United States v. Antonio Gutierrez ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30107
Plaintiff-Appellee,
D.C. No.
v. 1:18-cr-00050-SPW-1
ANTONIO FRANCISCO ORDER CERTIFYING
GUTIERREZ, QUESTION TO THE
Defendant-Appellant. SUPREME COURT OF
IDAHO
Filed November 23, 2020
Before: Jay S. Bybee and Daniel P. Collins, Circuit
Judges, and Richard G. Stearns,* District Judge.
Order
*
The Honorable Richard G. Stearns, United States District Judge for
the District of Massachusetts, sitting by designation.
2 UNITED STATES V. GUTIERREZ
SUMMARY**
Criminal Law
The panel certified to the Idaho Supreme Court the
following question:
Whether an Idaho state court order reducing
the defendant’s judgment of conviction for
felony burglary to a judgment of conviction
for misdemeanor petit theft under the
authority of Idaho Code § 19-2604(2) changes
the operative conviction for the purposes of
Idaho Code § 18-310, which prohibits the
restoration of firearm rights to those citizens
convicted of specific felony offenses. See
Idaho Code § 18-310(2).
COUNSEL
Kelly J. Varnes, Hendrickson Law Firm P.C., Billings,
Montana, for Defendant-Appellant.
Colin M. Rubich, Assistant United States Attorney; Kurt G.
Alme, United States Attorney; United States Attorney’s
Office, Billings, Montana; for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GUTIERREZ 3
ORDER
At issue in this appeal is whether Defendant-Appellant
Antonio Gutierrez is prohibited from possessing any firearms
under 18 U.S.C. § 922(g) on the basis of his prior Idaho state
conviction. This question hinges on the operation of two
provisions of Idaho state law: Idaho Code §§ 18-310 and 19-
2604. We must determine whether an Idaho state court order
reducing Gutierrez’s judgment of conviction for felony
burglary to a judgment of conviction for misdemeanor petit
theft under the authority of § 19-2604(2) changes the
operative conviction for the purposes of § 18-310, which
prohibits the restoration of firearm rights to those citizens
convicted of specific felony offenses. See Idaho Code § 18-
310(2). This question of state law is determinative of the
instant case, and we find no controlling precedent in the
decisions of the Idaho Supreme Court. Idaho App. R.
12.3(a)(1). Moreover, we find that an immediate
determination of the Idaho law in regard to the certified
question would materially advance the orderly resolution of
this litigation. Idaho App. R. 12.3(a)(2). Thus, in our
discretion, we respectfully certify this question of law to the
Idaho Supreme Court pursuant to Rule 12.3 of the Idaho
Appellate Rules. Lehman Bros. v. Schein, 416 U.S. 386, 391
(1974); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.
No. 1, 294 F.3d 1085, 1086 (9th Cir. 2002), certified question
answered, 72 P.3d 151 (Wash. 2003).
“We invoke the certification process only after careful
consideration and do not do so lightly.” Kremen v. Cohen,
325 F.3d 1035, 1037 (9th Cir. 2003). When determining
whether to certify a question to a state’s highest court, we
consider: (1) whether the question presents “important public
policy ramifications” yet unresolved by the state court;
4 UNITED STATES V. GUTIERREZ
(2) whether the issue is new, substantial, and of broad
application; (3) the state court’s caseload; and (4) “the spirit
of comity and federalism.” Id. at 1037–38.
Whether the reduction of a citizen’s judgment of
conviction for a felony offense listed in Idaho Code § 18-
310(2) to a judgment of conviction for a misdemeanor
offense affects the restoration of the citizen’s firearms rights
has “important public policy ramifications” under both Idaho
and federal law. Therefore, after considering these factors,
and in the spirit of comity and federalism, we certify this
question to the Idaho Supreme Court. We provide the
following information for the consideration of the Idaho
Supreme Court.
I
Antonio Gutierrez was indicted in the United States
District Court for the District of Montana on four federal
charges: (1) conspiracy to commit robbery affecting
commerce (18 U.S.C. § 1951(a)); (2) robbery affecting
commerce (18 U.S.C. § 1951(a)); (3) possession of a firearm
in furtherance of a crime of violence (18 U.S.C.
§ 924(c)(1)(A)); and (4) felon in possession of a firearm
(18 U.S.C. § 922(g)(1)). These charges resulted from a
robbery involving a firearm of Dotty’s Casino in Billings,
Montana on February 5, 2018. Gutierrez had previous
convictions under Idaho state law for burglary.1 Under Idaho
Code § 18-310, “a person convicted of any Idaho felony shall
be restored the full rights of citizenship,” except that for
1
We take judicial notice of the Bannock County District Court’s
docket in the underlying state criminal case. Docket, Idaho v. Gutierrez,
No. CR-2000-192.
