UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DARRYL J. GUTIERREZ, Defendant - Appellant. No. 18-2109 (D.C. No. 1:15-CR-03955-JB-1) (D.N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , PHILLIPS , and EID , Circuit Judges. **

________________ _________________ Darryl J. Gutierrez, a feder al inmate proceeding pro se 1 , appeals his conviction and sentence. Exercising jurisd iction under 28 U.S.C. § 1291, w e affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel. It m ay be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1.

** After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is there fore submitted without oral argument.

1 We construe Mr. Gutierrez’s plea dings liberally but we will no t act as his advocate. United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 2009). FILED United States Court of Appeals Tenth Circuit 

### May 15, 2019
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND In 2017, a jury convicted Mr. G utierrez of one count of obstruc ting the administration of tax laws, see 26 U.S.C. § 7212(a), and te n counts of filing a false tax return, see 26 U.S.C. § 7206(1). The distric t court judge sentenced Mr. Gut ierrez to 33 months’ imprisonment and one year of supervised release. Mr. Gutierrez timely filed a notice of appeal and wa ived his right to counsel.
DISCUSSION Mr. Gutierrez lodges several argum ents on appeal. Most are friv olous, so we do not address them in detail. 2 See Lonsdale v. United States , 919 F.2d 1440, 1448 (10th Cir. 1990) (recognizing th at courts are “not required to expend judicial resources” entertaining frivolous arguments). But Mr. Gutierrez raises four nonfrivolous arguments. First, Mr. Gutierrez argues that t he district court violated hi s Sixth Amendment right to counsel. At the beginning of the case, the district co urt appointed counsel to represent Mr. Gutierrez. 3 Mr. Gutierrez remain ed represented by counsel until after

2 Mr. Gutierrez lodges several t ypical tax-protestor claims. For example, Mr. Gutierrez argues that the statute of his conviction—26 U.S.C. § 7212(a)—is unenforceable because it lacked pr oper publication in the Feder al Register. He also argues that the United States a nd the United States of America are not the same entity and that New Mexico Nationals ca nnot serve as federal jurors be cause they are not U.S. citizens. We need not “refu te these arguments with somber reasoning and copious citation to precedent; to do so might suggest that thes e arguments have some colorable merit.” United States v. Vance , 215 F.3d 1338, at *2 n.1 (10th Cir. 2000) (unpublished) (quoting Crain v. Commissioner , 737 F.2d 1417, 1417 (5th Cir. 1984)).

3 The district court first appoint ed the Office of the Federal P ublic Defender to represent Mr. Gutierrez. The court removed the Fede ral Public Defenders from the3 Mr. Gutierrez’s sentencing heari ng. After sentencing but before entry of judgment, counsel moved to withdraw. As grounds, counsel stated that he had developed a material conflict with Mr. Gutie rrez which prevented him from c ontinuing his representation. The district court granted the motion. 4 Mr. Gutierrez did not seek new counsel and elected to proceed pro se on appeal. Sometime after the court grante d counsel’s motion to withdraw, it entered two memorandum orders formalizing ear lier decisions made before the sentencing hearing. 5 The court then entered the judgm ent and sentence. Mr. Gutierrez claims that the court’s release of defense counsel constitutes a constituti onal violation and requires reversal. Op. Br . at 12-13. We disagree. “The Sixth Amendment secures to a defendant who faces incarcera tion the right to counsel at all ‘critical stage s’ of the criminal process.” Iowa v. Tovar , 541 U.S. 77, 87 (2004). In this case, we need not decide whether Mr. Gutierr ez had a constitutional

case after it found that Mr. Gut ierrez could afford counsel. Later, the court appointed a different CJA attorney to repr esent Mr. Gutierrez. This attor ney represented Mr. Gutierrez until moving to withdraw after Mr. Gutierrez’s senten cing.

4 The limited amount of evidence av ailable in the record seems t o indicate that Mr. Gutierrez agreed with the cou rt’s decision to permit his co unsel to withdraw. Mr. Gutierrez never sought new couns el before judgment was entered, and Mr. Gutierrez waived his right to counsel on appeal.

5 The first order dealt with a p re-trial motion filed by Mr. Gut ierrez which claimed that the court held no power over him. The court orally denied the motion before trial but told Mr. Gutie rrez that it would write an opin ion on the matter. The second order concerned jury instr uctions, admissible evidence, and Mr. Gutierrez’s claim that the United States mus t provide him grand jury transc ripts before trial. As before, the court had already ru led on these issues but formali zed its decisions in the written order.4 right to counsel during the time b etween sentencing and the ent ry of the final judgment. Even if we assume that Mr. Gu tierrez was entitled to counsel du ring this period, we would hold that the absence of counsel was harmless. Harmless-error review applies to Sixth Amendment claims such as this. United
States v. Lott , 433 F.3d 718, 723 (10th Cir. 2006). On direct appeal, constit utional harmless-error review requires us to consider whether the gover nment “has proved beyond a reasonable doubt that th e error complained of did not contribute to the verdict obtained.” Acosta v. Raemisch , 877 F.3d 918, 933 (10th Cir. 2017) (citing Chapman v. California , 386 U.S. 18, 24 (1967)). The g overnment has made this showing

