     Case: 17-10170       Document: 00514638844         Page: 1     Date Filed: 09/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                     No. 17-10170                          September 12, 2018
                                   Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ANTHONY TODD GUTIERREZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:16-CR-35-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Anthony Todd Gutierrez was convicted on one
charge of felon in possession of a firearm and ammunition, in violation of 18
U.S.C. §922(g)(1), and was sentenced, inter alia, to 120-months’ imprisonment.
Gutierrez contends: the district court erred by admitting evidence concerning
his fight with his parents and injury to his mother because these acts were




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                  No. 17-10170

neither intrinsic to the offense, nor admissible under Federal Rule of Evidence
404(b)(2); and the admission of this evidence was not harmless.
      In March 2016, Gutierrez was involved in the altercation with his
parents and resulting injuries to his mother. After the altercation, his parents
called the police, and Gutierrez fled. Gutierrez’ parents consented to a search
of the house in which he had been living, which they owned, and the police
discovered a homemade gun suppressor, two long-gun cases, and three small-
gun cases.
      Three hours later, Gutierrez’ mother again called police after he
returned to the house. Gutierrez fled from the police, initiating a vehicle chase.
One witness testified Gutierrez admitted to shooting at authorities during this
police chase. The next day, Gutierrez kidnapped his wife, and took her to the
house in which he had been staying since the altercation. The house was
owned by David Martinez.
      Gutierrez’ wife testified that, before they moved to Texas from
Pennsylvania, Gutierrez bartered a truck for a rifle and a handgun. The rifle
was stored under their bed at Gutierrez’ parents’ house. She had also seen
Gutierrez with the rifle four days prior to the incident, and, after being
kidnapped, she saw Gutierrez take the rifle in question out of a closet and show
Martinez, stating “look what I got”.
      Five days after the initial incident, officers arrived at Martinez’ home,
and he consented to its being searched. Martinez confirmed the existence of
an assault rifle, telling authorities he had seen Gutierrez search online for how
to make a gun silencer with the rifle sitting next to him.
      The police discovered the Smith & Wesson M&P-15 self-loading rifle
loaded with five rounds of ammunition and with a laser sight and a homemade,
PVC-constructed suppressor attached in the hall closet where Gutierrez’ wife



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                                  No. 17-10170

had previously seen the rifle. Officers also discovered in the bedroom in which
Gutierrez was staying: a canvas holster with a handgun magazine, and a
canvas bucket containing a 30-round detachable box magazine fitting the rifle
in issue. In Gutierrez’ wife’s vehicle, officers discovered a 20-round detachable
box magazine for that rifle. Gutierrez was indicted under 18 U.S.C. § 922(g)(1)
for being a felon in knowing possession of a firearm and ammunition in, and
affecting, interstate commerce.
      Evidence of defendant’s other bad acts is inadmissible under Rule 404(b)
to prove character or to show defendant acted in conformity with such
character, but may be admissible for other purposes. Fed. R. Evid. 404(b);
United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007). Before determining
whether evidence of other acts was erroneously admitted under Rule 404, the
court must classify the evidence as intrinsic or extrinsic, as the former is
admissible without regard to Rule 404. United States v. Rice, 607 F.3d 133,
141 (5th Cir. 2010). The district court’s ruling other-act evidence is intrinsic
to the charged offense is reviewed for abuse of discretion. United States v.
Turner, 674 F.3d 420, 431 (5th Cir. 2012).
      The challenged evidence (Gutierrez’ fighting with his parents and
injuring his mother) was intrinsic because, inter alia, it: gave context to the
events leading to these proceedings; and concerned the incident that led to
Gutierrez’ being discovered in possession of a firearm, and indicted. See Rice,
607 F.3d at 141; Turner, 674 F.3d at 431. Gutierrez has not shown the court
abused its discretion in so ruling.
      AFFIRMED.




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