United States v. Gutierrez

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL PATRICK GUTIERREZ, Defendant-Appellant.

No. 22-8045

United States Court of Appeals, Tenth Circuit

October 27, 2023

(D.C. No. 1:22-CR-00007-ABJ-1) (D. Wyo.)

Before PHILLIPS, BALDOCK, and McHUGH, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Immediately upon his release from a twelve-year federal prison sentence for narcotics trafficking, Defendant Daniel Patrick Gutierrez, a self-described "meth kingpin," conspired to trade firearms and cash for more than seven pounds of methamphetamine from a supplier in Colorado. R Vol. II at 63, 69-70. After a week-long trial, a jury convicted Defendant of (1) conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C §§ 846, 841(a)(1), (b)(1)(A); (2) use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); (3) distribution of 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A); and (4) felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). R. Vol. I at 90. At sentencing, the Government requested an enhancement pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851 because Defendant had two prior felony drug offenses. The district court applied the enhancement and sentenced Defendant to a mandatory minimum imprisonment sentence of 300 months on Counts One and Three, 120 concurrent months on Count Two, and 60 consecutive months on Count Four. R. Vol. I at 91; R. Vol. III at 950.

Defendant raises three issues on appeal.^[1] First, he argues the district court erred by permitting a Government expert witness to opine on the meaning of clear, noncoded text messages between Defendant and coconspirator Joseph Hooker. Second, Defendant contends the district court erred by admitting an officer's eyewitness testimony identifying Defendant as the individual who fled the scene of a traffic stop where police recovered methamphetamine from Defendant's coconspirator. Third, Defendant argues his sentence violates the Eighth Amendment after Miller v. Alabama, 567 U.S. 460 (2012), because he committed one of the two predicate offenses supporting his statutory sentencing enhancement as a juvenile. We review Defendant's two unpreserved evidentiary challenges for plain error and his sentencing argument de novo. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

The parties are familiar with this case's procedural history and the facts elucidated at trial. We recount only what is necessary to resolve the issues before us today. On December 22, 2020, Wyoming Department of Criminal Investigations ("DCI") officers arranged a controlled purchase of 3.5 grams of methamphetamine from Defendant's coconspirator Joseph Hooker at the C'mon Inn in Evansville, Wyoming. R. Vol. III at 278-282; 334-35. Two weeks later, officers arrested Hooker at the same location. Id. at 351. In a search of Hooker's hotel room and vehicle, officers recovered approximately 200 grams of methamphetamine, empty jeweler bags consistent with narcotics distribution, a duffel bag containing two pistols and ammunition, and Hooker's cell phone. Id. at 302-08, 319, 671.

Hooker's cell phone data contained over three hundred text messages between Hooker and two cell phone numbers linked to Defendant. Id. at 352; Gov. Ex. 400, 401. In these texts, Defendant and Hooker arranged joint purchases of methamphetamine from a third-party source in Denver, Colorado, later identified to be Justin Duran. R. Vol. III at 427-29, 521, 642. DCI Special Agent Jason Ruby interpreted twenty text messages at trial and opined that they suggested Hooker and Defendant jointly purchased one-pound quantities of methamphetamine from Duran at least three times. Id. at 682-96; Aplt's Op. Br. at 14-16. Special Agent Ruby explained that his opinion was corroborated by "Cash App" and "Walmart2Walmart" transaction records that showed Hooker paid Defendant's associates and family members for his share shortly before the suspected methamphetamine purchases. R. Vol. III at 423-36, Vol. II at 227.

Preston Wisenbaker, a cooperating coconspirator, testified that he accompanied Defendant on three different trips to Denver to purchase one pound of methamphetamine from Duran between late 2020 and Wisenbaker's arrest in July 2021. R. Vol. III at 510, 518-30. On the first trip, Defendant and Wisenbaker traded an AR-15 rifle, two handguns, and cash for approximately one pound of methamphetamine. Id. at 520-22. A few weeks later, Wisenbaker traveled to Denver again with Defendant and paid cash for a pound of methamphetamine from the same supplier. Id. at 525-28. During their third trip, Defendant acted as a middleman in procuring a pound of methamphetamine from Duran for Wisenbaker. Id. at 530. Wisenbaker testified that he continued to sell methamphetamine to Defendant afterward. Id. at 531.

