United States v. Gutierrez

79 F.4th 198

UNITED STATES of America, Appellee, v. Henri Salvador GUTIERREZ, Defendant, Appellant.

No. 22-1157

United States Court of Appeals, First Circuit

August 29, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge]

Stephen Super, with whom George F. Gormley was on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Joshua S. Levy, United States Attorney, was on brief, for appellee.

Before Barron, Chief Judge, Howard and Montecalvo, Circuit Judges.

MONTECALVO, Circuit Judge.

In this sentencing appeal, Henri Salvador Gutierrez asserts that the United States District Court for the District of Massachusetts erred in imposing a sentencing enhancement for the use or attempted use of a minor in the commission of the offense under the United States Sentencing Guidelines ("Guidelines"). See U.S.S.G. § 3B1.4 ("If the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense, increase by 2 levels."). On appeal, Salvador Gutierrez argues that the district court erred (1) in applying the enhancement based on the reasonably foreseeable use of minors by coconspirators; (2) in applying the enhancement based on Salvador Gutierrez's affirmative actions to use and involve minors in the commission of the offense; and (3) in creating an unwarranted sentencing disparity when it applied the minor-use enhancement to him. Because Salvador Gutierrez's argument relative to the first issue is foreclosed by the law of the circuit doctrine, he waived his argument relative to the second issue, and his remaining argument is without merit, we affirm the challenged sentence.

I. Background

The parties do not dispute the underlying facts. "Where, as here, a sentencing appeal follows a guilty plea, we glean the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report . . . , and the record of the disposition hearing." United States v. Rijos-Rivera, 53 F.4th 704, 706 (1st Cir. 2022) (quoting United States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009)).

In October 2019, a federal grand jury returned a first superseding indictment charging Salvador Gutierrez, alongside five codefendants, with participation in a Racketeer Influenced and Corrupt Organizations Act ("RICO") conspiracy. The indictment alleged that Salvador Gutierrez was "employed by and associated with" MS-13¹ and that on or about July 30, 2018, he and others deliberately murdered Herson Rivas. On May 20, 2021, the government filed a superseding information, adding the allegation that Salvador Gutierrez, with others, deliberately murdered Luis Orellano Ruano on or about December 24, 2016.

On June 4, 2021, Salvador Gutierrez pled guilty to one count of RICO conspiracy in violation of 18 U.S.C. § 1962(d). In doing so, he admitted to murdering Rivas and Ruano.

The probation office prepared a presentence investigation report ("PSR") for Salvador Gutierrez. In calculating the base offense level for the RICO conspiracy, the PSR treated the Rivas murder and the Ruano murder as if they were separate counts of conviction. See U.S.S.G. § 2E1.1, Application Note 1 ("Where there is more than one underlying offense [to a RICO conviction], treat each underlying offense as if contained in a separate count of conviction for the purposes of" determining the base offense level.). The PSR assigned a base offense level of 43 for each count of conspiracy to murder. However, for conspiracy to murder Rivas, the PSR added a two-level enhancement, pursuant to U.S.S.G. § 3B1.4, for using a minor "to commit the offense or assist in avoiding detection of, or apprehension for, the offense." Application of the minor-use enhancement resulted in an adjusted offense level of 45 for conspiracy to murder Rivas.

Applying a multi-count adjustment, the PSR calculated a combined adjusted offense level of 47. See U.S.S.G. § 3D1.4. That number was reduced by three levels for "acceptance of responsibility," for a total offense level of 44. See id. § 3E1.1(a), (b). The total offense level of 44 was treated as an offense level of 43. See id. ch. 5, pt. A, Application Note 2 ("An offense level of more than 43 is to be treated as an offense level of 43."). The total offense level, combined with Salvador Gutierrez's criminal-history category, resulted in an advisory-sentencing range of life imprisonment.

