                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2008

USA v. Gutierrez-Gainza
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3002




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                   Case No: 07-3002

                           UNITED STATES OF AMERICA

                                             v.

                           NELKIS GUTIERREZ-GAINZA,

                                                       Appellant




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              District Court No. 05-cr-432
                     District Judge: The Honorable Jan E. DuBois


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     July 3, 2008

               Before: RENDELL, SMITH, and FISHER, Circuit Judges

                                  (Filed: July 9, 2008 )


                                       OPINION


SMITH, Circuit Judge.

      On June 26, 2007, the United States District Court for the Eastern District of

Pennsylvania sentenced Nelkis Gutierrez-Gainza to a term of imprisonment of twenty

years pursuant to 21 U.S.C. § 841(b)(1)(A)(ii), which provides that any person convicted
of distributing five kilograms or more of cocaine “after a prior conviction for a felony

drug offense has become final . . . shall be sentenced to a term of imprisonment which

may not be less than 20 years . . . .” Gutierrez-Gainza appeals his sentence, arguing that

the Government did not prove by a preponderance of the evidence that he had a prior

felony drug conviction. The District Court had subject matter jurisdiction over the case

pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742. We will affirm the District Court’s judgment of sentence.

       A grand jury returned a superseding indictment on November 22, 2005, charging

Gutierrez-Gainza and a co-defendant with conspiracy to distribute and to possess with

intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846

(Count One), and distributing and aiding and abetting the distribution of five kilograms or

more of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two).

On October 13, 2006, the Government filed an Information pursuant to 21 U.S.C. § 851

alleging that a Minnesota state court had convicted Gutierrez-Gainza of aiding and

abetting possession of a controlled substance, a fifth-degree felony offense punishable by

imprisonment for up to five years. The Pre-Sentence Report (“PSR”) indicated that

Gutierrez-Gainza had pleaded guilty to this offense on October 14, 2003 and received a

suspended sentence of 21 months of imprisonment. A jury found Gutierrez-Gainza guilty

of Counts One and Two on October 30, 2006. At the sentencing hearing, Gutierrez-

Gainza’s counsel argued that the Government had failed to meet its burden of proof to



                                             2
establish that the Minnesota conviction had not been overturned and that the man

convicted in Minnesota was the same person. The District Court rejected these

arguments. Relying on the Minnesota conviction, the District Court sentenced Gutierrez-

Gainza on July 26, 2007 to the mandatory minimum penalty of twenty years of

imprisonment prescribed by § 841(b)(1)(A)(ii) for defendants with a prior felony drug

conviction, along with a ten-year period of supervised release and monetary penalties.

Gutierrez-Gainza filed a timely notice of appeal.

       The Government bears the burden of proving the fact of a prior conviction by a

preponderance of the evidence. United States v. Coleman, 451 F.3d 154, 161 (3d Cir.

2006). The Federal Rules of Evidence do not apply to sentencing hearings. See F ED. R.

E VID. 1101(d)(3). Instead, “the court may consider relevant information without regard

to its admissibility under the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its probable accuracy.”

U.S.S.G. § 6A1.3(a). We review a District Court’s factual findings related to sentencing

for clear error. United States v. Grier, 475 F.3d 556, 568–70 (3d Cir. 2007) (en banc).

       First, Gutierrez-Gainza argues that the Government failed to prove the fact of his

Minnesota conviction by a preponderance of the evidence because it did not introduce a

certified copy of the conviction. Instead, the Government introduced (1) a transcript of

the Minnesota plea and sentencing hearing; (2) a letter from the Probation Office of the

United States District Court for the District of Minnesota regarding the prior conviction;



                                               3
(3) search results for Gutierrez-Gainza’s name from the Statewide Supervision System of

the Minnesota Department of Corrections that mention the conviction; (4) a copy of his

record in the FBI’s National Crime Information Center (“NCIC”) database that mentions

the Minnesota conviction; (5) the Minnesota criminal complaint; and (6) the Minnesota

case history summary. Gutierrez-Gainza asserts that these documents were insufficient

because they would not necessarily indicate whether his conviction had been overturned.

In contrast, he asserts, the Clerk’s Office in Minnesota would review his file and confirm

that the conviction had not been overturned before providing a certified conviction.

Gutierrez-Gainza does not claim, however, that his conviction has been overturned but

rather that the Government did not satisfy its burden to show that it has not been

overturned.

       In this case, in which the defendant has not even made a bare assertion that his

conviction was actually overturned, the documents that the Government introduced are

sufficient to establish a prior conviction for purposes of § 841(b)(1)(A)(ii). In United

States v. Watkins, we stated that a court may impose a sentencing enhancement under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), without requiring the

Government to produce a certified copy of the defendant’s prior convictions. 54 F.3d

163, 166–68 (3d Cir. 1995). We specifically noted that a sentencing court may rely on

facts in a PSR when the defendant does not challenge their accuracy. Id. at 166–67. A

similar approach is warranted for mandatory minimum sentences under



                                             4
§ 841(b)(1)(A)(ii). When a defendant offers no assertion that his conviction was

overturned, a sentencing court does not commit clear error by concluding that the

Government is not required to produce a certified copy of the conviction in order to show

by a preponderance of the evidence that a valid conviction exists.

       Second, Gutierrez-Gainza argues that the Government did not prove that he is the

same person who was convicted in Minnesota. Again, his argument is based solely on the

Government’s burden of proof; he does not assert that the person convicted in Minnesota

actually was a different person. He argues that, in order for the Government to meet its

burden of proof, “[e]ither an arresting officer should identify the Appellant or an expert

should come in to court and compare fingerprints to verify” that his fingerprints match the

ones on file for the Minnesota conviction. Br. of Appellant 11. Because we believe that

the District Court has the discretion to determine when such measures are necessary to

verify a defendant’s identity, we decline to create a rule that they are required in every

case as part of the Government’s burden of proof. In the instant case, the District Court

made an undisputed finding that Gutierrez-Gainza’s name and date of birth matched those

of the man convicted in Minnesota, and Gutierrez-Gainza never asserted that the

conviction was not his. Given these facts, we hold that the District Court’s finding that

Gutierrez-Gainza had a prior Minnesota conviction was not clearly erroneous.

       We will affirm the District Court’s judgment.




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