On July 19, 2020, Laramie County Sheriff's Deputy Robert Fertig conducted a traffic stop on a reported stolen vehicle at a "Loaf 'N Jug" gas station in Cheyenne Wyoming. Id. at 570. When Deputy Fertig pulled in behind the vehicle, an unknown male exited the back seat with a black bag and fled on foot across traffic. Id. After a brief foot pursuit, Deputy Fertig allowed the suspect to escape. Id. at 571. He returned to the Loaf 'N Jug to attend to the vehicle's other occupants. Id. Defendant's wife, coconspirator Ashely Gutierrez, also fled the scene. She left behind her purse containing her ID, credit cards, photos of her and Defendant, and approximately 51 grams of methamphetamine. Id. at 574-75. Based on the totality of the circumstances and Deputy Fertig's prior contacts with Defendant, he opined at trial that Defendant was the unknown male who fled the scene. Id. at 590.

On August 13, 2021, a joint law enforcement SWAT team executed a search warrant at Defendant's home. Id. at 187. Defendant surrendered to authorities. Id. In Defendant's bedroom, officers found two rifles, several rounds of ammunition, user quantities of methamphetamine, and a hand-written ledger showing debts for methamphetamine and other controlled substances. Id. at 196-202; Gov. Ex. 118. Officers also discovered a decorative rocking chair, signed by Defendant, with the phrase "Mr. H2O Meth Kingpin" written across the seat. Id. at 200.^[2] Officer David Uhrich identified himself to Defendant and told him he was being charged with conspiracy to distribute methamphetamine in Natrona County, Wyoming. Id. at 190. Defendant then admitted to Uhrich that he had sold to "a couple" people in Casper. Id. Defendant was arrested and taken into custody. R. Vol. II at 58.

II.

Defendant challenges his convictions in Counts One and Three based on his assertion that the district court erroneously admitted two witnesses' testimony at trial. Defendant acknowledges he did not preserve either issue. Aplt's Op. Br. at 3-4. We therefore review for plain error. United States v. Draine, 26 F.4th 1178, 1186 (10th Cir. 2022). Under this standard, we "reverse only if there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Koch, 978 F.3d 719, 724 (10th Cir. 2020) (quotation omitted). An error is plain if it "is clear or obvious at the time of the appeal." Id. (quotation omitted). To be obvious, the error "must be contrary to well-settled law." Id. (quotation omitted). "In general, for an error to be contrary to well-settled law, either the Supreme Court or this court must have addressed the issue." Id. (quotation omitted).

A. Expert Testimony

We first address Defendant's argument that the district court plainly erred by failing to sua sponte limit the scope of Special Agent Ruby's testimony interpreting text messages between Defendant and coconspirator Joseph Hooker.

The Government offered Special Agent Ruby as an expert witness in narcotics trafficking without objection from Defendant. R. Vol. III at 217. The district court qualified him as an expert. Id. at 218. Special Agent Ruby did not participate in Defendant's investigation firsthand. Id. at 668. Instead, he opined as an expert that Defendant conspired with Joseph Hooker to purchase and distribute methamphetamine based on his review of the evidence and his seventeen years of experience in law enforcement investigating drug trafficking. Id. at 219-21, 669, 676. Special Agent Ruby testified about the meaning of twenty specific text messages between Defendant and Hooker at trial. Id. at 682-96; Aplt's Op. Br. at 14-16. While interpreting the texts, he explained coded language and slang related to drugs and firearms, the street value of drugs, and drug distribution mechanics. R. Vol. III at 682-96. He repeatedly affirmed that his testimony was based on his training and experience as a law enforcement officer. R. Vol. III at 677-78, 687, 689. Defendant does not provide individualized analysis of each text message for error. Rather, he makes a general objection to Special Agent Ruby's interpretation of all twenty text messages. He asserts two errors under Federal Rule of Evidence 702: (1) Special Agent Ruby's testimony was irrelevant because the texts had plain meanings that did not require explanation by an expert; and (2) there is no record that Special Agent Ruby reliably applied his experience and training to reach his opinions. Aplt's Op. Br. at 29-30.

Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the

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