Petition for Writ of Certiorari — Damien Guidry, Petitioner v. United States

No.

Supreme Court of the United States

Damien Guidry,

Petitioner,

v.

United States of America,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

Petition for Writ of Certiorari

Alfred Boustany, II, La. Bar Roll No. 3329

Counsel of Record for Petitioner

Boustany Law Firm

421 West Vermilion Street

P.O. Box 4626

Lafayette, LA 70502

(337) 261-0225 (telephone)

(337) 453-4963 (fax)

QUESTION PRESENTED

Whether the Federal Sentencing Guidelines permit the aggregation of a

prior sentence of imprisonment with a subsequent probation modification

imposed in lieu of a formal revocation.

li

PARTIES TO THE PROCEEDING

Petitioner is Damien Guidry, who was Defendant-Appellant in the court below.

Counsel for Damien Guidry is Alfred Boustany, Boustany Law Firm, PO Box 4626,

Lafayette, LA 70502-4626.

Respondent is the United States of America, who was the Plaintiff-Appellee in

the court below. The Respondent was represented by the U.S. Attorney’s Office for

the Western District of Louisiana, 800 Lafayette Street, Ste. 2200, Lafayette, LA,

70501-6832.

iil

STATEMENT OF RELATED PROCEEDINGS

. United States of America v. Damien Guidry, No. 17-00040 in the United States

District Court for the Western District of Louisiana, Lake Charles Division.

Mr. Guidry pled guilty on November 30, 2018 and was sentenced to 115 months

on April 29, 2019.

. United States of America v. Damien Guidry, No. 19-30347, Mr. Guidry

appealed his sentence to the United States Court of Appeals for the Fifth

Circuit and judgment was entered on June 4, 2020.

iv

TABLE OF CONTENTS

QUESTION PRESENTED ..........ccccsssssssssssssscsscscsecssassecesssssesssssesessecassusaesecaesucaesucassasausesarcaseusesascecess ii

PARTIES TO THE PROCEEDING ............cccscsssssesssssssececsececsesececsececsesecsessssesersesesscacasacaesacsecacsesevecs iii

STATEMENT OF RELATED PROCEEDINGS .........cc.ccsscssscssccssssessescecesscsscecsussecsessssecsesassacsscassactess iv

TABLE OF CONTENTS ..........cesssssssssssssssessessssssscssssesuecessesscsuesecusssenscuecusseseesecsessesassucaesacsnesessucaceneass V

TABLE OF AUTHORITIES. .........ccccccssssssssssssscsssscssssssssscoceveaesecuesecsesecsesesnesesersessesacasacassecssseeessevsces Vii

OPINIONS BELOW ...........sscsssssssssssessecsssesssssssussssucsecussucsecucnscsscussucsucessussessesassessesaesucsacaesassasssseenses 1

SURISDICTION..u........scsscsssscsssssscsscsesscssssssusscssvssssvsscsesuscsesecscsucnesuecessscassassusacsnssecaesaesessessesassevsssesenes 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.........c.ccsccscescessessessessessesssesesseeses 1

STATEMENT OF THE CASE ..........cccscsssssssssscssssssesssscsscsececsccusscsecsececsecuesesussecusaesessesersesessarassecacaesess 3

REASONS TO GRANT THIS PETITION..........ccscscssssssscscccessccsessectscessesecsesecuesesussesssarsassassesecassseaesess 6

I. The Fifth Circuit Court of Appeals has entered a decision that: (i) renders the

guideline’s specific aggregation clause superfluous: (ii) ignores the critical

distinctions between modification of probation and revocation of probation; (iii) is

contrary to a decision from the Ninth Circuit Court of Appeals; and (iv) fails to

resolve the ambiguity in favor of Damien Guidry, as mandated by the rule of

VOM yo. eesssssesesscecesssssscessesesesesssssssssscsvscsensscsscecsesesecececseasessecuassscscsessaeserasssausesacacasssassacevaseenens 6

