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

No.

Supreme Court of the United States

Damien Guidry,

Petitioner,

Vv.

United States of America,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

INDEX TO APPENDICES

APPENDIX A Opinion of the Fifth Circuit Court of Appeals,

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

APPENDIX B Ruling of the Western District of Louisiana,

Transcript of Sentencing Hearing, April 29, 2019

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Case: 19-30347 Document: 00515441735 Page:1 Date Filed: 06/04/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT — &**S22scostetsrrea

FILED

June 4, 2020

No. 19-380347 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff—Appellee,

versus

DAMIEN GUIDRY,

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

Before SMITH, GRAVES, and HO, Circuit J udges.

JERRY E. SMITH, Circuit Judge:

Damien Guidry pleaded guilty of possession with intent to distribute

marihuana and conspiracy to distribute and possess with intent to distribute

cocaine. He objected to the enhancements in the presentence report (“PSR”)

for obstructing justice and possessing a dangerous weapon during the offense

and to the criminal history points assigned for a conviction of distributing

cocaine. The court overruled the objections, and Guidry appeals. We affirm.

Appendix A

Guidry v. United States, Appendix 1

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I.

A.

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

marihuana to “Sebastian Moore.” Postal inspectors intercepted that package

and obtained a search warrant for its intended destination.

After a postal inspector delivered the package—but before agents could

execute the search warrant—Guidry, Kevin Perkins, and Cody Scott exited the

residence in Guidry’s pickup truck. Agents found the package in the bed of the

truck and a Glock .357 caliber semi-automatic pistol with a round in the

chamber and ten rounds in the magazine in the rear passenger area of Guidry’s

truck. Guidry held one round of .357 caliber ammunition in his pocket. A forensic analysis revealed that the round found in Guidry’s pocket had been

“cycled through the action” of the pistol found in his back seat. Conveniently,

Scott—the only passenger in the truck who did not have a felony conviction—

claimed that Guidry was unaware of the pistol, which was his.

B.

On November 16, 2016, Guidry paid Norman Pattum $1,000 to retrieve

cocaine from Houston. While Pattum was returning to Louisiana in Guidry’s

truck, he was pulled over for a traffic violation. Pattum, who had had a suspended driver’s license and was wanted on a criminal non-support warrant,

consented to a search of the vehicle, which had 1.976 kilograms of cocaine.

That same day, agents obtained and executed a state search warrant on

Guidry’s residence. Guidry was alone, and agents arrested him on a warrant

for a separate narcotics-related offense. His house contained two firearms, four

grams of marihuana, and approximately $3,890.

Guidry v. United States, Appendix 2

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C.

While Guidry was detained on state charges, Pattum started cooperating

with the FBI. Guidry was initially unaware of that and believed that Pattum

had been arrested on a criminal non-support charge.

After Guidry’s arrest, he and Pattum appeared in state court at the same

time for a “72-hour hearing.” At the hearing, the judge advised Guidry that he

had been arrested for possession with intent to distribute cocaine. That blindsided Guidry, who had not personally been found in possession of the drug. He

spoke to Pattum at the hearing and told him to “keep his mouth shut.”

In the ensuing months, Guidry placed hundreds of telephone calls from

jail. He tried to disguise those calls—which were monitored by the facility and

later reviewed by FBI agents—by using other inmates’ PIN numbers.! The

following calls are relevant to whether Guidry obstructed justice:

e November 21, 2016: Guidry complained that Pattum “talks too

much, then when he gets in a jam he’s looking all crazy.” Guidry

also said, “I told that dumbass [Pattum] you talk too much.”

e November 28, 2016: Guidry noted to an associate that “they make

graveyards for anybody, I ain’t tripping.”

e December 7, 2016: Guidry asked the person he called to initiate a

three-way conversation with Kenisha Kelly, Pattum’s cousin.

Guidry then told Kelly that he needed Pattum to tell investigators

that he had previously lied to them.

e December 12, 2016: Guidry told Kelly to “make sure that [Pattum]

ain't gonna testify for no Grand J ury or nothing man.... If [Pattum] done that he is going to get me a federal charge.”

1 Before making a call, inmates must enter their designated PIN. Inmates are warned

that calls are recorded and monitored using those PINs. For that reason, using another

inmate’s PIN is prohibited. Agents noticed that Guidry’s call activity stopped within a week

of arriving at the jail. They researched call destinations and discovered that Guidry was

using other inmates’ PINs. Guidry has a distinctive voice, so agents had little trouble confirming their suspicions. |

Guidry v. United States, Appendix 3

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e February 9, 2017: Guidry spoke to Kelly about possible repercussions for Pattum’s cooperating with authorities. Guidry also

referenced Pattum’s mother; FBI agents later learned that Guidry’s associates attempted to contact her and that others had

attempted to contact Pattum directly.

e February 17, 2017: Guidry boasted to an associate, “I got a cake

baked for that bitch ass [Pattum], he just don’t know.”2

Around the time those calls were placed, Laron Vickers—an associate of

Guidry’s and a convicted drug trafficker—contacted Pattum to determine

whether he was going to testify. Vickers told Pattum to tell investigators that

he had previously lied and to “take his lick.” Vickers also told Pattum that his

criminal conduct could be forwarded to law enforcement. Pattum regarded

that as a threat and notified the FBI. The FBI, taking the threats seriously,

moved Pattum into hiding out of state.

D.

Guidry pleaded guilty of possession with intent to distribute marihuana

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (Count 2) and conspiracy to

distribute and possess with intent to distribute cocaine in violation of 21 U.S.C.

