United States v. 2020-10-26 | 19-10382 | USA V. JOSE GUTIERREZ-GOMEZ | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE ELFEGO GUTIERREZ-GOMEZ,
Defendant-Appellant.
No. 19-10382
D.C. No.
2:19-cr-00006-KJM-1
MEMORANDUM
*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Submitted October 20, 2020
**
San Francisco, California
Before: CLIFTON, N.R. SMITH, and R. NELSON, Circuit Judges.
Defendant Jose Elfego Gutierrez-Gomez appeals his conviction and sentence
for illegally reentering the United States in violation of 8 U.S.C. § 1326(a), (b)(2).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
OCT 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
* *
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

1. Gutierrez-Gomez argues that the district court erred by instructing the jury
that the term “reasonably near” had “no special, legal definition,” as that term
related to the Government’s burden to prove that Gutierrez-Gomez was found
unlawfully present in the United States on a date “reasonably near” the date alleged
in the indictment. Because Gutierrez-Gomez did not properly object to the district
court’s supplemental instruction, we review it for plain error. See United States v.
Varela, 993 F.2d 686, 688 (9th Cir. 1993).
Gutierrez-Gomez first contends that the jury should have been instructed to
consider several “constitutional factors” in determining whether the Government
proved that he was found in the United States on a date reasonably near the date
alleged in the indictment. Certainly, a substantial variance between the proof at
trial and the allegations of the indictment implicates the defendant’s Fifth
Amendment rights “not to be held to answer for a felony except on the basis of
facts which satisfied a grand jury that he should be charged[,] . . . to fair notice of
what he is accused of, and not to be twice put in jeopardy on the accusation.”
United States v. Tsinhnahijinnie, 112 F.3d 988, 992 (9th Cir. 1997). However, (1)
Gutierrez-Gomez does not dispute that he was informed as to the charges against
him, so as to be able to present his defense and not be taken by surprise by the
evidence at trial and (2) he was not likely to be subject to double jeopardy. A
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reasonable jury could have (and did) convict him of being “found in” the United
States and “reasonably near” November 13.
Gutierrez-Gomez cites several of our decisions that have addressed whether
a variance between the date proved at trial and the date alleged in the indictment
was impermissible—i.e., whether the dates were “reasonably near”—and contends
that these decisions compose “a specialized legal definition of ‘reasonably near.’”
See United States v. Hinton, 222 F.3d 664, 672–73 (9th Cir. 2000); United States v.
Casterline, 103 F.3d 76, 78–79 (9th Cir. 1996); Lelles v. United States, 241 F.2d
21, 25 (9th Cir. 1957). However, it is not “so clear-cut” or “so obvious” from our
precedent that every application of a term is an essential component of the term’s
so-called special legal definition. See United States v. Gonzalez-Aparicio, 663 F.3d
419, 428 (9th Cir. 2011) (quoting United States v. Turman, 122 F.3d 1167, 1170
(9th Cir. 1997), abrogated on other grounds by Henderson v. United States, 568
U.S. 266, 277 (2013)). Nor is it “so clear-cut” or “so obvious” that a jury must be
instructed on every application of a term when the jury requests further instruction
on the term’s definition. See id. (quoting Turman, 122 F.3d at 1170).
However, even if the district court committed error (as Gutierrez-Gomez
suggests), his substantial rights were not affected, because there was not “a
significant possibility” of acquittal. See United States v. Brooks, 508 F.3d 1205,
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1208 (9th Cir. 2007) (quoting United States v. Steward, 16 F.3d 317, 320 (9th Cir.
1994)). At trial, Gutierrez-Gomez conceded every element of the crime of illegal
reentry under 8 U.S.C. § 1326(a), (b)(2). His sole defense theory was that the
Government had failed to meet its burden to prove that Gutierrez-Gomez was
found in the United States on a date reasonably near the date alleged in the
indictment—“on or about November 13, 2018.” This theory relied entirely on his
argument that he had not been found unlawfully present in the United States by
immigration authorities until June 6, 2019, when the Government’s fingerprint
expert verified that Gutierrez-Gomez’s fingerprints taken at the county jail
matched those from the DHS file related to his 2012 removal. However, because
this argument finds no support in the trial evidence, there was not “a significant
possibility” of acquittal. See Brooks, 508 F.3d at 1208 (quoting Steward, 16 F.3d at
320). Therefore, there was no plain error. Id.
2. Gutierrez-Gomez argues that the district court erred in denying him a two-
level downward adjustment of his base offense level under the United States
Sentencing Guidelines for “clearly demonstrat[ing] acceptance of responsibility for
his offense.” See U.S. Sentencing Guidelines Manual § 3E1.1(a) (U.S. Sentencing
Comm’n 2018). “We review de novo whether the district court misapprehended the
law” in applying § 3E1.1(a), but whether a “defendant has accepted responsibility
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for his crime is a factual finding that we review for clear error.” United States v.
Tuan Ngoc Luong, 965 F.3d 973, 990 (9th Cir. 2020) (quoting United States v.
Garrido, 596 F.3d 613, 617 (9th Cir. 2010)).
Contrary to Gutierrez-Gomez’s primary argument, there is no indication in
the record that the district court denied him an acceptance-of-responsibility
reduction based on his decision to stand trial. Instead, the district court evaluated
the criteria set forth in Application Note 1 of § 3E1.1. The court determined that
Gutierrez-Gomez did not qualify for an acceptance-of-responsibility reduction,
because he had not “voluntarily surrendered to authorities promptly after
commission of the offense” and his manifestations of acceptance of responsibility
were, at best, untimely. Because Gutierrez-Gomez concedes on appeal “that he did
not surrender promptly,” and it is undisputed that Gutierrez-Gomez remained in the
United States unlawfully for over six years without surrendering to authorities, the
district court’s determination that Gutierrez-Gomez had not demonstrated
acceptance of responsibility for illegally reentering the country was not “illogical,
implausible, or without support in inferences that may be drawn from the facts in
the record.” See United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en
banc).
AFFIRMED.
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