1. Applicable Law... csssssssssssssssssssssscesssscssesscosscseseseseseseceseceeteeccsesseceuscsrseacacseseesnes 7

ii. The Fifth Circuit majority erroneously held that any terms of imprisonment

served for a single adjudication of guilt are automatically aggregated, which

renders the guideline’s aggregation clause superflUouB................cccccccesesesessseceseesesesees 9

iii, The sentencing guidelines recognize the significant differences between

modification of a sentence and revocation of probation by providing for

aggregation only upon formal revocation. .....0........cccccccsseseccscesessscssscecscessccscscessesscessssnss 11

iv. The Fifth Circuit’s majority opinion conflicts with a well-reasoned

persuasive decision from the Ninth Circuit Court of Appeals. ..............c.ccccssessssesesee: 13

v. The rule of lenity requires any ambiguity in the guidelines to be resolved in

favor of Damien Guidry... sscenseeessascesseescsceeesscsseuseesscesesseeescecoseuscassessscsesesssessuseescesenscsssacees 17

CONCLUSION .......essssssssssssssssnsssesssssssssescseseussntsttenenttansssssssnssssssssseececcesseosesusssssssssssssssseessessseesen 18

INDEX TO APPENDICES

APPENDIX A Opinion of the Fifth Circuit Court of Appeals, 1

United States v. Guidry, 960 F.3d 676 (5th Cir. 2020)

APPENDIX B Ruling of the Western District of Louisiana, 21

Transcript of Sentencing Hearing, April 29, 2019

vi

TABLE OF AUTHORITIES

Cases Page Number

Bifulco v. United States, 447 U.S. 881 (1980) ............:cccccccccossseccssssscesscccesscsccessccscesees 17

Cheney v. State, 755 S.W.2d 123 (Tex. Crim App. 1988). ..........c:ccccsssssssssscessssssseseeees 7

Crawford Fitting Co., 482 U.S. 437 (1987) .......cccccccssessssecssessessssesseseseesessesteesseeeeseesees 10

Gagnon v. Scarpelli, 411 U.S. 778 (1978) ........cccccsccsccceccesccsecseseccecceccecececscesceessesscesees 11

Hinck v. United States, 550 U.S. 501 (2007)............c.ccccccccsssccssscccsesscccsscesssccesscecseceees 10

Johnson v. United States, 529 U.S. 694 (2000) ............ccccccsccsecccessecessesccccsscccssecseccessers 16

Morrissey v. Brewer, 408 U.S. 471 (1972) .......ccccccsscsssscsscssscsecesecesccssccesececesecsseeecs 11, 12

United States v. Galvan, 453 F.3d 738 (6th Cir. 2006) ..............cccccccsssccessccssccstsceseceess 14

United States v. Glidden, 77 F.3d 38 (2d Cir. 1996) ..........cccccsscsssesssssscessscsssssscees 14, 16

United States v. Glover, 154 F.3d 1291 (11th Cir. 1998) ...............cccccccsseeeees 14, 15, 16

United States v. Guidry, 960 F.3d 676 (5th Cir. 2020)..........cecscssscsscesceeceeeeees passim

United States v. Kaluza, 780 F.3d 647 (Sth Cir. 2015).....cccccccccccssscsscsssscsessesssessecseees 17

United States v. Mendez, 560 F. App’x 262 (5th Cir. 2014) (per curiam)......... passim

United States v. Miro, 29 F.3d 194 (5th Cir. 1994)...........cccccccccccsessssssscessccessscesceccessees 8

United States v. Ramirez, 347 F.8d 792 (9th Cir. 2008). 0... 18, 14, 15, 16

United States v. Reed, 94 F.8d 341 (7th Cir. 1996) .............cccccccccssssseccccsscccescssesseeceses 14

United States v. Stanford, 833 F.3d 500 (Sth Cir. 2018). .............cccccccccsscccsccestesesccessees 9

United States v. Townsend, 408 F.3d 1020 (8th Cir. 2005)............:ccccccsscsssccsscesseeseees 14

Taylor v. United States, 495 U.S. 575 (1990).........ccc.ccccsscccsssscccsssessesccsecesccseseseseusessees 17

Stinson v. United States, 508 U.S. 36 (1998) ..........ccccccccsccssesscccecsscsscsccecesecsscsesseesossseess 8

Statutes

28 U.S.C. § 125401) ooo ecssccccscssscssessecssecssssssssssssssssessecsecsseeseessccsuscssetsesssecessesseceeece 1

La. Code Crim. Proc. Ann. art. 896..........ccccccccsssccsecccesccseccesececsccsscsssenscesseesscessccsssesasess 12