§ 846 (Count 4). Count 2 and Count 4 were grouped together in determining

the applicable offense level under U.S.S.G. § 3D1.2(d). The PSR assigned a

base offense level of 24 under § 2D1.1(c)(8) based on a drug quantity of at least

100 but less than 400 kilograms.? The PSR added two levels for possessing a

dangerous weapon under § 2D1.1(b)(1) and two further levels for obstructing

justice under § 3C1.1. After a three-level reduction for acceptance of

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2 “(Blake a cake” is sometimes used as slang for “[t]o kill or murder.” See Bake a Cake,

URBAN DICTIONARY, https://www.urbandictionary.com/define.php?term=bake%20a%20cake

(last visited Apr. 13, 2020). .

® Guidry had 0.977 kilograms of marihuana and 1.976 kilograms of cocaine. The

cocaine was converted to its marihuana equivalency (395.200 kilograms), producing a total

of 396.177 kilograms of convertedicontrolled substances.

Guidry v. United States, [Appendix 4

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responsibility under § 3E1.1, the net offense level was 25.

Guidry was assessed eight criminal history points for his ten felony and

misdemeanor convictions and two additional points under § 4A1.1(d) for committing the instant offense while on probation. Guidry’s ten criminal history

points translated to Category V, which, with the total offense level of 25, produced an advisory range of 100-125 months. Guidry faced a statutory range

of zero-to-five years on Count 2 and five-to-forty years on Count 4. Because

the applicable guideline range for Count 2 exceeded the statutory maximum,

the statutory maximum served as the guideline under § 5G1.1(a).

The court overruled Guidry’s objections to the enhancements for obstruction of justice and possessing a dangerous weapon and the three criminal history points assigned for his 1997 cocaine distribution conviction, Guidry was

then sentenced, within the guidelines range, to 60 months on Count 2 and 115

months on Count 4, to run concurrently.

IT.

Guidry contends that the court clearly erred by applying two-level

enhancements to his offense level under U.S.S.G. § 8C1.1 for obstruction of

justice and § 2D1.1(b)(1) for possession of a firearm during the commission of

the offense. We review the factual findings of obstructive conduct and firearm

possession for clear error.* “There is no clear error if the district court’s finding

is plausible in light of the record as a whole.” United States v. Serfass, 684 F.3d

548, 550 (5th Cir. 2012). “[I]n determining whether an enhancement applies,

a district court is permitted to draw reasonable inferences from the facts, and

these inferences are fact-findings reviewed for clear error as well.” United

* See United States v. Zamora-Salazar, 860 F.3d 826, 836 (5th Cir. 2017) (obstruction

of justice); United States v. King, 773 F.3d 48, 52 (5th Cir. 2014) (possession of a firearm).

Guidry v. United States, Appendix 5

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States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).

“[A]lthough the guidelines are advisory post-Booker, we must ensure

that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the [g]uidelines range.” United

States v. Richardson, 676 F.3d 491, 508 (5th Cir. 2012) (quotation marks omitted). “When a defendant is sentenced under an incorrect [g]uidelines range—

whether or not the defendant’s ultimate sentence falls within the correct

range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina-Martinez v.

United States, 136 S. Ct. 1838, 1345 (2016).

A.

The sentencing guidelines provide for a two-level enhancement where

“(1) the defendant willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive

conduct related to (A) the defendant’s offense of conviction and any relevant

conduct; or (B) a closely related offense.” U.S.S.G. § 301.1. The commentary

to that provision provides that it applies to “threatening, intimidating, or

otherwise unlawfully influencing a co-defendant, witness, or juror, directly or

indirectly, or attempting to do so.” Id. cmt. n.4(A). But where efforts to destroy

or conceal evidence occur “contemporaneously with arrest,” the enhancement

does not apply unless the defendant’s conduct “result[ed] in a material hin-

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drance to the official investigation or prosecution of the instant offense or the

sentencing of the offender.” ' Id. cmt. n.4(D).

Guidry makes three arguments on appeal. First, he contends that his

jailhouse calls were made contemporaneously with his arrest. The district

Guidry v. United States, Appendix 6

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court determined that Guidry obstructed prosecution in “a number of instances’ but focused on the December 7 and 12 calls, which took place over

three weeks after Guidry was arrested. Because the court correctly concluded

that those calls were not contemporaneous to the arrest, we need not consider

whether Guidry materially hindered the government’s investigation or

prosecution.

Second, Guidry maintains that his comments “were not actual threats

against Pattum and should not be considered an attempted, willful effort to

obstruct justice.” We disagree. The court reasonably inferred that Guidry

attempted to have third parties convince Pattum to recant prior statements

implicating Guidry and to lie to the grand jury. The court’s factual finding is

particularly plausible in light of the recorded calls. Guidry told Pattum’s

cousin to “make sure that [Pattum] ain’t gonna testify for no Grand Jury or

nothing man.” That call, on its own, is enough to withstand clear error review.

Guidry also avers that his “comments” do not constitute a willful effort

to obstruct justice because they were made to a third party. That Guidry arranged for third parties to act on his behalf, however, does not matter. We

have routinely affirmed obstruction enhancements in that situation.5

Finally, Guidry asserts that the district court erred by applying simultaneously an enhancement for obstruction and a reduction for accepting responsibility. That objection also fails. Guidry’s conduct befits the application

of both adjustments, which the guidelines contemplate. His obstructive

5 See, e.g., United States v. Graves, 5 F.3d 1546, 1555-56 (5th Cir. 1993) (affirming

application of the enhancement where the obstruction required a third party to relay the

information); United States v. Searcy, 316 F.3d 550, 553 (5th Cir. 2002) (per curiam) (affirming the enhancement where the obstruction involved a plan to have a third party plant evidence to undermine a witness’s credibility).