Salvador Gutierrez raised several objections to the PSR. As is relevant here, he objected to the PSR's recommended two-level increase for minor use, maintaining that he did not "use" a minor in the murder of Rivas because he did not direct or lead a minor during the commission of the crime. Probation responded that as an older and higher-ranking member of MS-13, Salvador Gutierrez likely had influence over juveniles such that he encouraged and used them in his criminal activities. Relying on United States v. Patrick, 248 F.3d 11 (1st Cir. 2001), probation also noted that the minor-use enhancement can be based on the reasonably foreseeable use of a minor by a codefendant. Thus, probation contended, even if Salvador Gutierrez did not personally use a minor, it was reasonably foreseeable that his codefendants would use minors to further MS-13's activities.

Salvador Gutierrez also filed a sentencing memorandum which, among other things, argued that the minor-use enhancement was inapplicable and therefore his total offense level should be 42. A total offense level of 42 would result in an advisory-sentencing range of 360 months to life imprisonment. See U.S.S.G. ch. 5, pt. A. Ultimately, Salvador Gutierrez asked the district court to impose a sentence of 400 months.

For its part, the government asked for life imprisonment. The government argued that a life sentence was appropriate under the 18 U.S.C. § 3553(a) sentencing factors because Salvador Gutierrez "brutally killed two teenagers," "showed little remorse for his crimes," and exhibited "deplorable conduct while in pretrial custody." In response to Salvador Gutierrez's sentencing memorandum, the government argued that the minor-use enhancement applied because "Salvador [Gutierrez] personally associated with multiple minors as part of the charged racketeering conspiracy." In support, the government argued that Salvador Gutierrez recruited a juvenile to the gang and "committed the July 2018 murder [of Rivas] with a juvenile." Relying on Patrick, the government also maintained that the minor-use enhancement could be based on the reasonably foreseeable use of juveniles by coconspirators and that Salvador Gutierrez "knew that the gang would use a minor to further the gang's activities."

In preparing to schedule sentencing for Salvador Gutierrez and his codefendants, the district court indicated that its first task was to correctly calculate the guidelines range and then to impose a sentence based on the sentencing factors described in 18 U.S.C. § 3553(a). Salvador Gutierrez continued to argue that the minor-use enhancement was not applicable to him because he did not affirmatively involve a minor in the commission of the Rivas murder. Salvador Gutierrez also directly attacked the validity of Patrick, arguing that several other circuits have rejected Patrick's reasonably foreseeable approach in favor of applying the minor-use enhancement only when a defendant, by some affirmative act, uses a minor participant in the crime.

The district court subdivided the sentencing hearing into two parts. It began with hearings on February 7 and 8, 2022, as to the contested portions of the PSR that impacted calculation of the guidelines range. At sentencing, the district court overruled Salvador Gutierrez's objection regarding the minor-use enhancement and found that the enhancement applied to Salvador Gutierrez and his codefendants because "each defendant used a person under 18 to commit the offense."

The district court also found that Salvador Gutierrez directed a minor during the Rivas murder by telling the minor to "move over."² The district court then turned to whether the minor-use enhancement could also be properly applied under Patrick's reasonably foreseeable test. The district court concluded that each defendant "knew . . . and foresaw that minors would be used in the ongoing commission" of the RICO conspiracy and that, therefore, application of the minor-use enhancement was also proper under Patrick.

Despite concluding that the minor-use enhancement was applicable, the district court reiterated that the court's application of the enhancement would not affect the ultimate sentence imposed, which would be driven by the § 3553(a) factors.³ However, the court recognized the government's position that the application of the enhancement should factor into the ultimate sentence and reserved on deciding the question until sentencing. A few days later, on February 11, 2022, the district court entered an order directing the parties to be prepared to address at sentencing "whether the use of a minor as part of the RICO conspiracy to which each defendant pled guilty is material to what sentence is sufficient and no more than necessary . . . in order to serve the statutory purposes of sentencing."

On February 16, 2022, the court convened a sentencing hearing. The district court confirmed that application of the minor-use enhancement raised Salvador Gutierrez's guidelines range to life imprisonment, and Salvador Gutierrez again objected to application of the enhancement.

After hearing the arguments of counsel and Salvador Gutierrez's allocution, the district court imposed a sentence of life imprisonment. The court considered the § 3553(a) sentencing factors and, while recognizing the hardships of Salvador Gutierrez's upbringing in El Salvador, concluded that Salvador Gutierrez willingly joined MS-13 and participated in two murders. The...