La. Code Crim. Proc. Amn. art. 900...........ccccccsscccssccesccsscccsccecsscesseccsscecccecsssacsessesceseuss 12

Other Authorities

U.S.S.G. § 4A1.1(a) oc ececscssescscsssssssssscscsssssscseecscsceseececseacacscseescasasassesssceacscacsesceeseses 1,6

U.S.S.G. § 4A1.2(a)(1) oo ceecccsssssescscsssssscecsssssscsecescssecsceseseseacsesescsacssscscataracesssaacees 1, 2,7

U.S.S.G. § 4A1.2(b)(2) oe cecccssssssescsssessesesessssssescscacscsecccesesesesssesesssacscseauacsesesavasensceusenes 7

U.S.S.G. § 4A. 20d)D) occ ecccccccccsscssscessecssssccscccecscessacscesscessesecsesecccsccesccccceeeces 1, 2,7

U.S.S.G. § 4AV.2(k) oe eccccsssssessssscssscsscssscesscssssssesssscsesssessesesesssecsusessssseeceseees passim

vii

PETITION FOR WRIT OF CERTIORARI

Petitioner Damien Guidry seeks a writ of certiorari to review the judgment of

the United States Court of Appeals for the Fifth Circuit in United States v. Guidry,

960 F.3d 676 (5th Cir. 2020).

OPINIONS BELOW

The opinion of the Court of Appeals is located within the Federal Reporter at

United States v. Guidry, 960 F.3d 676 (5th Cir. 2020), and reprinted as Appendix A

to this Petition. On April 29, 2019, the Western District of Louisiana sentenced Mr.

Guidry to 115 months and the transcript of this hearing is attached as Appendix B.

JURISDICTION

The panel opinion and judgment of the Fifth Circuit were entered on June 4,

2020. This Honorable Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This Petition involves the Federal Sentencing Guidelines that instruct district

courts on computing a defendant’s criminal history category and include: U.S.S.G. §

4A1.1(a); U.S.S.G. § 4A1.2(a)(1); U.S.S.G. § 4A1.2(d)(1); and U.S.S.G. § 4A1.2(k).

U.S.8.G. § 4A1.1(a) provides that, when computing the criminal history

category: “Add 3 points for each prior sentence of imprisonment exceeding one year

and one month.”

U.S.S.G. § 4A1.2(a)(1) defines “prior sentence” as “any sentence previously

imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo

contendere, for conduct not part of the instant offense.”

U.S.S.G. § 4A1.2(d)(1) provides instructions for offenses occurring prior to age

18: “If the defendant was convicted as an adult and received a sentence of

imprisonment exceeding one year and one month, add 3 points under § 4A1.1(a) for

each such sentence.”

U.S.S.G. § 4A1.2(k) provides for instances of revocations of probation:

(1) In the case of a prior revocation of probation, parole, supervised

release, special parole, or mandatory release, add the original term of

imprisonment to any term of imprisonment imposed upon revocation.

The resulting total is used to compute the criminal history points for §

4A1.1(a), (b), or (c), as applicable.

(2) Revocation of probation, parole, supervised release, special parole, or

mandatory release may affect the time period under which certain

sentences are counted as provided in § 4A1.2(d)(2) and (e). For the

purposes of determining the applicable time period, use the following:

(A) in the case of an adult term of imprisonment totaling more than one

year and one month, the date of last release from incarceration on such

sentence (see § 4A1.2(e)(1)); (B) in the case of any other confinement

sentence for an offense committed prior to the defendant’s eighteenth

birthday, the date of the defendant’s last release from confinement on

such sentence (see § 4A1.2(d)(2)(A)); and (C) in any other case, the date

of the original sentence (see § 4A1.2(d)(2)(B) and (e)(2)).

STATEMENT OF THE CASE

In January of 2016, Damien Guidry arranged for an individual in California to

ship 14 pounds of marijuana to Iota, Louisiana. On January 26, 2016, postal

inspectors intercepted the package and law enforcement obtained a search warrant

for the intended destination. After a postal inspector delivered the package, Mr.

Guidry and two other individuals were observed leaving the residence with the

package of marijuana in the bed of the pickup truck. Law enforcement stopped the

truck, seized the marijuana, and arrested Damien Guidry on state violations of being

a convicted felon in possession of a firearm and possession with intent to distribute

marijuana.