6 See U.S.S.G. § 3E1.1, cmt. n.4 (“Conduct resulting in an enhancement under § 3C1.1

Guidry v. United States, Appendix 7

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conduct occurred early in the investigation, before he accepted responsibility

for his actions. The court noted that chronology in granting the § 3E1.1

reduction, stating that the situation presented the “exceptional case given the

time” between his obstruction and acceptance of guilt. The court did not err.

B.

Guidry challenges the two-level enhancement for possessing a dangerous

weapon during the commission of the offense. The guidelines provide for that

enhancement in drug-related cases “[iJf a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). The government has the initial

burden of proving, by a preponderance of the evidence, that “a temporal and

spatial relation existed between the weapon, the drug trafficking activity, and

the defendant,” or, “when another individual involved in the commission of an

offense possessed the weapon, ... that the defendant could have reasonably

foreseen that possession.” United States v. Marquez, 685 F.3d 501, 507 (5th

Cir. 2012). If the government meets its burden, the defendant can avoid application of the enhancement only by showing “it was clearly improbable that the

weapon was connected with the offense.” United States v. Ruiz, 621 F.3d 390,

396 (5th Cir. 2010) (per curiam).

The court rejected Guidry’s objection to the enhancement for possessing

a firearm. It found “by a preponderance of the evidence that the government

has established a temporal and spatial relationship between the weapon],]...

the drug trafficking activity,” and Guidry. The court also rejected Guidry’s

contention that he was unaware of the gun, concluding that the unspent bullet

in his pocket “had to put him on notice of a weapon.” Guidry contends that the

... ordinarily indicates that the defendant has not accepted responsibility for his criminal

conduct. There may, however, be extraordinary cases in which adjustments under both

§§ 8C1.1 and 3E1.1 may apply.”).

Guidry v. United States, /\ppendix 8

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ruling (1) was limited to the gun’s location, (2) did not address his argument

that it was Scott’s gun, and (3) failed to require the government to demonstrate

that he knew Scott had the gun.

First, the court’s findings show that it concluded that the government

established the temporal and spatial relationship among the gun, the narcotics, and Guidry. It was justified in doing so. The gun was within Guidry’s

reach, and he carried a bullet that had been cycled through its chamber. This

court has consistently found sufficient temporal and spatial proximity where

firearms are found in a vehicle with the defendant and the drugs.7

The court was also entitled to discredit Scott’s claim that it was his gun.®

Moreover, even if only Scott possessed the gun, the government showed by a

preponderance of the evidence that Guidry “was on notice of a weapon” because

of the bullet in his pocket.

Finally, Guidry failed to carry his reciprocal burden of establishing that

any connection between the pistol and the marihuana in the truck was “clearly

improbable.”® The pistol was in the rear passenger compartment, within reach

of any of the three occupants. It therefore could have been used to protect those

occupants while transporting the marihuana.!°

7 See, e.g., United States v. Farias, 469 F.3d 393, 399-400 (5th Cir. 2006) (affirming

the enhancement where the firearm was found under the defendant’s seat and methamphetamine was found in the trunk); United States v. dacquinot, 258 F.3d 423, 431 (5th Cir. 2001)

(per curiam) (affirming the enhancement where there were drugs in the truck bed and handguns and ammunition in the cab).

8 See United States v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996) (“Credibility determina-

tions in sentencing hearings are peculiarly within the province of the trier-of-fact.” (quotation

marks omitted)).

° Ruiz, 621 F.3d at 396 (recognizing that once the government sustains its initial bur-

den of showing a temporal and spatial relationship between the weapon and the drug offense,

the burden shifts to the defendant).

10 See Farias, 469 F.3d at 400 (upholding the enhancement where “the gun was found

underneath the seat where [the defendant] had been sitting, near methamphetamine in the

Guidry v. United States, Appendix 9

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III.

Guidry contests the addition of three criminal history points for his 1997

drug offense. Because that challenge hinges on an interpretation of the sen-

tencing guidelines, we review it de novo. United States v. Reyes-Maya,

305 F.3d 362, 366 (5th Cir. 2002).

The guidelines provide for the addition of three points to the criminal

history score “for each prior sentence of imprisonment exceeding one year and

one month.” U.S.S.G. § 4A1.1(a). A 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.” Id.

§ 4A1.2(a). For offenses the defendant committed before turning eighteen,

three points are added “[i]f the defendant was convicted as an adult and re-

ceived a sentence of imprisonment exceeding one year and one month.” Id.

§ 4A1.2(a)(1).

Guidry does not dispute that he was prosecuted as an adult for distributing cocaine when he was seventeen. He pleaded no contest and was sentenced to five years in prison, suspended, and placed on probation for three

years. As a condition of probation, he was ordered to serve one year in the

parish jail, with credit for time served. After Guidry violated conditions of his

probation, the state court ordered him to serve an additional 180 days “in lieu

of revocation.”

In general, a condition of probation requiring imprisonment is allotted

only one point under § 4A1.1(0), but if the condition requires imprisonment of

trunk, on the way to what one of [the defendant’s] passengers later testified was a drug debt

collection,” and the defendant “offered no evidence to rebut the resulting inference”); United

States v. Williams, 588 F. App’x 348, 349 (5th Cir. 2014) (per curiam) (concluding that it was

not “clearly improbable” that a firearm was connected to the offense where the defendant had

a firearm in his vehicle as he drove to a drug transaction).

