FILED

NOT FOR PUBLICATION

MAY 23 2025

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-10232

Plaintiff-Appellee, D.C. Nos.

2:19-cr-01224-DJH-1 v. 2:19-cr-01224-DJH MARTIN GUTIERREZ-BARBA,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the District of Arizona

Diane J. Humetewa, District Judge, Presiding

Submitted May 12, 2025**

Phoenix, Arizona Before: RAWLINSON, BUMATAY, and SANCHEZ, Circuit Judges.

Martin Gutierrez-Barba (Gutierrez-Barba) appeals his conviction and sentence for reentry of a removed alien in violation of 8 U.S.C. § 1326(a). He also appeals the denial of his request to present a necessity defense. Reviewing de

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). novo, we affirm. See United States v. Raygosa-Esparza, 566 F.3d 852, 854 (9th Cir. 2009); see also United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009).1

1. To present evidence of necessity as a defense, a defendant must first establish through an offer of proof that: “(1) he was faced with a choice of evils and chose the lesser evil; (2) he acted to prevent imminent harm; (3) he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) there were no other legal alternatives to violating the law.” United States v. Barnes, 895 F.3d 1194, 1204 (9th Cir. 2018) (citation, footnote reference, and internal quotation marks omitted) (emphasis added). Gutierrez-Barba’s offer of proof failed to meet this standard. At a minimum, Gutierrez-Barba failed to establish that he acted to prevent imminent harm.

“[T]he test for entitlement to a defense of necessity is objective.” United States v. Perdomo-Espana, 522 F.3d 983, 988 (9th Cir. 2008). Viewing Gutierrez- Barba’s claim of necessity objectively, we are not persuaded that Gutierrez-Barba’s presence was necessary to prevent imminent harm to his young daughter. As

1

The parties disagree as to whether some claims should be reviewed for plain error rather than de novo. Because we conclude that Gutierrez-Barba’s claims fail under either standard of review, we need not address this issue.

2 evidenced in his motion in limine, Gutierrez-Barba’s young daughter was provided excellent medical care, including “the most advanced technology afforded by the United States medical system.” Viewed objectively, Gutierrez-Barba’s presence was not necessary to provide for his young daughter’s medical needs. See id.

2. To succeed on a claim that the district court violated the Due Process Clause by imposing “a sentence founded at least in part upon misinformation of constitutional magnitude,” Gutierrez-Barba “must establish the challenged information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence.” United States v. Hill, 915 F.3d 669, 674 (9th Cir. 2019) (citations omitted). The district court’s reference to a “plan” to return was made in the context of Gutierrez-Barba’s repeated illegal entries and the need to decide how to maintain his family relationships post-removal. Because that context was not predicated on any false or unreliable information, Gutierrez-Barba’s due process challenge fails. See United States v. Rivera, 682 F.3d 1223, 1237 n.12 (9th Cir. 2012).

3. The district court adequately responded to Gutierrez-Barba’s mitigation argument that because the government had indicated that it was likely he would be removed from the United States, there was need to impose a sentence to deter him from future crime. The government clarified during sentencing that it was not a

3 question of “whether Mr. Gutierrez-Barba is going to be removed. It’s when. Therefore, it was not necessary for the district court to further elaborate on the deterrence factor. See United States v. Petri, 731 F.3d 833, 842 (9th Cir. 2013).

AFFIRMED.2

2

Gutierrez-Barba’s unopposed Third Motion to Extend Reply Brief Deadline (Dkt. 68) is GRANTED. We have considered the Reply Brief in reaching our decision.

4