Nearly one year later, on November 18, 2016, Norman Pattum was pulled over

on Interstate 10 for improper use of the left-hand lane. Pattum consented to a search

of the truck and law enforcement found approximately two kilograms of cocaine. The

truck was registered to Damien Guidry and Pattum immediately told law

enforcement that he went to Houston to purchase the cocaine for Damien Guidry.

Using this information, law enforcement arrested Damien Guidry on state violations

of possession with intent to distribute cocaine and being a convicted felon in

possession of a firearm.

On February 9, 2017, the Government indicted Mr. Guidry on five counts

which included distribution of cocaine (count one), possession with intent to distribute

marijuana (count two), conspiracy to distribute and possess with intent to distribute

i

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cocaine (count four), and two counts of being a convicted felon in possession of a

firearm (counts three and five).

On November 30, 2018, Mr. Guidry pled guilty to possession with intent to

distribute marijuana (count two) and conspiracy to distribute and possess with intent

to distribute cocaine (count four). In exchange, the Government dismissed the

remaining three counts of the indictment.

An amended Presentence Report (PSR) identified a guideline range of 100 to

125 months, based upon a total offense level of 25 and a criminal history category of

V. Mr. Guidry filed objections to the PSR, and specifically objected to a three-point

increase in his criminal history based upon a 1997 drug offense to which he pled no

contest in 1999. For this conviction, Mr. Guidry received a five-year prison sentence,

fully suspended, and was placed on three years of probation. As a condition of his

probation, Mr. Guidry was ordered to serve one year in prison and received credit for

the year he served in pretrial detention. In 2000, the state court found Mr. Guidry

was in technical violation of the conditions of his probation because he had not

maintained employment, failed to pay fines, and had not completed a substance abuse

program. The state court imposed a sanction of 180 days imprisonment “in lieu of

revocation.”

The PSR aggregated Mr. Guidry’s year in prison with the 180-day sanction he

received in lieu of revocation and assigned a three-point increase in his criminal

history score. Without this three-point increase, Mr. Guidry’s criminal history score

would be IV and his sentencing range would have been 84 to 105 months Over Mr.

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Guidry’s objection, the district court found no issue with the PSR’s calculations. See

Appendix B, pp. 96-100. The district court ultimately imposed a sentence of 115

months.

Mr. Guidry timely appealed his sentence to the Fifth Circuit Court of Appeals.

On June 4, 2020, the Fifth Circuit affirmed Mr. Guidry’s sentence. United States v.

Guidry, 960 F.3d 676 (5th Cir. 2020); Appendix A. In a partial dissent, Judge Graves

agreed that the district court erroneously enhanced Mr. Guidry’s criminal history

score by three points for the 1997 drug offense. See Guidry, 960 F.3d at 686-89;

Appendix A, pp. 15-20. The dissent rejected the majority’s ruling that any period of

incarceration served for a single prior adjudication of guilt is automatically

aggregated in calculating a criminal history score. The dissent found this logic would

render superfluous the guideline’s aggregation clause, which is only triggered by a

forma] probation revocation.

‘

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REASONS TO GRANT THIS PETITION

I. The Fifth Circuit Court of Appeals has entered a decision that: (i) renders

the guideline’s specific aggregation clause superfluous; (ii) ignores the

critical distinctions between modification of probation and revocation of

probation; (iii) is contrary to a decision from the Ninth Circuit Court of

Appeals; and (iv) fails to resolve the ambiguity in favor of Damien Guidry,

as mandated by the rule of lenity.

When Damien Guidry was 17 years old, he was arrested for possession with

intent to distribute cocaine and prosecuted as an adult. He pled no contest in 1999,

was sentenced to five years of imprisonment, fully suspended, and placed on three

years of probation. As a condition of his probation, Mr. Guidry was ordered to serve

one year in prison with credit for the year he served prior to his plea. In 2000, Mr.

Guidry violated the terms of his probation and received a sanction of 180 days in

prison to be served “in lieu of revocation.”

At issue is whether the sentencing guidelines permit the aggregation of Mr.