Guidry v. United States, Appendix 10

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at least 60 days or more, the conviction is assigned points based on the sentence

length under § 4A1.1(a) or (b).!!_ Where a term of imprisonment is imposed

following revocation of probation, parole, or supervised release, that term is

added to the original to compute criminal history points for purposes of

§ 4A1.1(a), (b), or (c). U.S.S.G. § 4A1.2(k)(1).

Guidry contends that the 180 days he served “in lieu of revocation”

should not be added to his initial term under § 4A1.2(a) because his probation

was not modified. He also avers that the 180 days should not be added under

§ 4A1.2(k)(1) because his probation was not revoked. Finally, to the extent the

relevant guidelines are ambiguous, he urges application of the rule of lenity.

None of Guidry’s arguments holds water. His term of imprisonment for

violating probation is necessarily part of “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.” Id. § 4A1.2(a)(1). And neither

§ 4A1.2(k)(1) nor the rule of lenity provides reason to conclude otherwise.

In United States v. Mendez, 560 F. App’x 262, 266-67 (5th Cir. 2014) (per

curiam), this court “interpret[ed] ‘sentence imposed upon adjudication of guilt’

under [§] 4A1.2(a)(1) to include a later modification to the original sentence of

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

confinement.” That is because “the natural interpretation of the words of

[§] 4A1.2(a)(1), that a prior sentence is one ‘previously imposed upon adjudica-

tion of guilt,’ looks to the currently operative sentence for that conviction.”12

1U.S.8.G. § 4A1.2, cmt. n.2; see United States v. Marroquin, 884 F.3d 298, 301 n.1

(5th Cir. 2018) (explaining that “the threshold for two points is 60 days, so. . . 30 days would

count as one point but 119 days would count as two’).

12 Mendez, 560 F. App’x at 267-68 (quoting U.S.S.G. § 4A1.2(a)(1)); see also United

States v. Chavez, 476 F. App’x 786, 789 (5th Cir. 2012) (per curiam) (“Nothing in the applica-

ble [g]uidelines or accompanying commentary indicates that the sentence can only be the one

Guidry v. United States, Appendix 11

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Guidry admitted, at a revocation hearing, that he violated the terms of

probation, and the court imposed an additional 180 days as a modification of

the original term of probation and “in lieu of revocation.” That procedure fully

comported with La. Code Crim. Proc. Ann. art. 896(B), which—like the Texas

law at play in Mendez!3—authorized the court to modify probation.!4

Guidry nevertheless asserts that his probation was not “modified”

because it ended when it was originally set to do so. That argument rests on a

misunderstanding of the Louisiana law on probation modification, which contemplates adding new conditions to probation but not extending the term of

the probation beyond two years.!5 To the extent Guidry asserts that his probation was not “modified”—despite an additional 180-day incarceration—he is

therefore mistaken.

Contrary to Guidry’s contentions—and the unpersuasive dissent in Mendez!6—our interpretation of § 4A1.2(a)(1) does not render § 4A1.2(k)(1) superfluous. Guidry misreads the latter as providing the exclusive means by which

the court can combine separate periods of confinement from a single adjudication of guilt. To the contrary, § 4A1.2(k)(1) serves a different purpose—pre-

venting the court from assigning criminal history points under § 4A1.1(a)-(c)

that was initially pronounced, without inclusion of any later modifications.”).

18 See Mendez, 560 F. App’x at 268 (Under Texas law, the trial judge retained the

power to modify the part of the sentence regarding community supervision,” so “the revised

sentence is the one that was imposed upon, L.é., aS a result of, an adjudication of guilt.”).

14 State v. Wagner, 410 So! 2d 1089, 1090 (La. 1982).

'S See La. CODE CRIM. PROC. ANN. art. 896(B) (permitting the court to “impose additional conditions of probation authorized by Article 895,” which specifies that a term of imprisonment cannot exceed two ye; rs).

16 See Mendez, 560 F. App’x at 269 (Higginbotham, J., dissenting) (“If no ‘aggregation

mechanism’ is needed, as the government urges, § 4A1.2 is an odd statutory scheme indeed:

one that provides for the aggregation of sentences when probation formally is revoked but

also allows courts to aggregate sentences on no authority at all when probation merely is

modified. This reading renders § 4A1.2(k) entirely superfluous.”).

Guidry v. United States, |Appendix 12

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multiple times for the same offense.!7_ To that end, § 4A1.2(k)(1) is intended

to benefit the defendant by limiting to three the criminal history points accumulated for any underlying offense.

Guidry’s reliance on United States v. Ramirez, 347 F.3d 792 (9th Cir.

2003), is also unavailing. That out-of-circuit case is neither binding nor persuasive. As Mendez, 560 F. App’x at 267, noted, “Ramirez stands alone.” By

contrast, at least five other circuits have aggregated terms imposed for pro-

bation violations with “prior sentence[s]” in § 4A1.2(a), regardless of the state

court terminology.!8

Finally, Guidry contends that the purported “circuit split on this issue

demonstrates potential ambiguity,” and “[w]hen a statute contains ambiguity,

the rule of lenity requires criminal statutes, including sentencing provisions,

to be interpreted in favor of the accused.” To the contrary, “[a] statute is not

“1 See U.S.S.G. § 4A1.2, emt. n.11 (“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. By this approach, no more than three points will be assessed for a

single conviction, even if probation or conditional release was subsequently revoked.”).

