United States v. Carlos Gutierrez-Flores
684 F. App'x 645
| 9th Cir. | 2017Background
- Carlos Gutierrez-Flores, a Mexican national, was previously convicted in 2002 under Cal. Penal Code § 288(a) (lewd or lascivious acts with a child under 14) and deported; later convicted under 8 U.S.C. § 1326(a) for unlawful reentry and again deported, with supervised release remaining in the earlier case.
- In 2015 Gutierrez was arrested attempting to enter the U.S. using another person’s Permanent Resident Card; charged with attempted reentry under § 1326(a) and the government petitioned to revoke his earlier supervised release for committing another federal crime.
- At the supervised-release revocation hearing a Border Patrol agent (not present at the arrest) testified from a report describing the attempted reentry; the district court found a violation and revoked release; Gutierrez later pled guilty in the new § 1326(a) case.
- At consolidated sentencing the district court applied a 16-level Guidelines enhancement under U.S.S.G. § 2L1.2(b)(1)(A) based on its conclusion that Gutierrez’s § 288(a) conviction categorically constituted the Guidelines’ term “sexual abuse of a minor.”
- Gutierrez challenged (1) the categorical determination that § 288(a) is “sexual abuse of a minor” and (2) admission of the hearsay border-patrol testimony without performing the Comito confrontation/ balancing test.
- The Ninth Circuit affirmed both the enhancement and the supervised-release revocation, concluding § 288(a) is categorically sexual abuse of a minor and that any Confrontation/ hearsay error was harmless in light of Gutierrez’s guilty plea in the new case.
Issues
| Issue | Plaintiff's Argument (Gutierrez) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 288(a) categorically qualifies as the Guidelines generic “sexual abuse of a minor” for a § 2L1.2 enhancement | § 288(a) is broader: it can convict child defendants or conduct causing no physical/psychological harm; thus it does not match the federal generic offense | Precedent (Medina-Villa and related cases) defines generic sexual abuse of a minor to include § 288(a); younger children are per se abused when used for sexual gratification | Affirmed: § 288(a) is categorically “sexual abuse of a minor” under controlling Ninth Circuit precedent |
| Whether admitting Border Patrol officer’s hearsay (another officer’s report) without performing the Comito confrontation/balancing test violated rights and requires reversal of revocation | Admission without Comito weighing was error and violated the defendant’s confrontation rights; revocation should be vacated | Court erred in failing to perform Comito balancing, but error was harmless because Gutierrez’s subsequent guilty plea in the § 1326 case independently established the supervised-release violation; district court could reopen record to take judicial notice of the plea | Harmless error: admission without Comito balancing was error but did not require reversal because plea evidence rendered the hearsay surplusage |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (categorical-approach framework for comparing statute elements)
- United States v. Medina-Villa, 567 F.3d 507 (9th Cir.) (elements of generic “sexual abuse of a minor” and holding § 288(a) satisfies it)
- United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999) (use of young children for sexual gratification is per se maltreatment)
- United States v. Farmer, 627 F.3d 416 (9th Cir. 2010) (younger children are per se abused for sexual-conduct analysis)
- Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (related definitional analysis of sexual offenses)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (standard for when panel precedent may be treated as overruled by intervening higher authority)
- United States v. Comito, 177 F.3d 1166 (9th Cir. 1999) (required balancing of defendant’s confrontation interest against government good cause for denying confrontation)
- United States v. Verduzco, 330 F.3d 1182 (9th Cir. 2003) (district courts’ ability to rely on subsequent guilty pleas to establish supervised-release violations)
- United States v. Suarez-Rosario, 237 F.3d 1164 (9th Cir. 2001) (district court discretion to reopen evidence)