Guidry’s 180-day penalty with his original sentence of one year for purposes of

calculating his criminal history. The Fifth Circuit and the Eleventh Circuit hold that

all periods of imprisonment served for a single adjudication of guilt are automatically

aggregated in calculating a criminal history. In contrast, the Ninth Circuit holds that

a probation revocation must occur to trigger the specific aggregation clause of the

sentencing guidelines. This Honorable Court should grant certiorari to clarify this

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i

issue and resolve the conflicting decisions on this issue from the Ninth, Fifth, and

Eleventh Circuits.

i. Applicable Law

Under the sentencing guidelines, three points are added to a defendant’s

criminal history score for offenses committed by the defendant prior to the age of

eighteen if “the defendant was convicted as an adult and received a sentence of

imprisonment exceeding one year and one month.” U.S.S.G. § 4A1.2(d)(1). Because

Mr. Guidry’s 1997 offense occurred prior to the age of 18, the addition of three points

is only permissible if his sentence of imprisonment exceeded one year and one month.

‘Prior sentence’ is defined as “any sentence previously imposed upon

adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for

conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1). For sentences that

included suspended terms of imprisonment, the term “sentence of imprisonment’

refers only to the portion that was not suspended. U.S.S.G. § 4A1.2(b)(2).

As Damien Guidry’s 1997 offense resulted in a prior sentence of one year, with

the remaining four years suspended, a three-point enhancement is only possible if

the 180-penalty is added to the original prior sentence of one year. The guidelines

specifically provide for aggregation of terms only if a probationary sentence results

in a “revocation of probation.” U.S.S.G. § 4A1.2(k) (emphasis added). Upon revocation

of probation, a district court must “add the original term of imprisonment to any term

of imprisonment imposed upon revocation.” Jd. The “resulting total” is used to

calculate the criminal history points. Jd.

The official commentary provides that § 4A1.2(k) is triggered in cases where

the original term of imprisonment imposed, if any, did not exceed one year and one

month. “Rather than count the original sentence and the resentence after revocation

as separate sentences, the sentence given upon revocation should be added to the

original sentence of imprisonment, if any, and the total should be counted as if it were

one sentence.” § 4A1.2(k) at cmt n.4(d). "We are bound by the commentary when it

interprets or explains a guideline unless it violates the Constitution or a federal

statute or is inconsistent with or a plainly erroneous reading of that guideline."

United States v. Miro, 29 F.3d 194, 198 (5th Cir. 1994) (citing Stinson v. United

States, 508 U.S. 36, 42-43, 113 S. Ct. 1913, 123 L. Ed. 2d 598 (1998).

It is undisputed that Mr. Guidry’s probation for the 1997 offense was not

revoked and the state court imposed the 180-day sanction “in lieu of revocation.”

United States v. Guidry, 960 F.3d 676, 684 (5th Cir. 2020); Appendix A, p. 10.

However, the Fifth Circuit majority incorrectly determined that all periods of

incarceration served for a single adjudication of guilt are automatically aggregated

for purposes of assigning criminal history scores. This interpretation of the

sentencing guidelines renders the specific aggregation clause superfluous, ignores the

critical distinctions between a modification of probation and a revocation of probation,

and is at odds with a persuasive decision from the Ninth Circuit Court of Appeals.

Finally, if there is any ambiguity in the interpretation of the guidelines, the rule of

lenity requires the discrepancy be resolved in favor of Mr. Guidry.

iii The Fifth Circuit majority erroneously held that any terms of

imprisonment served for a single adjudication of guilt are automatically

aggregated, which renders the guidelines aggregation clause

superfluous.

In upholding Mr. Guidry’s sentence, the Fifth Circuit majority relied upon its

prior decision of United States v. Mendez, 560 F. App’x 262 (5th Cir. 2014) (per

curiam). In Mendez, the majority stated that a sentence imposed upon adjudication

of guilt under U.S.S.G. § 4A1.2(A)(1) includes any later modifications to the original

sentence of community supervision, “even when the revised sentence included a

period of confinement.” Mendez, 560 F. App’x at 266-267. This reading, however,

ignores the more specific guideline provision that permits aggregation of terms of

imprisonment only upon formal revocation. To this extent, the majority’s opinion is

inconsistent with traditional rules of statutory interpretation, which are utilized

when interpreting sentencing guidelines. United States v. Stanford, 833 F.3d 500,

511 (5th Cir. 2018).

