                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 07 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10556

              Plaintiff-Appellee,                D.C. No.
                                                 5:14-cr-00303-LHK-1
 v.

SERGIO RAMIREZ GUDINO,                           MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Lucy H. Koh, District Judge, Presiding

                    Argued and Submitted November 16, 2016
                            San Francisco, California

Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.

      Sergio Ramirez Gudino appeals his conviction of possession with intent to

distribute methamphetamine on the grounds that the district court erroneously

precluded him from asserting a duress defense at trial. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      A year after being charged with one count of possession with intent to

distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A)(viii), Gudino told the district court that he intended to present a

duress defense at trial. The government sought to preclude this defense in a

pretrial motion in limine. Gudino submitted an offer of proof summarizing his

duress claim. In short, Gudino asserted that a man whom Gudino did not know

visited Gudino’s residence and instructed Gudino to sell methamphetamine on

behalf of a narcotics trafficker in Mexico. After one of Gudino’s two brothers was

killed in Lázaro Cárdenas, Michoacán, the same unknown man returned to

Gudino’s residence twice, again instructing Gudino to sell methamphetamine. The

man made threats suggesting that Gudino’s remaining brother—who also lived in

Michoacán—would be killed if Gudino did not sell the methamphetamine.

Allegedly fearing for his remaining brother’s safety, Gudino attempted to sell the

methamphetamine. The district court found this proffer insufficient as a matter of

law and precluded Gudino from asserting this duress defense at trial.

      We review the district court’s decision precluding Gudino’s duress defense

de novo. United States v. Chi Tong Kuok, 671 F.3d 931, 947 (9th Cir. 2012). To

be sufficient, a pretrial proffer of duress must offer evidence that, if credited,

establishes that Gudino (1) “was under an immediate threat of death or serious


                                            2
bodily injury,” (2) “had a well grounded fear that the threat would be carried out,”

and (3) “had no reasonable opportunity to escape.” Id.

      We agree with the district court that Gudino’s proffer did not establish the

first element of immediacy. Such a threat “must be ‘present, immediate, or

impending,’ such that the defendant’s persecutors ‘figuratively held a gun to his

head’ (or to his family’s heads) compelling the defendant to commit the illegal

action.” United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008)

(quoting United States v. Contento-Pachon, 723 F.2d 691, 694 (9th Cir. 1984);

United States v. Shryock, 342 F.3d 948, 988 (9th Cir. 2003)). The facts in

Gudino’s proffer did not meet this threshold. Contrary to Gudino’s assertion, this

case is unlike Contento-Pachon or Chi Tong Kuok. In both those cases, the

threatening party demonstrated intimate knowledge of the defendants’ family

members’ whereabouts, as well as a capacity to harm the family members.

Gudino’s proffer alleged no facts suggesting that the unnamed visitor knew where

Gudino’s remaining brother lived, or anything else about Gudino’s family, other

than the fact that his other brother was no longer alive.

      Further, the threat Gudino proffered was neither “specific” nor “direct.” See

Chi Tong Kuok, 671 F.3d at 948–49. To the contrary, the threat against Gudino’s

remaining brother was vague. We have held that similar threats to kill a family


                                           3
member—even when the defendant legitimately feared the threat—without more,

were insufficient to establish the immediacy element of duress. See, e.g., Vasquez-

Landaver, 527 F.3d at 803–04; United States v. Houston, 648 F.3d 806, 816 (9th

Cir. 2011); United States v. Becerra, 992 F.2d 960, 964 (9th Cir. 1993).

      Because we hold that Gudino’s proffer did not demonstrate an immediate

threat, we need not address the parties’ arguments regarding the other two

elements.

      AFFIRMED.




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