                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 17 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10041

              Plaintiff - Appellee,              D.C. No. 4:12-cr-00293-WBS-1

 v.
                                                 MEMORANDUM*
JOSE ANTONIO GUTIERREZ, AKA
Jose Fogal, AKA Jose Fogel, AKA Jose
Antonio Guiterrez, AKA Jose Guiterrez-
Fogal,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Northern District of California
                William B. Shubb, Senior District Judge, Presiding

                           Submitted August 13, 2015**
                             San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: KOZINSKI and TALLMAN, Circuit Judges, and ROSENTHAL,***
District Judge.

      Jose Antonio Gutierrez appeals his felony conviction for assaulting a federal

officer in violation of 18 U.S.C. § 111(a), arguing that (1) the initial and supplemental

jury instructions constructively amended the indictment, and (2) there was insufficient

evidence to support the conviction. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      Because Gutierrez failed to object below, we review the district court’s

instructions for plain error. United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir.

2006). The district court properly charged the jury with Ninth Circuit Model Criminal

Jury Instruction § 8.3, see United States v. Acosta-Sierra, 690 F.3d 1111, 1118 n.3

(9th Cir. 2012), and the supplemental instruction correctly defined conduct that would

qualify as forcible assault, cf. United States v. Sommerstedt, 752 F.2d 1494, 1496–97

(9th Cir. 1985) (“[A] defendant may be convicted of violating section 111 if he or she

uses any force whatsoever . . . .”). The statute uses physical contact as a means of

distinguishing between a misdemeanor and felony assault of a federal officer. 18

U.S.C. § 111(a); United States v. Chapman, 528 F.3d 1215, 1218–19 (9th Cir. 2008).

In addition to an instruction on the definition of forcible assault—which subsumes

        ***
            The Honorable Lee H. Rosenthal, United States District Judge for the
Southern District of Texas, sitting by designation.

                                           2
descriptions of assault that may constitute a misdemeanor offense—the district court

also instructed the jury that it could only convict if the Government proved that “the

Defendant made physical contact with Deputy U.S. Marshal Shakeri.” The district

court therefore did not constructively amend the indictment.

      Review of the trial testimony and video images shows that, when “view[ing]

the evidence in the light most favorable to the prosecution,” a “rational trier of fact

could have found [Gutierrez] guilty of each element of the crime beyond a reasonable

doubt.” United States v. Heller, 551 F.3d 1108, 1113 (9th Cir. 2009).

      AFFIRMED.




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