to the defense, that his criminal history score was incorrectly
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50832 Document: 00516775998 Page: 2 Date Filed: 06/06/2023
No. 22-50832
calculated, and that the district court incorrectly applied an enhancement for
imported methamphetamine. We affirm.
I.
For preserved issues, this court “review[s] the district court’s
interpretation or application of the Sentencing Guidelines de novo and its
factual findings for clear error.” United States v. Trujillo, 502 F.3d 353, 356
(5th Cir. 2007). Unpreserved issues are reviewed for plain error. Puckett v.
United States, 556 U.S. 129, 135 (2009). To demonstrate plain error,
Gutierrez must show an error that is clear or obvious and that affects his
substantial rights. See id. To establish that a sentencing error affected
substantial rights, Gutierrez must show “a reasonable probability that, but
for the district court’s misapplication of the Guidelines, he would have
received a lesser sentence.” United States v. Martinez-Rodriguez, 821 F.3d
659, 663-64 (5th Cir. 2016) (internal quotation marks and citation omitted).
A district court may adopt the facts in a presentence report (PSR)
without additional inquiry “if those facts have an adequate evidentiary basis
with sufficient indicia of reliability and the defendant does not present
rebuttal evidence or otherwise demonstrate that the information in the PSR
is unreliable.” Trujillo, 502 F.3d at 357 (internal quotation marks and citation
omitted). Nevertheless, the sentencing court must afford defense counsel an
opportunity to comment on the information considered when determining
“an appropriate sentence.” Fed. R. Crim. P. 32(i)(1)(C). Likewise,
U.S.S.G. § 6A1.3 provides that “[w]hen any factor important to the
sentencing determination is reasonably in dispute, the parties shall be given
an adequate opportunity to present information to the court regarding that
factor.” “The touchstone of Rule 32 is reasonable notice to allow counsel
adequately to prepare a meaningful response and engage in adversary testing
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at sentencing.” United States v. Stanford, 823 F.3d 814, 847 (5th Cir. 2016)
(internal quotation marks, alterations, and citation omitted).
II.
The district court did not err by applying the enhancement under
U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon based on the
PSR’s recitation of a transcript of a telephone call intercepted by the
Government during the investigation. See United States v. Fields, 932 F.3d
316, 320 (5th Cir. 2019). When Gutierrez objected to the district court’s
reliance on the call intercept at sentencing, the district court appropriately
offered to continue the hearing to afford Gutierrez an opportunity to review
the intercept and provide a response. See Irizarry v. United States, 553 U.S.
708, 715–16 (2008). But Gutierrez declined, thereby waiving his right to
complain on appeal about the lack of opportunity to address the evidence.
See Stanford, 823 F.3d at 847; see also United States v. Arviso-Mata, 442 F.3d
382, 384 (5th Cir. 2006). Moreover, Gutierrez did not offer any evidence
rebutting the call transcript in the PSR, which established that Gutierrez
received a firearm as partial payment for methamphetamine. See Trujillo, 502
F.3d at 357.
Gutierrez did not object to his criminal history score in the district
court, so we review the issue for plain error. Puckett, 556 U.S. at 135. He fails
to show that the error in assessing two criminal history points for a prior
sentence that was imposed more than 10 years ago affected his substantial
rights. See U.S.S.G. § 4A1.2(e)(2); Puckett, 556 U.S. at 135. A lower
criminal history category of V combined with Gutierrez’s offense level of 39
produces the same guidelines imprisonment range of 360 months to life. See
U.S.S.G. Ch. 5, Pt. A (sentencing table). Thus, he cannot demonstrate that,
but for the error, he would have received a lesser sentence. See Martinez-
Rodriguez, 821 F.3d at 663–64.
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Finally, Gutierrez challenges the application of the importation
enhancement under U.S.S.G. § 2D1.1(b)(5) because there was no evidence
establishing that he knew the methamphetamine was imported. As Gutierrez
concedes, this argument is foreclosed by our precedent. See United States v.
Serfass, 684 F.3d 548, 552 (5th Cir. 2012).
The district court’s judgment is AFFIRMED.
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