18 See, e.g., United States v. Townsend, 408 F.3d 1020, 1025-26 (8th Cir. 2005) (rejecting the notion that the court cannot aggregate terms imposed for violating probation

because probation was never “revoked”); United States v. Galvan, 453 F.3d 738, 740-41 (6th

Cir. 2006) (rejecting the contention that a 65-day sentence imposed for a probation violation

should not be aggregated under § 4A1.2(k) because the state court judge did not use the term

“revoked”); United States v. Glover, 154 F.3d 1291, 1294 (11th Cir. 1998) (“We agree with the

Second and Seventh Circuits 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.”); United States v. Reed, 94 F.3d

341, 344 (7th Cir. 1996) (aggregating time served for violating conditions of probation because

§ 4A1.2(k) “is designed to benefit the defendant by limiting the number of criminal history

points that may be assigned to a single conviction (three), even if the defendant served multiple prison sentences on that conviction due to violations of his probation”); United States v.

Glidden, 77 F.3d 38, 39-40 (2d Cir. 1996) (per curiam) (aggregating two discrete terms of

imprisonment for probation violations under § 4A1.2(k), even though the defendant had his

probation “revoked” only the second time).

Guidry v. United States, Appendix 13

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ambiguous for purposes of lenity merely because there is a division of judicial

authority over its proper construction.” Reno v. Koray, 515 U.S. 50, 64-65

(1995) (quotation marks omitted). “The rule of lenity applies only if, after seizing everything from which aid can be derived, we can make no more than a

guess as to what Congress intended.” Id. at 65 (quotation marks and citation

omitted). Because there is no ambiguity, the rule of lenity does not apply.

AFFIRMED.

Guidry v. United States, Appendix 14

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JAMES E. GRAVES, JR., Circuit Judge, concurring in part and dissenting in

part:

I concur in Sections I and II of the majority opinion. I otherwise respectfully

dissent for the reasons below.

When he was seventeen, Damien Guidry was prosecuted as an adult for

a 1997 Louisiana drug offense. He pleaded no contest and was subsequently

sentenced to five years in prison and placed on probation for three years. His

sentence of imprisonment was fully suspended; however, he was ordered to

Serve one year in a Louisiana parish jail as a condition of probation.! The state

court ordered Guidry to serve an additional 180 days in the parish jail “in lieu

of revocation” after he violated conditions of his probation.

Guidry argues that the district court’s addition of three criminal history

points for this drug offense was in error.? I agree. “This court reviews a district

court's interpretation and application of [the sentencing guidelines] . . . de

1 Guidry received credit for time served for both the one-year and 180-days parish jail

probation terms. “[FJor the purposes of Guidelines criminal history calculation, it matters

not whether a defendant’s sentence included credit for time served presentence.” United

States v. Galvan, 453 F.3d 738, 741 (6th Cir. 2006) (collecting cases); cf, e.g., United States

u. Carlile, 884 F.3d 554, 558 (5th Cir. 2018) (“We agree with the Sixth Circuit that ‘{clold

reality informs us that a defendant who received full credit for time served on an entirely

Separate conviction does not in fact actually serve any time for the offense in question.”)

(quoting United States v. Hall, 531 F.3d 414, 419 (6th Cir. 2008) (internal quotation marks

omitted)). Here, Guidry admits he received time served for his one-year probation term based

on “time he spent in pretrial detention awaiting resolution of his case.” It is not clear,

however, on what ground he received time served for his 180-days probation term. But

Guidry concedes that he spent 142 days in parish jail as a result of the term, meaning that

he had received at most 38 days in time served. If we were to aggregate the two terms, even

subtracting 38 days from the 180-days term, Guidry would have a “prior sentence of

imprisonment exceeding one year and one month” for purposes of calculating his criminal

history score under the sentencing guidelines. U.S.S.G. § 4A1.1(a). As explained infra,

however, I disagree with the majority opinion that these two terms should be aggregated.

2 Based on a total offense level of 25 and a criminal history category of V, Guidry’s

relevant sentencing guideline range was 100-125 months. If the district court erred in

calculating Guidry’s criminal history category by one to three points, then Guidry would have

a criminal history category of IV and a sentencing range of 84-105 months. U.S.S.G. ch. 5,

pt. A (sentencing table). :

Guidry v. United States, Appendix 15

Case: 19-30347 Document: 00515441735 Page: 16 Date Filed: 06/04/2020

|

novo.” United States v. Stanford, 883 F.3d 500, 505 (5th Cir. 2018). In

interpreting the sentencing guidelines, “typical rules of statutory interpretation

are utilized.” Id. at 511.

As the majority opinion notes, the sentencing guidelines provide for the

addition of three points to a defendant’s criminal history score “for each prior

sentence of imprisonment exceeding one year and one month.” U.S.S.G. §

4A1.1(a). A 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.” Id. § 4A1.2(a)(1). For offenses a

defendant committed before turning eighteen, three points are added “[i]f the

defendant was convicted as an adult and received a sentence of imprisonment

exceeding one year and one month.” Id. § 4A1.2(d)(1).

“In the case of a prior revocation of probation, parole, supervised release,

special parole, or mandatory release, [the district court must] add the original

term of imprisonment to any term of imprisonment imposed upon revocation.” Id.

§ 4A1.2(k)(1). “The resulting total is used to compute the criminal history points

for § 4A1.1(a), (b), or (c), as applicable.”3 Id.

I agree with the majority opinion that Guidry’s probation was modified.