UNITED STATES V. GUTIERREZ 5
persons convicted of certain enumerated offenses, “the right
to ship, transport, possess or receive a firearm shall not be
restored.” Idaho Code § 18-310(2). Burglary is one of the
enumerated offenses. Id. § 18-310(2)(e). On October 27,
2003, acting pursuant to Idaho Code § 19-2604(2),2 an Idaho
district court ordered Gutierrez’s burglary convictions under
Idaho Code § 18-1401 “REDUCED to Misdemeanor Petit
Theft” in violation of Idaho Code § 18-2403(1). The Idaho
district court order stated that Gutierrez was “not to be
considered a convicted felon because he has successfully
complied with the terms and conditions of probation and paid
all restitution/reimbursement and fines in full.”
Gutierrez moved to dismiss the federal indictment on
various grounds, including that he is not a felon prohibited
from possessing a firearm under 18 U.S.C. § 922(g)3 because
his judgment of conviction for burglary had been reduced to
2
The Idaho district court order reducing the judgment of conviction
is not explicit as to which provision of Idaho state law the court relied
upon. However, at oral argument the parties agreed that it was most likely
§ 19-2604(2), and we agree with that assessment of the factual
circumstances. Section 19-2604(2) provides that, under certain
conditions, an Idaho court “may amend the judgment of conviction” and
“the amended judgment may be deemed to be a misdemeanor conviction.”
3
Section 922(g) makes it unlawful for numerous categories of persons
“to ship or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any firearm
or ammunition which has been shipped or transported in interstate or
foreign commerce.” Gutierrez was convicted under § 922(g)(1), which
prohibits possession of a firearm by any person “who has been convicted
in any court of[] a crime punishable by imprisonment for a term exceeding
one year.” Section 921(a)(20) defines a “crime punishable by
imprisonment for a term exceeding one year” to exclude “any State
offense classified by the laws of the State as a misdemeanor and
punishable by a term of imprisonment of two years or less.”
6 UNITED STATES V. GUTIERREZ
misdemeanor petit theft. The federal district court denied this
motion, holding that Idaho Code § 18-310(2) excluded
Gutierrez’s underlying felony burglary conviction from the
restoration of firearm rights. United States v. Gutierrez, 2018
WL 3611753, at *2 (D. Mont. July 27, 2018).
Before trial, the Government dismissed the conspiracy
count. After a jury trial, Gutierrez was convicted on the
remaining three counts, including the felon-in-possession
charge under 18 U.S.C. § 922(g).
Gutierrez now appeals his § 922(g) conviction.4 He
asserts that the district court erred in determining that he was
a felon prohibited from possessing any firearms under
§ 922(g). To determine whether a defendant has a qualifying
“conviction” under § 922(g), federal courts must look to state
law. See 18 U.S.C. § 921(a)(20) (qualifying “conviction”
excludes “any State offense classified by the laws of the State
as a misdemeanor and punishable by a term of imprisonment
of two years or less”). If a federal defendant’s firearm rights
have been restored by operation of state law, his state law
conviction is invalidated for the purposes of § 922(g). See
Van der Hule v. Holder, 759 F.3d 1043, 1046 (9th Cir. 2014).
In applying Van der Hule, the federal district court
determined that: (1) Gutierrez’s felony burglary conviction
was the operative judgment of conviction; (2) the Idaho
district court order reducing the felony burglary conviction to
a judgment of conviction for misdemeanor petit theft did not
expunge, pardon, or set aside the felony conviction, or restore
4
Gutierrez also challenges his convictions under 18 U.S.C. §§ 1951and 924(c). However, the challenges to those convictions are entirely
separate from his challenge to his § 922(g) conviction and are not the
subject of our certification.
UNITED STATES V. GUTIERREZ 7
Gutierrez’s firearm rights; and (3) Idaho Code § 18-310(2)
excluded Gutierrez from the restoration of firearm rights
under Idaho law. Gutierrez, 2018 WL 3611753, at *2. Thus,
the federal district court determined that Gutierrez had a
qualifying conviction and his firearm rights had not been
restored under Idaho law, and therefore he was prohibited
from possessing any firearm under 18 U.S.C. § 922(g). Id.On appeal, the following question of Idaho law appears
crucial and determinative as to whether Gutierrez is a felon
prohibited from possessing any firearms under 18 U.S.C.
