                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             May 15, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-2109
                                                    (D.C. No. 1:15-CR-03955-JB-1)
 DARRYL J. GUTIERREZ,                                          (D.N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges.**
                  _________________________________

      Darryl J. Gutierrez, a federal inmate proceeding pro se1, appeals his conviction

and sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
      1
       We construe Mr. Gutierrez’s pleadings liberally but we will not act as his
advocate. United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
                                   BACKGROUND

      In 2017, a jury convicted Mr. Gutierrez of one count of obstructing the

administration of tax laws, see 26 U.S.C. § 7212(a), and ten counts of filing a false

tax return, see 26 U.S.C. § 7206(1). The district court judge sentenced Mr. Gutierrez

to 33 months’ imprisonment and one year of supervised release. Mr. Gutierrez timely

filed a notice of appeal and waived his right to counsel.

                                    DISCUSSION

      Mr. Gutierrez lodges several arguments on appeal. Most are frivolous, so we

do not address them in detail.2 See Lonsdale v. United States, 919 F.2d 1440, 1448

(10th Cir. 1990) (recognizing that courts are “not required to expend judicial

resources” entertaining frivolous arguments). But Mr. Gutierrez raises four

nonfrivolous arguments.

      First, Mr. Gutierrez argues that the district court violated his Sixth Amendment

right to counsel. At the beginning of the case, the district court appointed counsel to

represent Mr. Gutierrez.3 Mr. Gutierrez remained represented by counsel until after


      2
         Mr. Gutierrez lodges several typical tax-protestor claims. For example, Mr.
Gutierrez argues that the statute of his conviction—26 U.S.C. § 7212(a)—is
unenforceable because it lacked proper publication in the Federal Register. He also
argues that the United States and the United States of America are not the same entity
and that New Mexico Nationals cannot serve as federal jurors because they are not
U.S. citizens. We need not “refute these arguments with somber reasoning and
copious citation to precedent; to do so might suggest that these arguments have some
colorable merit.” United States v. Vance, 215 F.3d 1338, at *2 n.1 (10th Cir. 2000)
(unpublished) (quoting Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984)).
      3
        The district court first appointed the Office of the Federal Public Defender to
represent Mr. Gutierrez. The court removed the Federal Public Defenders from the
                                           2
Mr. Gutierrez’s sentencing hearing. After sentencing but before entry of judgment,

counsel moved to withdraw. As grounds, counsel stated that he had developed a

material conflict with Mr. Gutierrez which prevented him from continuing his

representation. The district court granted the motion.4 Mr. Gutierrez did not seek new

counsel and elected to proceed pro se on appeal.

      Sometime after the court granted counsel’s motion to withdraw, it entered two

memorandum orders formalizing earlier decisions made before the sentencing

hearing.5 The court then entered the judgment and sentence. Mr. Gutierrez claims that

the court’s release of defense counsel constitutes a constitutional violation and

requires reversal. Op. Br. at 12-13. We disagree.

      “The Sixth Amendment secures to a defendant who faces incarceration the right

to counsel at all ‘critical stages’ of the criminal process.” Iowa v. Tovar, 541 U.S. 77,

87 (2004). In this case, we need not decide whether Mr. Gutierrez had a constitutional


case after it found that Mr. Gutierrez could afford counsel. Later, the court appointed
a different CJA attorney to represent Mr. Gutierrez. This attorney represented Mr.
Gutierrez until moving to withdraw after Mr. Gutierrez’s sentencing.
      4
        The limited amount of evidence available in the record seems to indicate that
Mr. Gutierrez agreed with the court’s decision to permit his counsel to withdraw. Mr.
Gutierrez never sought new counsel before judgment was entered, and Mr. Gutierrez
waived his right to counsel on appeal.
      5
         The first order dealt with a pre-trial motion filed by Mr. Gutierrez which
claimed that the court held no power over him. The court orally denied the motion
before trial but told Mr. Gutierrez that it would write an opinion on the matter. The
second order concerned jury instructions, admissible evidence, and Mr. Gutierrez’s
claim that the United States must provide him grand jury transcripts before trial. As
before, the court had already ruled on these issues but formalized its decisions in the
written order.
                                           3
right to counsel during the time between sentencing and the entry of the final judgment.

Even if we assume that Mr. Gutierrez was entitled to counsel during this period, we

would hold that the absence of counsel was harmless.

      Harmless-error review applies to Sixth Amendment claims such as this. United

States v. Lott, 433 F.3d 718, 723 (10th Cir. 2006). On direct appeal, constitutional

harmless-error review requires us to consider whether the government “has proved

beyond a reasonable doubt that the error complained of did not contribute to the verdict

obtained.” Acosta v. Raemisch, 877 F.3d 918, 933 (10th Cir. 2017) (citing Chapman v.

