U.S. v. Gomez, No. 98-1889

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before McMILLIAN and HANSEN, Circuit Judges, and KYLE; KYLE
• Citation: 165 F.3d 650
• Parties: UNITED STATES of America, Appellee, v. Juan GOMEZ, Appellant.
• Decision Date: 20 January 1999
• Docket Number: No. 98-1889

Page 650

165 F.3d 650 UNITED STATES of America, Appellee,
v.
Juan GOMEZ, Appellant. No. 98-1889. United States Court of Appeals,
Eighth Circuit. Submitted Oct. 23, 1998.
Decided Jan. 20, 1999.

Page 652

Al J. Arendt, Pierre, South Dakota, argued, for Appellant.

Mara M. Kohn, Assistant U.S. Attorney, Pierre, South Dakota, argued (Karen E. Schreier, on the brief), for Appellee.

Before McMILLIAN and HANSEN, Circuit Judges, and KYLE, District Judge. ¹

KYLE, District Judge.

Juan Gomez ("Gomez") was convicted by a jury of first-degree burglary, in violation of 18 U.S.C. § 1152 and S.D. Codified Laws § 22-32-1. He appeals both his conviction and the 46-month sentence imposed by the district court. ² For the reasons set forth below, we affirm.

I

During the evening and early morning hours of August 9-10, 1997, Carol Thompson Muniz ("Muniz"), Kerrie Flute ("Flute"), Fernando Aranda ("Aranda"), and Danielle LaRoche ("LaRoche") spent time together drinking alcohol at a bar in Reliance, South Dakota, and later at Muniz's house in Lower Brule, South Dakota. After the bar closed at midnight, the group went to a dance in Lower Brule, where they stayed until 2:00 or 3:00 in the morning. When the dance ended, they resumed drinking at Muniz's house.

While the group was sitting in Muniz's kitchen, they heard someone banging on the front door of her house. Muniz and Aranda yelled at the person to go to the back door. Gomez, who had been banging on the front door, then went to the back door, which was locked, and kicked and pounded on it until it flew open. He then entered the house carrying a beer bottle, which he broke on the door frame, scattering glass around the kitchen. As he broke the bottle, a piece of glass hit LaRoche on the head, after which LaRoche ran out of the house.

Gomez then saw Flute attempting to flee the house and confronted her with the broken beer bottle, extending the jagged edge toward her as he approached her. When Gomez then turned toward Aranda and lunged at him, Flute fled the house. Inside the house, Gomez yelled at Muniz, "Bitch, you're dead," or words to that effect. Gomez and Aranda began to fight and Muniz ran into her bedroom; when she came out moments later, nobody was left inside her house. Muniz then went to a neighbor's house and called the police.

Officer Tim Felicia of the Lower Brule Police Department and a tribal deputy arrived at Muniz's house a few minutes later, at approximately 3:30 a.m. Officer Felicia noticed that the back door was open and its frame was broken, and that there was a broken beer bottle and broken glass on the floor of the house, along with blood.

Gomez, who testified in his own defense, gave a quite different account of the activities in Muniz's house. He testified that he went there in search of his girlfriend, Beverly Skunk ("Skunk"), but found only Aranda in the kitchen. According to Gomez, after he asked if Skunk was present, Aranda--unprovoked--broke a beer bottle over Gomez's face and cut him under his arm with the broken bottle.

Later that day, after Gomez had been arrested, Muniz left her house and saw him standing nearby. As Muniz testified, Gomez yelled at her saying "something about you better not tell on me, or something, I'll tell them what you're doing at your house." While Muniz could not remember Gomez's exact words, she testified that he had threatened to hurt her.

After a two-day trial, the jury--disbelieving Gomez's account of the events--returned a verdict of guilty on the single-count indictment. During the sentencing hearing, the district court imposed two two-level enhancements to Gomez's base offense level for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, ³ and for possession of a dangerous

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weapon, pursuant to U.S.S.G. § 2B2.1(b)(4). ⁴ The district court found that the enhancement for obstruction of justice was supported not only by his threatening of Muniz after his arrest, but also by a finding that Gomez had committed perjury when he testified at trial, and by his failure to disclose his full criminal history to the presentence investigator. In addition, the district court determined that the broken bottle that Gomez had possessed constituted a dangerous weapon, which resulted in a two-level enhancement. These enhancements resulted in a total offense level of 21. When coupled with Gomez's criminal history category of III, the applicable guideline range was 46 to 57 months. Gomez received a 46-month sentence, and this appeal followed. II

Gomez raises several issues on appeal. He argues that his conviction must be reversed because the trial court erred in (1) not allowing him to present evidence that Aranda had fled the...