FILED
NOT FOR PUBLICATION
JAN 18 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30107
Plaintiff-Appellee, D.C. No.
1:18-cr-00050-SPW-1
v.
ANTONIO FRANCISCO GUTIERREZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted September 2, 2020
Submission Vacated November 23, 2020
Resubmitted August 3, 2021
Seattle, Washington
Before: BYBEE and COLLINS, Circuit Judges, and STEARNS,** District Judge.
Appellee United States charged Appellant Antonio Gutierrez with
conspiracy to commit robbery affecting commerce (18 U.S.C. § 1951), robbery
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard G. Stearns, United States District Judge for
the District of Massachusetts, sitting by designation.
affecting commerce (18 U.S.C. § 1951), possession of a firearm in furtherance of a
crime of violence (18 U.S.C. § 924(c)), and being a felon in possession of a firearm
(18 U.S.C. § 922(g)). Gutierrez moved to dismiss his indictment, asserting that he
was not a “prohibited person” under 18 U.S.C. § 922(g). The district court denied
the motion. The Government dismissed the conspiracy count, and the jury returned
a guilty verdict on the remaining counts. Gutierrez now challenges (1) the
sufficiency of the evidence supporting his convictions and (2) the district court’s
denial of his motion to dismiss the felon-in-possession charge. Because the parties
are familiar with the facts, we will not recite them here.
We review the sufficiency of the evidence de novo. United States v.
Loveland, 825 F.3d 555, 558 (9th Cir. 2016). We review a denial of a motion to
dismiss the indictment de novo and the underlying factual determinations for clear
error. United States v. Ziskin, 360 F.3d 934, 938 (9th Cir. 2003). We affirm.
1. Gutierrez relies on credibility disputes and conflicting evidence in the
record, rather than a lack of evidence presented at trial, to challenge the sufficiency
of the evidence supporting his convictions. However, Gutierrez’s challenge
ignores additional facts the Government presented at trial. A rational trier of fact
could have resolved the conflicting testimony and credibility issues in favor of the
prosecution. See United States v. Boykin, 785 F.3d 1352, 1359 (9th Cir. 2015)
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(“The trier of fact has the responsibility ‘to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.’” (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))). Taking the
record in the light most favorable to the prosecution, these facts are more than
sufficient for a rational trier of fact to find beyond a reasonable doubt that
Gutierrez committed the robbery. See Loveland, 825 F.3d at 558–59 (“Evidence is
sufficient if, when viewed in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” (internal quotations omitted) (quoting United States v. Webster,
623 F.3d 901, 907 (9th Cir. 2010)) (emphasis in original)).
2. Gutierrez also challenges the sufficiency of the evidence supporting
the “affecting commerce” requirement for his convictions. Ninth Circuit case law
is clear that this is a de minimis burden, which can be met by showing that the
affected business regularly engages in interstate commerce. United States v.
Rodriguez, 360 F.3d 949, 955 (9th Cir. 2004). There is no dispute that the affected
business engaged in interstate commerce. See United States v. Lynch, 437 F.3d
902, 909 (9th Cir. 2006) (“The interstate nexus requirement is satisfied ‘by proof
of a probable or potential impact’ on interstate commerce. The government need
not show that a defendant’s acts actually affected interstate commerce.” (internal
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citation omitted) (quoting United States v. Huynh, 60 F.3d 1386, 1389 (9th Cir.
1995))). The Government presented sufficient supporting evidence at trial. See
United States v. Rodriguez, 360 F.3d 949, 955–56 (9th Cir. 2004). Therefore, the
“affecting commerce” requirement of the Hobbs Act is satisfied.
3. Finally, Gutierrez claims he was not a “prohibited person” under 18
U.S.C. § 922(g). Under Federal law, “[i]t shall be unlawful for any person . . . who
has been convicted in any court of, a crime punishable by imprisonment for a term
exceeding one year . . . to . . . receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1).
A “crime punishable by imprisonment for a term exceeding one year” excludes
state misdemeanor offenses punishable by two years imprisonment or less. 18
U.S.C. § 921(a)(20). If a conviction “has been expunged, or set aside” or the
defendant “has had civil rights restored,” it is not a qualifying conviction “unless
such . . . expungement, or restoration of civil rights expressly provides that the
person may not ship, transport, possess, or receive firearms.” Id. (emphasis
added). To determine “whether a restoration of civil rights expressly prohibits
firearm possession, [we] must look to the whole of state law at the time of the
restoration.” United States v. Cardwell, 967 F.2d 1349, 1351 (9th Cir. 1992).
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The parties agree that the test laid out in Van Der Hule v. Holder, 759 F.3d
1043, 1046 (9th Cir. 2014), controls the analysis. The district court correctly
applied this test. Although Gutierrez’s felony burglary conviction was reduced to
misdemeanor petit theft under Idaho Code § 19-2604(2) (2003), that statute did not
authorize the reduction to operate as an unqualified restoration of Gutierrez’s civil
rights. The Idaho Supreme Court, in response to our certification, noted that the
text of subsection (2) has no language addressing the restoration of a defendant’s
civil rights. § 19-2604(2). Thus, the court “affirmatively h[e]ld that when a
conviction has been amended under subsection (2), instead of vacated under
subsection (1), the defendant convicted of one of the listed felonies in Idaho Code
18-310(2) must take an additional step to restore his right to ship, transport,
possess or receive a firearm—the defendant must comply with section 18-310(3)
and apply to the commission of pardons and parole.” In re Ord. Certifying
Question to Sup. Ct. of Idaho, 492 P.3d 1094, 1099 (Idaho 2021). Compare § 19-
2604(2) (“[A]mended judgment may be deemed to be a misdemeanor conviction.”)
with § 19-2604(1) (dismissal “shall have the effect of restoring the defendant to his
civil rights”). Put simply, the Idaho Supreme Court’s holding is that:
[T]he firearm restrictions that were initially imposed by operation of
Idaho Code section 18-310 are not automatically restored unless a
conviction is vacated under Idaho Code section 19-2604(1). In all
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other circumstances, the suspension of firearm rights, once in place,
can be restored only by following the explicit mandate of section
18-310. For the offenses listed in section 18-310(2), one must make
an application to the commission of pardons and parole not less than
five years after the date of final discharge. I.C. § 18-310(3).
492 P.3d 1094, 1101. Gutierrez has not made such an application or received a
restoration of his rights under Idaho law.
Therefore, Gutierrez’s felony burglary conviction required the district court
to apply Van Der Hule steps 2 and 3. At step 3, Idaho Code § 18-310(2) governs
the result, as it explicitly excludes burglary convictions from having firearm rights
restored automatically. § 18-310(2)(e). Gutierrez is a “prohibited person” as a
matter of law, and the district court properly denied dismissal of the felon-in-
possession charge.
AFFIRMED.
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