Relying on Mendez’s interpretation of the guidelines, the majority in this case

essentially disregarded § 4A1.2(k), which specifically explains aggregation is only

permissive when a formal revocation of probation has occurred. Instead, the majority

relies on § 4A1.2(a)(1), which is a generic provision that is silent on aggregation and

merely defines a “prior sentence.” Mendez, 560 F. App’x, at 269 (Higginbotham, J.,

dissenting). As noted by the dissents in both Mendez and this case, the majority

opinions hold that “a specific provision for the aggregation of sentences if and when

probation has been revoked is of no moment.” Jd. See also Guidry, 960 F.3d at 687

(Graves, J. dissenting). The Mendezand Guidry dissents further emphasize a specific

sentencing provision that “deals precisely with the situation here — where an initial

term of imprisonment is followed by probation and then by imprisonment when the

terms of probation are violated” and that specific provision “must be read together

with the generic provision that simply defines ‘prior sentence’ as ‘any sentence

previously imposed upon adjudication of guilt.” Jd.

When statutes concern the same subject, relate to the same person or class of

persons, or have the same object or purpose, they must be construed in pari materia.

Cheney v. State, 155 S.W.2d 128, 126 (Tex. Crim App. 1988). A “precisely drawn,

detailed statute preempts more general remedies.” Hinck v. United States, 550 U.S.

501, 506 (2007). In fact, unless there is a “clear intention otherwise,” the general

statute does not control nor nullify the specific statute, regardless of the “priority of

enactment.” Crawford Fitting Co., 482 U.S. 487, 445 (1987) (emphasis in original).

Despite the “longstanding” practice of construing statutory provisions in pari

materia, the majority opinions in both Mendezand Guidry have rendered § 4A1.2(k)

superfluous by reading the more general provision as controlling. Because there is a

specific guideline provision that only permits aggregation of a subsequent term of

imprisonment resulting from a probation revocation, Mr. Guidry’s 180-day sanction

imposed in lieu of revocation was improperly added to his initial term of

imprisonment.

10

iii. The sentencing guidelines recognize the significant differences between

modification of a sentence and revocation of probation by providing for

aggregation only upon formal revocation.

As noted by the dissents in both Mendez and Guidry, there is a significant

difference between modification of a probationary sentence and revocation of

probation. Because revocation is a different procedure with strict due process

requirements, the sentencing guidelines provide for aggregation of terms of

imprisonment only upon revocation of a sentence. See U.S.S.G. § 4A1.2(k).

The Constitution requires that prior to revocation of probation or parole, there

must be “(1) a formal finding that a probationer has committed a violation and (2) a

determination that the violation was serious enough to warrant reimposing the

probationer’s original sentence.” Guidry, 960 F.3d at 688 (Graves, J., dissenting)

(citing Morrissey v. Brewer, 408 U.S. 471, 479-80 (1972); Gagnon v. Scarpelli, 411

U.S. 778, 782 (1973) (extending requirements of Morrissey to probation revocation

hearings)).

The Constitution provides procedural safeguards to ensure due process prior

to the drastic consequences of revocation. These safeguards include written notice of

the claimed violations of probation: disclosure of the evidence against the probationer;

assistance of counsel; the opportunity to present evidence showing that revocation is

unwarranted; a preliminary hearing to determine whether there was reasonable

cause to believe that the probationer violated conditions of his or her probation; if

requested, a final revocation hearing to determine whether revocation is warranted;

11

and “a written statement by the factfinders as to the evidence relied on and reasons

for revoking [probation].” Morrissey, 408 U.S. at 485-89.

The aggregation clause of § 4A1.2(k) explicitly requires the “more serious

sanction of revocation be imposed before two sentences can be aggregated|.]” Guidry,

960 F.3d at 688 (Graves, J., dissenting) (quoting Mendez, 560 F. App’x at 270

(Higginbotham, J. dissenting)). In Mr. Guidry’s case, the majority notes that the state

court modified his probation in 2000 pursuant to La. Code Crim. Proc. Ann. art.

896(B) (authorizing a court to “impose additional conditions of probation...without a

contradictory hearing with the state”).

Modification of probation in Louisianan does not provide the procedural

safeguards mandated for a formal revocation hearing. As argued during Mr. Guidry’s

sentencing hearing, when the state court imposed the 180-day sanction in 2000, Mr.

Guidry “was not represented by counsel” and the sanction imposed was “in lieu” of a

formal revocation hearing. Appendix B, p. 97. Furthermore, Mr. Guidry was found

only in “technical violation” of the terms of his probation, as he was not re-arrested.

