WASHINGTON — Two months after Judge Neil Gorsuch was confirmed to the US Court of Appeals for the Tenth Circuit in August 2006, he put out his first written opinion. In a criminal case involving an undocumented immigrant, the decision written by President Trump’s Supreme Court nominee tackled a subject that’s been a centerpiece of Trump’s policy agenda.
The case involved Juan Luis Gutierrez-Palma, a man of Mexican origin who was in the United States illegally. He already had been deported once after being convicted of a drug trafficking charge. He came back to the United States, again illegally, and had more run-ins with the law, this time for drunk driving and domestic violence.
Gutierrez-Palma pleaded guilty to illegal entry into the United States in 2005, and was sentenced to 57 months in jail. Gutierrez-Palma had asked for a lower sentence, and when he didn’t get it, he took the case to the 10th Circuit.
Gorsuch, writing for the three-judge panel in October 2006, upheld the jail term ordered by the trial judge and rejected Gutierrez-Palma’s request for leniency.
The sentence that the trial judge ordered for Gutierrez-Palma was at the bottom of the guidelines range, given Gutierrez-Palma’s criminal history. Gutierrez-Palma had asked for a lower sentence, arguing that the sentencing enhancement he was subject to because of his earlier drug-trafficking charge was unreasonable.
Gorsuch wrote that this argument was a “policy” disagreement — one that should be directed at Congress and the US Sentencing Commission, and not the court.
“It is not our role to substitute our policy views about such matters for those of elected officials or their designees,” Gorsuch wrote, in a line that would appeal to advocates of judicial restraint and presaged remarks he made more than a decade later in accepting President Trump’s nomination of him for the Supreme Court.
Gorsuch also rejected Gutierrez-Palma’s argument that other defendants in similar circumstances had received lower sentences. One case that Gutierrez-Palma cited as an example involved an undocumented immigrant convicted of a misdemeanor charge for throwing a rock through the rear window of a car after the driver repeatedly tried to run him over.
“Mr. Gutierrez-Palma also has a recent conviction for assaulting his wife with a gun; we have been pointed to no similar blemish in Mr. Perez-Nunez's record,” Gorsuch wrote, referring to the defendant in the earlier case.
In a bit of word play at the end, Gorsuch noted that Gutierrez-Palma had complained that the circumstances of his offense were “unremarkable in all respects.”
“However that may be, Mr. Gutierrez-Palma has supplied us with no reason to conclude that the sentence he received was itself anything other than unremarkable — consistent with the low-end of the Guidelines and imposed by the District Court only after a careful review,” Gorsuch wrote.