California, 386 U.S. 18, 24 (1967)). The government has made this showing.

      As the government points out, Mr. Gutierrez had already been convicted and

sentenced when his counsel moved to withdraw. After counsel had withdrawn, the

district court issued two orders and the final judgment. The orders merely repeated

decisions made by the court before and during trial. The final judgment formalized the

oral pronouncement made by the court at sentencing. We have no doubt that these

filings would not have been altered had Mr. Gutierrez continued to be represented by

counsel.

      Second, Mr. Gutierrez claims that the government failed to prove an essential

element of § 7212(a). Specifically, he claims that the government failed to prove that

during the Internal Revenue Service (IRS) investigation, he had used or threatened to

use physical force against any agent or employee of the United States. But the use of

force was not an element of the charged crime.



                                           4
       A jury convicted Mr. Gutierrez of violating 26 U.S.C. § 7212(a). As one

element of that crime, the government must prove that the defendant did “corruptly

or by force or threats of force . . . obstruct or impede[]” the administration of Title 26

of the United States Code. Thus, the government can secure a conviction by proving

that the defendant acted in one of three different ways: (1) by acting corruptly, (2) by

using force, or (3) by threatening force. See United States v. Valenti, 121 F.3d 327,

330-331 (7th Cir. 1997) (detailing how the statute can be violated in multiple ways);

United States v. Bostian, 59 F.3d 474, 477 (4th Cir. 1995) (same).

       In its indictment, the grand jury charged that Mr. Gutierrez had “corruptly

endeavor[ed] to obstruct and impede the due administration of the internal revenue

laws.” R. vol. I at 15. And the court instructed the jury that in order to convict Mr.

Gutierrez under § 7212 it had to find that Mr. Gutierrez acted “corruptly” to “obstruct

or impede the due administration of the internal revenue laws as charged.” R. vol. II

at 258. So contrary to Mr. Gutierrez’s claim, the government was not required to

prove that Mr. Gutierrez used, or threatened to use, force.

       Third, Mr. Gutierrez argues that IRS agents violated his rights under Miranda

v. Arizona, 384 U.S. 436 (1966). In support, Mr. Gutierrez alleges that IRS agents

failed to read him his Miranda rights when he was “arrested, handcuffed, transported,

booked, questioned, arraigned and released.” Op. Br. at 24. But Mr. Gutierrez did not

raise this argument below, meaning we review the issue for plain error.

       Under plain-error review, Mr. Gutierrez must show the following four things:

“(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)

                                             5
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Mendoza, 698 F.3d 1303, 1309 (10th Cir. 2012). We need not

address the first two prongs of the plain-error test because Mr. Gutierrez has failed to

demonstrate that any potential error affected his substantial rights. See United States

v. Gallegos, 784 F.3d 1356, 1362-63 (10th Cir. 2015) (declining to address the first

and second prong of the plain-error test when defendant failed to satisfy the third and

fourth prongs).

      To demonstrate that an error affects his substantial rights, Mr. Gutierrez must

show that “but for the error claimed, the result of the proceeding would have been

different.” Mendoza, 698 F.3d at 1310. Mr. Gutierrez has not made this showing.

Nowhere in Mr. Gutierrez’s brief does he point us to any statements obtained in

violation of Miranda that were used to secure his conviction. Thus, even if we

assumed a Miranda violation, Mr. Gutierrez has provided us with no record evidence

demonstrating that this claimed error affected his substantial rights. Accordingly, Mr.

Gutierrez has failed to satisfy the plain-error standard of review.

      Fourth, Mr. Gutierrez claims that the district court erred by imposing a

supervised release condition that requires him to file an income tax return. According

to Mr. Gutierrez, such a requirement violates his right against self-incrimination

protected by the Fifth Amendment. Once again, Mr. Gutierrez did not advance this

argument below and, accordingly, our review is for plain error.

      Here, Mr. Gutierrez fails at the first step of the plain-error analysis. He cannot

show error let alone error that is plain. This court has already rejected the argument

                                            6
that requiring a citizen to file a tax return violates the Fifth Amendment. United

States v. Moore, 692 F.2d 95, 97 (10th Cir. 1979) (rejecting the claim that the Fifth

Amendment provides a defense against failing to file a tax return) (citing United

States v. Sullivan, 274 U.S. 259 (1927)). Accordingly, we conclude that the district

court did not err when it imposed a condition of supervised release requiring Mr.

Gutierrez to submit federal income tax returns.

                                   CONCLUSION

      Having thoroughly reviewed Mr. Gutierrez’s briefs, the government’s brief,

and the record in this case, we reject all of Mr. Gutierrez’s arguments on appeal.

Accordingly, we affirm Mr. Gutierrez’s conviction and sentence.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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