See LA. CODE CRIM PROC. ANN. ART. 896(B); State v. Wagner, 410 So.2d 1089,

1090 (La. 1982). Nonetheless, the majority opinion’s reliance on this court’s

unpublished opinion in United States v. Mendez is mistaken. 560 F. App’x 262

(5th Cir. 2014) (per curiam). The majority opinion in Mendez “interpret/ed]

‘sentence imposed upon adjudication of guilt’ under [§] 4A1.2(A)(1) to include

a later modification to the original sentence of community supervision, even

5 Under § 4A1.1(a), three criminal history points are added for “each prior sentence of

imprisonment exceeding one year'and one month.” Under § 4A1.1(b), two criminal history

points are added for “each prior sentence of imprisonment of at least sixty days not counted

in (a).” Under § 4A1.1(0), one criminal history point is added for “each prior sentence not

counted in (a) or (b)[.]” |

Guidry v. United States, Appendix 16

Case: 19-30347 Document: 00515441735 Page: 17 Date Filed: 06/04/2020

when the revised sentence included a period of confinement,” because “the

natural interpretation of the words of [§] 4A1.2(a)(1), that a prior sentence is

one ‘previously imposed upon adjudication of guilt,’ looks to the currently

operative sentence for that conviction.” Jd. at 266-67. This reading essentially

disregards the requirements for aggregation under § 4A1.2(k) and relies on §

4A1.2(a)(1), “a generic provision that Says nothing about aggregation and

simply defines ‘prior sentence’ to mean ‘any sentence previously imposed upon

adjudication of guilt.” Jd. at 269 (Higginbotham, J., dissenting). In other

words, the majority opinion holds that “a specific provision for the aggregation

of sentences if and when probation has been revoked is of no moment.” Id.

(Higginbotham, J., dissenting). But “the provision in the [sentencing

guidelines section] 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—must be read

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

sentence previously imposed upon adjudication of guilt.” Jd. (Higginbotham,

J., dissenting). To do otherwise is to stray from “our longstanding practice of

construing statutes in pari materia[.J’ Id. (Higginbotham, J., dissenting)

(quoting Crawford Fitting Co. v. J.T Gibbons, Inc., 482 U.S. 437, 445 (1987));

see also Hinck v. United States, 550 U.S. 501, 506 (2007) (stating that “a

precisely drawn, detailed statute preempts more general remedies”) (internal

quotation marks and citation omitted); Crawford Fitting Co., 482 U.S. at 445

(“As always, where there is no clear intention otherwise, a specific statute will

not be controlled or nullified by a general one, regardless of the priority of

enactment.”) (internal quotation marks, brackets, and citations omitted)

(emphasis in original).

Further, as Judge Higginbotham noted in dissent, “[t]he meaningful

differences between ‘modification’ and ‘revocation’ are not lightly dismissed by

Guidry v. United States, hppendx 17

Case: 19-30347 Document: 00515441735 Page:18 Date Filed: 06/04/2020

district court judges, and should not be by this Court. Revocation is a very

different procedure than modification, a distinction appreciated by the

Sentencing Guidelines themselves.” Id. at 269 (Higginbotham, J., dissenting)

(citing U.S.S.G. § 7B1.3). “Before a revocation of parole or probation can occur,

the Constitution weighs in, requiring that there 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.” Jd. (Higginbotham, J., dissenting) (citing Morrissey v. Brewer, 408

US. 471, 479-80 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)

(extending requirements of Morrissey to probation revocation hearings)).

A probationer is owed procedural safeguards to ensure that the

consequences of revocation are not imposed without due process. These

safeguards include written notice of the claimed violations of probation;

disclosure of the evidence against the probationer; 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; 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.

Section 4A1.2(k) explicitly requires the “more serious sanction of

revocation be imposed before two sentences can be aggregated|[.|” Mendez, 560

F. App’x at 270 (Higginbotham, J .. dissenting). Nonetheless, the majority

Opinion does not contend that Louisiana’s procedures for probation revocation

also apply to modifications: under Louisiana law or that the procedures

relevant to modifications comply with the due process requirements applicable

to probation revocations. Compare LA. CODE CRIM PROC. ANN. ART. 896(B)

(stating that “[t]he court may, at any time during the probation period, impose

Guidry v. United States, Appendix 18

Case: 19-30347 Document: 00515441735 Page: 19 Date Filed: 06/04/2020

additional conditions of probation . . . without a contradictory hearing with the

state”) and LA. CODE CRIM PROC. ANN. ART. 896(A) (allowing for modification of

probation conditions “at any time during the probation period” when “[t]he state

has previously provided written verification that it has no opposition to a

modification”) with LA. CODE CRIM Proc. ANN. ART. 900 (discussing procedures

relevant to probation revocation). I am unaware of authority which suggests that

Louisiana applies the due process protections required for probation revocations

to mere modifications of the same. Cf. Mendez, 560 F. App’x at 270

(Higginbotham, J, dissenting) (finding no authority suggesting Texas extends due

process protections outlined in Morrissey to modifications of community

supervision).

As in the Mendez dissent, I find the reasoning of the Ninth Circuit in

United States v. Ramirez, 347 F.3d 792 (9th Cir. 2003), convincing “insofar as

it held that modification cannot serve as revocation of probation to aggregate

sentences under § 4A1.2(k).” Mendez, 560 F. App’x at 270 (Higginbotham, J.,

dissenting). While the majority in Mendez, as the majority here, stated that

the decision in Ramirez “stands alone,” so does the Eleventh Circuit’s decision

to the contrary in United States v. Glover, 154 F.3d 1291 (11th Cir. 1998).4

“But the Eleventh Circuit’s reasoning is unpersuasive insofar as it fails to

* The majority opinion states that “at least five other circuits have aggregated terms

imposed for probation violations with ‘prior sentence{(s]’ in § 4A1.2(a), regardless of the state

court terminology.” Four of the decisions it cites were relied on by the Mendez majority. See

