United States v. Sergio Ramirez Gudino , 671 F. App'x 513 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 07 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10556
Plaintiff-Appellee, D.C. No.
5:14-cr-00303-LHK-1
v.
SERGIO RAMIREZ GUDINO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted November 16, 2016
San Francisco, California
Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.
Sergio Ramirez Gudino appeals his conviction of possession with intent to
distribute methamphetamine on the grounds that the district court erroneously
precluded him from asserting a duress defense at trial. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
A year after being charged with one count of possession with intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(viii), Gudino told the district court that he intended to present a
duress defense at trial. The government sought to preclude this defense in a
pretrial motion in limine. Gudino submitted an offer of proof summarizing his
duress claim. In short, Gudino asserted that a man whom Gudino did not know
visited Gudino’s residence and instructed Gudino to sell methamphetamine on
behalf of a narcotics trafficker in Mexico. After one of Gudino’s two brothers was
killed in Lázaro Cárdenas, Michoacán, the same unknown man returned to
Gudino’s residence twice, again instructing Gudino to sell methamphetamine. The
man made threats suggesting that Gudino’s remaining brother—who also lived in
Michoacán—would be killed if Gudino did not sell the methamphetamine.
Allegedly fearing for his remaining brother’s safety, Gudino attempted to sell the
methamphetamine. The district court found this proffer insufficient as a matter of
law and precluded Gudino from asserting this duress defense at trial.
We review the district court’s decision precluding Gudino’s duress defense
de novo. United States v. Chi Tong Kuok, 671 F.3d 931, 947 (9th Cir. 2012). To
be sufficient, a pretrial proffer of duress must offer evidence that, if credited,
establishes that Gudino (1) “was under an immediate threat of death or serious
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bodily injury,” (2) “had a well grounded fear that the threat would be carried out,”
and (3) “had no reasonable opportunity to escape.” Id.
We agree with the district court that Gudino’s proffer did not establish the
first element of immediacy. Such a threat “must be ‘present, immediate, or
impending,’ such that the defendant’s persecutors ‘figuratively held a gun to his
head’ (or to his family’s heads) compelling the defendant to commit the illegal
action.” United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008)
(quoting United States v. Contento-Pachon, 723 F.2d 691, 694 (9th Cir. 1984);
United States v. Shryock, 342 F.3d 948, 988 (9th Cir. 2003)). The facts in
Gudino’s proffer did not meet this threshold. Contrary to Gudino’s assertion, this
case is unlike Contento-Pachon or Chi Tong Kuok. In both those cases, the
threatening party demonstrated intimate knowledge of the defendants’ family
members’ whereabouts, as well as a capacity to harm the family members.
Gudino’s proffer alleged no facts suggesting that the unnamed visitor knew where
Gudino’s remaining brother lived, or anything else about Gudino’s family, other
than the fact that his other brother was no longer alive.
Further, the threat Gudino proffered was neither “specific” nor “direct.” See
Chi Tong Kuok, 671 F.3d at 948–49. To the contrary, the threat against Gudino’s
remaining brother was vague. We have held that similar threats to kill a family
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member—even when the defendant legitimately feared the threat—without more,
were insufficient to establish the immediacy element of duress. See, e.g., Vasquez-
Landaver, 527 F.3d at 803–04; United States v. Houston, 648 F.3d 806, 816 (9th
Cir. 2011); United States v. Becerra, 992 F.2d 960, 964 (9th Cir. 1993).
Because we hold that Gudino’s proffer did not demonstrate an immediate
threat, we need not address the parties’ arguments regarding the other two
elements.
AFFIRMED.
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