§ 922(g): When a judgment of felony conviction is
subsequently reduced to a judgment of misdemeanor
conviction under Idaho Code § 19-2604(2), which judgment
is the operative judgment of conviction for the purposes of
Idaho Code § 18-310?
II
The Idaho Supreme Court has not decided this question.
The Court only briefly discussed these questions in Rich v.
State, 159 Idaho 553 (2015). In Rich, an Idaho district court
issued an order stating that, under Idaho Code § 19-2604(2),
Rich’s “Judgment is hereby deemed a misdemeanor
conviction, thereby restoring [Mr. Rich] to his civil rights.”
159 Idaho at 554 (emphasis added). When Rich was denied
a firearm purchase in Pennsylvania on the basis of his Idaho
felony conviction, he sought a declaratory judgment from the
Idaho district court that he could possess a firearm. Id. The
Idaho district court dismissed Rich’s case on two grounds:
(1) Rich lacked standing because he was not under any threat
of arrest or prosecution; and (2) under § 18-310, only the
commission of pardons and parole, not a district court, could
restore Rich’s right to possess a firearm. Id. The Idaho
8 UNITED STATES V. GUTIERREZ
Supreme Court affirmed the judgment on an “uncontested
basis” because petitioner had failed to challenge both grounds
on appeal. Id. at 555. Nevertheless, in a footnote, the Idaho
Supreme Court stated:
At the time Mr. Rich committed the rape,
Idaho Code section 18-310 provided that the
right to ship, transport, possess, or receive a
firearm would not be restored upon
satisfactory completion of imprisonment,
probation, or parole if the person was
convicted of certain enumerated felonies,
including rape, that were committed on or
after July 1, 1991. With respect to persons
convicted of those felonies, the statue
provided, “A person not restored to the civil
right to ship, transport, possess or receive a
firearm may make application to the
commission of pardons and parole to restore
the civil right to ship, transport, possess or
receive a firearm.” There is no contention
that Mr. Rich ever made application to the
Idaho Commission of Pardons and Parole to
have his right to ship, transport, possess, or
receive a firearm restored. These provisions
of Idaho Code section 18-310 were in effect at
the time of the district court order reducing
the charge to a misdemeanor, and they are still
in effect. Pursuant to Idaho Code section 19-
2604(1), a court has the authority, in certain
circumstances, to set aside the defendant’s
guilty plea and dismiss the case, which “shall
have the effect of restoring the defendant to
his civil rights.” The district court in Mr.
UNITED STATES V. GUTIERREZ 9
Rich’s criminal case did not set aside Mr.
Rich’s guilty plea and dismiss the case under
section 19-2604(1). It deemed his judgment
to be a misdemeanor conviction under section
19-2604(2).
Id. at 555 n.3 (citations omitted). Although the Court’s
footnote indicates that both §§ 18-310 and 19-2604 may be
relevant to the restoration of firearm rights, it does not shed
significant light on whether a reduction, under § 19-2604(2),
of a judgment of conviction for a particular felony offense to
a judgment of conviction for a different misdemeanor offense
alters the operative judgment of conviction for the purposes
of § 18-310.
III
In light of the foregoing, we respectfully certify the
following question of law to the Idaho Supreme Court:
When a judgment of conviction for a
particular felony offense is subsequently
reduced under Idaho Code § 19-2604(2) to a
judgment of conviction for a different
misdemeanor offense, which judgment is the
operative judgment of conviction for the
purposes of Idaho Code § 18-310?
IV
The Clerk shall forward a certified copy of this
certification order, under official seal, to the Idaho Supreme
Court under Idaho Appellate Rule 12.3. Pursuant to Idaho
Appellate Rule 12.3(b), the parties are hereby notified that
10 UNITED STATES V. GUTIERREZ
they may file a statement or brief in support of, or in
opposition to, the certification with the Idaho Supreme Court.
Such statement or brief must be filed within seven (7) days
from the date of filing of this Order of Certification.
Submission of this appeal for decision is vacated and
deferred pending the Idaho Supreme Court’s final response to
this certification order. The Clerk is directed to
administratively close this docket, pending further order. The
parties shall notify the Clerk of this court within fourteen
days of the Idaho Supreme Court’s acceptance or rejection of
certification, and again, if certification is accepted, within
fourteen days of the Idaho Supreme Court’s issuance of a
decision.
QUESTION CERTIFIED; PROCEEDINGS
STAYED.