Had the exact same scenario occurred today, Mr. Guidry would have faced only a 15-

day sanction for the first technical violation of his probation. See La. Code Crim. Proc.

Ann art. 900(A)(6)(b)(); Appendix B, pp. 97-98.

Since modification of probation in Louisiana does not provide the same

procedural safeguards as a revocation of probation, the more serious consequence of

aggregation of imprisonment terms cannot be applicable in both scenarios. Clearly, §

4A1.2(k) provides for aggregation only when a defendant’s sentence was formally

12

revoked with all the procedural safeguards. Since Mr. Guidry’s sentence was not

revoked, his 180-day sanction should not be aggregated with his original term of

imprisonment.

iv. The Fifth Circuit’s majority opinion conflicts with a well-reasoned

persuasive decision from the Ninth Circuit Court of Appeals.

This issue presents a split in the circuit courts, as the Ninth Circuit holds that

revocation of probation is required to aggregate terms of imprisonment resulting from

a single adjudication of guilt and the Fifth and Eleventh Circuits hold that any terms

of imprisonment resulting from a single adjudication of guilt are automatically

aggregated.

In United States v. Ramirez, the Ninth Circuit determined whether

“temporary detentions” imposed in lieu of revocation could suffice to aggregate terms

of imprisonment, pursuant to § 4A1.2(k). 347 F.3d 792 (9th Cir. 2003). When Ramirez

was 17 years old, he received a 14-year sentence, served four years, and was released

on parole. /d. at 796. On two subsequent occasions, Ramirez violated the terms of his

parole and spent time in temporary detention. It was “undisputed by the parties that

Ramirez’s parole was never actually revoked under state law.” Jd. at 797.

The Ninth Circuit rejected the Government’s argument that temporary

detentions should be treated as a constructive revocation of parole and thus

aggregated with his prior sentence. Jd. at 799. The Ninth Circuit discussed at length

the distinctions between modification of supervision and revocation of probation,

finding when “the terms of probation are modified...but the probationer remains

13

under the supervision of the probation entity, revocation has not occurred” and the

terms of imprisonment cannot be aggregated under § 4A1.2(K). Jd. at 801. “"In light

of the usual meaning of the term revocation, and state and federal practice, we hold

that the second temporary detention does not fall within the scope of § 4A1.2(k)." Jd.

at 805.

Taking an opposite approach, the Fifth Circuit relied upon a lone decision from

the Eleventh Circuit to hold that any terms of imprisonment resulting from a single

adjudication of guilt are automatically aggregated. The majority opinions of both this

case and the prior unpublished decision of United States v. Mendez, 560 Fed. Appx.

262 (5th Cir. 2014) (per curiam), argue that “Ramirez stands alone” and claim that

“at least five other circuits have aggregated terms imposed for probation violations

with prior sentences in § 4A1.2(a), regardless of the state court terminology.” Mendez,

F. App’x at 267; Guidry, 960 F.3d at 685. However, of the five cases relied upon by

the majority in this case and in Mendez, only United States v. Glover directly

addresses the issue.!

1 In three of the cases relied upon by the majority, the probationer was resentenced to probation after

the period of incarceration. See United States v. Reed, 94 F.3d 341, 342-43 (7th Cir. 1996); United

States v. Glidden, 77 F.3d 38, 39 (2d Cir. 1996); United States v. Galvan, 453 F.3d 738, 740 (6th Cir.

2006) (noting that the court found it "telling" that an electronic monitoring condition of probation had

to be "reinstated" after a prison term, in concluding that probation was constructively revoked despite

the lack of specific terminology to that effect). In United States v. Townsend, the Eighth Circuit also

did not explicitly address the distinction between modification of supervision versus revocation. 408

F.3d 1020 (8th Cir. 2005). As noted by the Mendezand Guidry dissenters, the cases relied upon by the

majority concern procedures “more in line with the common understanding of ‘revocation’ and thus

dof] not squarely present the difficult issue here.” Mendez, 560 Fed. Appx. at 270, fn. 11

(Higginbotham, J., dissenting).

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In Glover, the defendant was originally sentenced to three years of probation

for a burglary he committed prior to his 18 birthday. 154 F.3d 1292-93. During his

probationary sentence, Glover served two terms of imprisonment. /d. at 1293. His

probation was initially modified, and he was sentenced to 90 days of imprisonment

in lieu of revocation. Following his modification, he violated the terms of his probation

and his probation was subsequently revoked and the court imposed a 364-day term.

