United States of America v. JOSE ANTONIO GUTIERREZ, AKA Jose Fogal, AKA Jose Fogel, AKA Jose Antonio Guiterrez,…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE ANTONIO GUTIERREZ, AKA
Jose Fogal, AKA Jose Fogel, AKA Jose
Antonio Guiterrez, AKA Jose Guiterrez-
Fogal,
Defendant - Appellant.
No. 14-10041
D.C. No. 4:12-cr-00293-WBS-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William B. Shubb, Senior District Judge, Presiding
Submitted August 13, 2015**
San Francisco, California
FILED
AUG 17 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: KOZINSKI and TALLMAN, Circuit Judges, and ROSENTHAL,***
District Judge.
Jose Antonio Gutierrez appeals his felony conviction for assaulting a federal
officer in violation of 18 U.S.C. § 111(a), arguing that (1) the initial and supplemental
jury instructions constructively amended the indictment, and (2) there was insufficient
evidence to support the conviction. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
Because Gutierrez failed to object below, we review the district court’s
instructions for plain error. United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir.
2006). The district court properly charged the jury with Ninth Circuit Model Criminal
Jury Instruction § 8.3, see United States v. Acosta-Sierra, 690 F.3d 1111, 1118 n.3
(9th Cir. 2012), and the supplemental instruction correctly defined conduct that would
qualify as forcible assault, cf. United States v. Sommerstedt, 752 F.2d 1494, 1496–97
(9th Cir. 1985) (“[A] defendant may be convicted of violating section 111 if he or she
uses any force whatsoever . . . .”). The statute uses physical contact as a means of
distinguishing between a misdemeanor and felony assault of a federal officer. 18
U.S.C. § 111(a); United States v. Chapman, 528 F.3d 1215, 1218–19 (9th Cir. 2008).
In addition to an instruction on the definition of forcible assault—which subsumes
*** The Honorable Lee H. Rosenthal, United States District Judge for the
Southern District of Texas, sitting by designation.
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descriptions of assault that may constitute a misdemeanor offense—the district court
also instructed the jury that it could only convict if the Government proved that “the
Defendant made physical contact with Deputy U.S. Marshal Shakeri.” The district
court therefore did not constructively amend the indictment.
Review of the trial testimony and video images shows that, when “view[ing]
the evidence in the light most favorable to the prosecution,” a “rational trier of fact
could have found [Gutierrez] guilty of each element of the crime beyond a reasonable
doubt.” United States v. Heller, 551 F.3d 1108, 1113 (9th Cir. 2009).
AFFIRMED.
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