Mendez, 560 F. App’x at 267 (“Our research reveals that all other circuits to address the

question have interpreted the phrase ‘revocation of probation’ broadly enough to apply to

terms of imprisonment that were not imposed through formal revocation proceedings.” (citing

United States v. Galvan, 453 F.3d 738, 741 (6th Cir. 2006); Glover, 154 F.3d at 1295-96;

United States v. Reed, 94 F.3d 341, 346 (7th Cir. 1996); United States v. Glidden, 77 F.3d 38,

40 (2d Cir. 1996))). But “[o]f the four cases cited by the majority opinion [in Mendez], only

Glover explicitly addressed the modification versus revocation distinction that troubles us

here.” Jd. at 271 n.11 (Higginbotham, J., dissenting). The majority opinion here also cites

United States v. Townsend, but the Eighth Circuit’s decision in that case—like all the other

decisions cited but Glover—does not explicitly address the modification versus revocation

distinction. 408 F.3d 1020 (8th Cir. 2005).

Guidry v. United States, ppendix 19

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|

provide a compelling justification for departing from the plain text

requirement of ‘revocation’ in § 4A1.2(k) and the distinctions drawn

elsewhere—by Due Process as articulated in Morrissey, by district judges, and

by the Sentencing Guidelines themselves—between modification and

revocation.” Mendez, 560 F. App’x at 271 (Higginbotham, J., dissenting).

Thus, while I concur in Sections I and II of the majority opinion, I

otherwise respectfully dissent.

Guidry v. United States, Appendix 20

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

UNITED STATES OF AMERICA, : Docket No. 17-00040

Plaintiff, :

vs. : April 29, 2019

DAMIEN GUIDRY,

Defendant. : Lafayette, Louisiana

REPORTER'S OFFICIAL TRANSCRIPT OF THE SENTENCING HEARING

BEFORE THE HONORABLE ROBERT R. SUMMERHAYS

UNITED STATES DISTRICT JUDGE

APPEARANCES :

FOR THE PLAINTIFF: JOHN LUKE WALKER

United States Attorney's Office

800 Lafayette Street, Ste. 2200

Lafayette, LA 70501

FOR THE DEFENDANT: ALFRED F. BOUSTANY, II

Boustany Law Firm

P.O. Box 4626

Lafayette, LA 70502

LARAF E. BOURQUE, RMR, CRR

Federal Official Court Reporter

800 Lafayette Street, Ste. 3103

Lafayette, LA 70501

| Appendix B

Guidry v. United States, Appendix 21

INDEX

WITNESSES:

KYLE GREENWOOD

Guidry v. United States, ppendix

22

o Oo ND WD OO BP W HB FF

MO NM NHN NO HB NY BP FP BH BP BP BP BP BP BP BEB

oO pm WHO FE OO WH) Oa WD OD Ww WHY FF OO

PROCEEDINGS

(Call to order of the court.)

THE COURT: Good afternoon.

MR. WALKER: Good afternoon, Your Honor.

THE COURT: This case is the United States of America

vs. Damien Guidry, Criminal Action Number 2:17-00040.

Counsel, will you please make your appearances for the

record.

MR. WALKER: Luke Walker on behalf of the

United States. |

MR. BOUSTANY: Alfred Boustany representing

Damien Guidry, the defendant.

THE COURT: And we have Mr. Guidry here.

MR. BOUSTANY: Yes.

THE COURT: Are the defendant and defense counsel ready

to proceed?

MR. BOUSTANY: We are, Your Honor.

THE COURT: Is the U.S. Attorney ready to proceed?

MR. WALKER: We are, Your Honor.

THE COURT: Okay. This matter is before the Court on

sentencing.

Is there any reason why sentence should not be imposed

at this time? |

MR. WALKER: None, Your Honor.

MR. BOUSTANY: None other than addressing the

Guidry v. United States,| Appendix 23

o CO HN WD ONO BP W HY &

NN NM NO FF FP FP BP RP BP Be Bp BP BE

oe ODO PFS GEE REE BRE B

objections we made to the presentence report.

THE COURT: Absolutely.

Is there any reason -—- let me back up a bit.

Have the defendant and defense counsel received a copy

of the presentence investigation report and the addendum thereto?

MR. BOUSTANY: Yes, we have, Your Honor.

THE COURT: Has the defendant had the Opportunity to

discuss the presentence report with defense counsel?

MR. BOUSTANY: Yes, he has.

THE COURT: Okay. Before we move into the defendant's

objections, I would like to put on the record that I hereby

accept those portions of the presentence investigation report

which are not in dispute as my findings of fact in connection

with sentencing.

With regard to the objections, I have thoroughly

reviewed all of the defendant's objections to the presentence

report. I would like to take them up one by one.

Objection Number 1. This is an objection to the

original presentence report as well as carried over to the

revised presentence report. The defendant first objects to the

two-point adjustment to his offense level pursuant to

Section 3Cl.1 of the sentencing guidelines for obstruction of

justice. In response to that objection, the probation office

issued a revised PSR setting forth additional information

obtained from the FBI's 302 reports.

|

|

Guidry v. United States, Appendix 24

mo Oo IN DD ONO BFP W DY FE

NO NO NO fF FP FP RP RP EF FP FP FF

5

Let me ask, do counsel wish to make any oral argument

on these objections? Do you wish to proffer or move for an

evidentiary hearing?

MR. WALKER: Your Honor, it was our intent, if the

Court intends to —- it was our intent to put on a witness to

further testify about that objection.

THE COURT: Okay. Mr. Boustany?