. As the government points out, Mr. Gutierrez had already been co nvicted and sentenced when his counsel moved to withdraw. After counsel had withdrawn, the district court issued two orders and the final judgment. The or ders merely repeated decisions made by the court befo re and during trial. The final judgment formalized the oral pronouncement made by the c ourt at sentencing. We have no doubt that these filings would not have been altered had Mr. Gutierrez continued to be represented by counsel. Second, Mr. Gutierrez claims that the government failed to prov e an essential element of § 7212(a). Specificall y, he claims that the governme nt failed to prove that during the Internal Revenue Servi ce (IRS) investigation, he had used or threatened to use physical force against any agent or employee of the United States. But the use of force was not an element of the charged crime.5 A jury convicted Mr. Gutierrez of violating 26 U.S.C. § 7212(a) . As one element of that crime, the govern ment must prove that the defen dant did “corruptly or by force or threats of force . . . obstruct or impede[]” the administration of Title 26 of the United States Code. Thus, the government can secure a co nviction by proving that the defendant acted in one o f three different ways: (1) by acting corruptly, (2) by using force, or (3) by threatening force. See United States v. Valenti , 121 F.3d 327, 330-331 (7th Cir. 1997) (detailin g how the statute can be viola ted in multiple ways); United States v. Bostian , 59 F.3d 474, 477 (4th Cir. 1995) (same). In its indictment, the grand jury charged that Mr. Gutierrez ha d “corruptly endeavor[ed] to obstruct and impe de the due administration of t he internal revenue laws.” R. vol. I at 15. And the co urt instructed the jury that in order to convict Mr. Gutierrez under § 7212 it had to f ind that Mr. Gutierrez acted “corruptly” to “obstruct or impede the due administration of the internal revenue laws a s charged.” R. vol. II at 258. So contrary to Mr. Gutie rrez’s claim, the government wa s not required to prove that Mr. Gutierrez used, o r threatened to use, force. Third, Mr. Gutierrez argues that I RS agents violated his rights under Miranda
v. Arizona , 384 U.S. 436 (1966). In support , Mr. Gutierrez alleges that I RS agents failed to read him his Miranda rights when he was “arreste d, handcuffed, transported, booked, questioned, arraigned a nd released.” Op. Br. at 24. But Mr. Gutierrez did not raise this argument below, meani ng we review the issue for plai n error. Under plain-error review, Mr. G utierrez must show the following four things: “(1) error, (2) that is plain, w hich (3) affects substantial ri ghts, and which (4)6 seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Mendoza , 698 F.3d 1303, 1309 (10th Cir. 2012). We need not address the first two prongs of th e plain-error test because Mr . Gutierrez has failed to demonstrate that any potential e rror affected his substantial r ights. See United States v. Gallegos , 784 F.3d 1356, 1362-63 (10th Ci r. 2015) (declining to address the first and second prong of the plain-error test when defendant failed to satisfy the third and fourth prongs). To demonstrate that an error aff ects his substantial rights, Mr . Gutierrez must show that “but for the error c laimed, the result of the proceed ing would have been different.” Mendoza , 698 F.3d at 1310. Mr. Gutierre z has not made this showing. Nowhere in Mr. Gutierrez’s brie f does he point us to any statem ents obtained in violation of Miranda that were used to secure his conviction. Thus, even if we assumed a Miranda violation, Mr. Gutierrez has pr ovided us with no record evidenc e demonstrating that this claimed error affected his substantial rights. Accordingly, Mr. Gutierrez has failed to satisfy t he plain-error standard of rev iew. Fourth, Mr. Gutierrez c laims that the district court erred by i mposing a supervised release condition that requires him to file an incom e tax return. According to Mr. Gutierrez, such a require ment violates his right against self-incrimination protected by the Fifth Amendment . Once again, Mr. Gutierrez did not advance this argument below and, accordingly , our review is for plain error. Here, Mr. Gutierrez fails at the first step of the plain-error analysis. He cannot show error let alone error that i s plain. This court has alread y rejected the argument7 that requiring a citize n to file a tax return violates the Fift h Amendment. United
States v. Moore , 692 F.2d 95, 97 (10th Cir. 1979) (rejecting the claim that th e Fifth Amendment provides a defense ag ainst failing to file a tax retu rn) (citing United States v. Sullivan , 274 U.S. 259 (1927)). Accordingly , we conclude that the distr ict court did not err when it impos ed a condition of supervised rel ease requiring Mr. Gutierrez to submit federal income tax returns.
CONCLUSION Having thoroughly reviewed Mr. G utierrez’s briefs, the governme nt’s brief, and the record in this case, we reject all of Mr. Gutierrez’s a rguments on appeal. Accordingly, we affirm Mr. Gutie rrez’s conviction and sentence.

Entered for the Court
Gregory A. Phillips Circuit Judge