Id. Glover argued that these two periods of incarceration should not be aggregated as

one because his 90-day term was a modification of probation rather than a revocation.

The Eleventh Circuit rejected this argument and found that “"§ 4A1.2(k)(1)

contemplates that, in calculating a defendant's total sentence of imprisonment for a

particular offense, the district court will aggregate any term of imprisonment

imposed because of a probation violation with the defendant's original sentence of

imprisonment, if any, for that offense." Glover, 154 F.3d at 1291. However, the

Eleventh Circuit failed to provide any reasoning for treating ‘modification’ the same

as ‘revocation’ despite the lack of procedural safeguards as well as the lack of mention

of modifications in the plain text of the Sentencing Guidelines themselves. Mendez,

560 F. App’x at 271 (Higginbotham, J., dissenting). As noted by the dissent in this

case, while the majority claims Ramirez stands alone, so does the Eleventh Circuit’s

decision to the contrary in Glover. See Guidry, 960 F.3d at 689.

The Ninth Circuit also noted the division amongst the circuits but pointed out

that “only one of the other circuits considering the question has dealt specifically with

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the modification versus actual revocation distinction.” Jd. at 804 (citing Glover, 154

F.3d at 1294-95). The Ramirez court also noted that:

[Nlone of these cases consider, either explicitly or implicitly, the

constitutional requirements for revocation set out in Morrissey. Nor did

any of the courts have the benefit of the usual definition of revocation

articulated by the Supreme Court in Johnson v. United States, [529 U.S.

694, 704 (2000)]. The only rationale provided for their holdings is the

general commentary introducing the Criminal History chapter of the

Guidelines. See Glover, 154 F.3d at 1294; Glidden, 77 F.3d at 40.

Ramirez, 347 F.3d at 805.

Under Ramirez, when a court imposes a temporary detention as an alternative

to revoking probation or parole, that detention cannot be aggregated under §

4A1.2(k). This is clearly the same scenario at issue in Mr. Guidry’s case, as the state

court imposed a 180-day sanction “in lieu of revocation.” As such, the aggregation

clause of § 4A1.2(k) does not permit the 180-day penalty to be added to his original

term of imprisonment and the Fifth Circuit majority failed to provide any compelling

authority to support its decision to the contrary. Considering Ramirez was decided

after Glover and the Ninth Circuit explicitly considered the differences in

modification and revocation of probation, Ramirez presents more persuasive

authority on this issue and the Fifth Circuit’s decision to the contrary was in error.

These disparate results necessitate this Court’s intervention to resolve

whether modification of probation constitutes a revocation for the purposes of §

4A1.2(k). If discretionary ‘Jurisdiction is not exercised, then similarly situated

defendants in different circuits will continue to face incongruous results.

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v. The rule of lenity requires any ambiguity in the guidelines to be resolved

in favor of Damien Guidry.

Although the guidelines clearly provide for aggregation of sentences only when

an actual revocation occurs, the circuit split on this issue demonstrates potential

ambiguity. When a statute contains ambiguity, the rule of lenity requires criminal

statutes, including sentencing provisions, to be interpreted in favor of the accused.

Taylor v. United States, 495 U.S. 575, 596 (1990); United States v. Kaluza, 780 F.3d

647, 669 (5th Cir. 2015).

The rule of lenity further forbids courts from interpreting “a federal criminal

statute so as to increase the penalty that it places on an individual when such an

interpretation can be based on no more than a guess as to what Congress intended."

Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980).

The Fifth and Eleventh Circuits have failed to present any evidence that

Congress intended any violation accompanied by a confinement sanction to be treated

as a revocation for the purposes of § 4A1.2(k). To the extent that any ambiguity exists,

this must be resolved in favor of Damien Guidry.

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CONCLUSION

Petitioner respectfully submits that this Court should grant his petition for a

writ of certiorari.

Respectfully submitted this 31st day of August, 2020.

Alfred stany, Il, La Bar Roll No 329

Counsél of Record for Petitioner Damien Guidry

Boustany Law Firm

421 West Vermilion Street

P.O. Box 4626

Lafayette, LA 70502

(337) 261-0225 (telephone)

(337) 453-4968 (fax)

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