MR. BOUSTANY: Also with respect to that, over the

weekend, Your Honor, I submitted the defendant's affidavit. I

filed it electronically and sent a copy to the prosecutor by

email. I was able to speak with Damien Guidry actually Saturday

to clarify some of the issues on that, and I -—- I don't know if

the Court has gotten it, but it has been filed electronically. I

think it's sealed as a matter of policy.

THE COURT: I have reviewed that. Luckily, I did some

work on this over the weekend and I saw that it had been filed on

Saturday when I reviewed it on Sunday. A heads up would be

helpful to ensure because I can't say that I will always be

reviewing a matter the Sunday before a Monday sentencing.

MR. BOUSTANY: No. I understand that. .

THE COURT: I have reviewed it, though, and considered

it. |

MR. BOUSTANY: Yes. As far as with respect to the

government, if they wish to present something, I mean, I guess we

can —--

Guidry v. United States, opens 25

o OO I HD OO fF W HY FF

NM NHN NY NYO NYO F FP KR BP BP PP BP PP BP Bb

se oe *F 8 CER aEGRE GOA KR ES

THE COURT: Yeah. Mr. Boustany, I've reviewed all of

your sentencing memoranda. I've reviewed your authorities. I've

reviewed the original -- or the PSR, their summary of the

conversations on this objection. I've reviewed the transcript

that was provided and I've listened to the recordings.

So how we're going to proceed, if Mr. Walker has a

witness, we'll just go ahead and proceed with that witness.

Mr. Walker, you may call your witness.

MR. WALKER: Your Honor, the United States would call

Kyle Greenwood to the stand.

THE COURT: The witness will approach and be sworn in.

THE COURTROOM DEPUTY: Please raise your right hand.

Do you solemnly swear that the testimony you will give

in this case will be the truth, the whole truth, and nothing but

the truth, so help you God?

THE WITNESS: I do.

THE COURTROOM DEPUTY: Thank you.

THE COURT: Mr. Walker, you may proceed.

MR. WALKER: Thank you, Your Honor.

Whereupon,

KYLE GREENWOOD

was called as a witness; after having been first duly sworn, was

examined and testified as follows:

DIRECT EXAMINATION

BY MR. WALKER:

|

Guidry v. United saa Appendix 26

o CO YN DD ONO S&F W HM F&

NN NM NY FP FP YF BP BB BP Bp Bp ip

Oo of oO 8 rF OO OD I DO B WHS BF O

Q Would you tell me your name.

A Kyle Greenwood.

Q Where are you employed?

A I'm a special agent with the FBI.

Q And are you the case agent on United States vs.

Damien Guidry?

A Yes, sir.

Q In connection with that case, have you had occasion to

listen to recorded jail conversations between Damien Guidry and

other associates?

A Yes, I have.

Q Were there many of those calls?

A Yes, sir.

Q Were those calls made after he was arrested on the charges

that led to his federal conviction?

A Yes, sir.

Q Did you have occasion to create transcripts of portions of

those calls?

A Yes, Sir, I did.

Q And did you also have occasion to create audio —- did you

create an audio disc of a portion of those calls?

A Yes, sir. |

MR. WALKER: May I approach the witness, Your Honor?

THE COURT: You may approach.

MR. WALKER: I'm going to place three exhibits in front

Guidry v. United States, Appendix 27

mo oO HN HD OO SP W DY FF

NH NM DM NY FF BF FP BP BP Pe Be BP BE

oof O NE OO & & I DO oO ® W DH F OC

of you. That way I won't have to come back again.

THE WITNESS: Okay.

MR. WALKER: And, Your Honor, as the Court is aware,

I've provided all of these to both the Court as well as the

defense.

BY MR. WALKER:

Q Do you see before you United States Exhibit 1?

A I do.

Q Are those transcripts of the telephone calls that were the

subject of the obstruction objection?

A Yes, sir.

MR. WALKER: Your Honor, I would offer into evidence

United States Exhibit 1.

THE COURT: Mr. Boustany?

MR. BOUSTANY: We don't have any objection to the

offering, but our understanding is that these are taken from

longer conversations over a long period of time. So these are

just excerpts from what were longer conversations.

So, I mean, I think the Court can consider largely much

of almost anything in terms of sentencing, so to that extent we

can't really legitimately object to it. We do have some concerns

about placing them in context.

THE COURT:, Yeah. And I will —- with those comments,

the Court will admit the exhibit. Of course, Mr. Boustany, if

you believe that any of these portions or excerpts are misleading

Guidry v. United States, — 28

oOo OO HN WD OO FSF W NO FF

NM NM NB NYO FF BP BP BP RP BP Be Be Be BE

oe ODE SEE ORE EB EES

or need the proper context, you're free to place them in context

by asking that additional portions of the recording be put into

evidence or pointing that out to the Court. I mean, we're at

sentencing. You can point that out to the Court. The Court is

the one that's going to make the decision here.

It's admitted.

MR. WALKER: Thank you.

BY MR. WALKER:

Q And is United States Exhibit 1A before you a compact disc

that has audio versions of those recordings that you've

transcribed?

A Yes, Sir. And those conversations, those are the entire

conversations.

MR. WALKER: And, Your Honor, the United States would

introduce into evidence United States Exhibit 1A, the CD.

MR. BOUSTANY: No objection other than what we

previously commented, Your Honor.

THE COURT: And the Court will admit it under the same

condition.

BY MR. WALKER:

Q Prior to being aware that Mr. Pattum was cooperating ——

first of all, in connection with the case for which the defendant

pled guilty, was there a cooperating witness?

A Yes. |

Q And is his last name Pattum?

Guidry v. United States,| Appendix 29

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