Petition for Writ of Certiorari — Thomas Javion Guerrant, Petitioner v. United States

Supreme Court briefJul 7, 2021

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APPENDIX

TABLE OF CONTENTS

Appendix Page

Appendix A: Opinion of the U.S. Court of Appeals for the Fourth

Circuit ...................................................................................................... 1a

Appendix B, Transcript of Mr. Guerrant’s Sentencing Hearing Held in

the United States District Court for the Western District of Virginia .. 6a

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-4358

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

THOMAS JAVION GUERRANT,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at

Roanoke. Elizabeth Kay Dillon, District Judge. (7:19-cr-00039-EKD-1)

Submitted: March 23, 2021

Decided: March 26, 2021

Before THACKER, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Juval O. Scott, Jr., Federal Public Defender, Randy V. Cargill, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for

Appellant. Daniel P. Bubar, Acting United States Attorney, Jean B. Hudson, Assistant

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Pet. App. 1a

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PER CURIAM:

Thomas Javion Guerrant appeals his conviction and 120-month sentence imposed

following his guilty plea to felony distribution of heroin, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C), and misdemeanor assaulting, resisting, or impeding a federal law

enforcement officer, in violation of 18 U.S.C. §111(a), (b). Guerrant argues that the district

court erroneously sentenced him as a career offender under U.S. Sentencing Guidelines

Manual §§ 4B1.1, 4B1.2 (2020), because his prior conviction for violation of Va. Code

Ann. § 18.2-248.1 (2018) does not qualify as a predicate controlled substance offense,

thereby rendering his sentence procedurally unreasonable. We affirm.

We review de novo a district court’s determination that a defendant’s prior

conviction qualifies as a career offender predicate. United States v. Ward, 972 F.3d 364,

368 (4th Cir. 2020). To be classified as a career offender under USSG § 4B1.1, a defendant

must, among other factors, have sustained “at least two prior felony convictions of either a

crime of violence or a controlled substance offense.” USSG § 4B1.1(a). A “controlled

substance offense” is “an offense under federal or state law, punishable by imprisonment

for a term exceeding one year, that prohibits the manufacture, import, export, distribution,

or dispensing of a controlled substance . . . or the possession of a controlled substance . . .

with intent to manufacture, import, export, distribute, or dispense.” USSG § 4B1.2(b).

When determining whether a prior conviction triggers a career offender

enhancement, we employ the categorical approach, “focus[ing] on the elements of the prior

offense rather than the conduct underlying the conviction.” United States v. Dozier, 848

F.3d 180, 183 (4th Cir. 2017) (internal quotation marks omitted). “This approach is

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categorical in that we ask whether the offense of conviction—no matter the defendant's

specific conduct—necessarily falls within the Guidelines’ description of a “‘controlled

substance offense.’” Ward, 972 F.3d at 368. “This approach is altered for ‘divisible’

statutes, statutes that ‘list elements in the alternative[ ] and thereby define multiple

crimes.’” Dozier, 848 F.3d at 183 (quoting Mathis v. United States, 136 S. Ct. 2243, 2249

(2016)). “In such circumstances, the sentencing court may apply the modified categorical

approach and consult ‘a limited class of documents’—otherwise known as Shepard

documents—‘to determine what crime, with what elements, a defendant was convicted

of.’” Id. (citation omitted).

Virginia law makes it unlawful to “sell, give, distribute or possess with intent to sell,

give or distribute marijuana.” Va. Code Ann. § 18.2-248.1. In 2018, when Guerrant was

convicted of the offense, the statute listed a misdemeanor offense in subsection (1), and

two different felony offenses in subsections (2) and (3), each requiring increasing quantities

of marijuana:

(a)

Any person who violates this section with respect to:

(1)

Not more than one-half ounce of marijuana is guilty of a Class 1

misdemeanor;

(2)

More than one-half ounce but not more than five pounds of marijuana

is guilty of a Class 5 felony;

(3)

More than five pounds of marijuana is guilty of a felony punishable

by imprisonment of not less than five nor more than 30 years.

Va. Code Ann. § 18.2-248.1(a)(1)-(3). The parties do not dispute that the Virginia statute

is divisible as the quantity of marijuana is an element of the offense. See Brown v.

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Commonwealth, 690 S.E.2d 301, 303 (Va. Ct. App. 2010) (stating that “proof that the

accused possessed the weight of marijuana proscribed by Code §18.2-248.1(a)(2) is an

essential element of that offense.” (internal quotation marks omitted)). Applying the

modified categorical approach, the parties also do not dispute that the 2018 indictment

shows Guerrant was convicted of a Class 5 felony, * an offense under Virginia law

punishable by a penalty exceeding one year and involving the possession with intent to

distribute marijuana.

Guerrant argues that the Virginia definition of marijuana was broader than the

federal definition under the Controlled Substances Act. Compare Va. Code Ann. § 18.2247D (2018) with 21 U.S.C. § 802(16). More specifically, he argues that, under the

categorical approach, if he were convicted of an offense involving parts of the marijuana

plant not covered under the federal definition, his offense does not categorically qualify as

a “controlled substance offense” under USSG §§ 4B1.1, 4B1.2. The district court reasoned

that the definition of a controlled substance offense under § 4B1.2(b), unlike other

Guidelines sections, does not cross-reference the Controlled Substances Act. Applying the

plain-meaning approach used in United States v. Mills, 485 F.3d 219 (4th Cir. 2007), the

district court found that Guerrant’s marijuana conviction was a controlled substance

A Class 5 felony is punishable by “a term of imprisonment of not less than one

year nor more than 10 years, or in the discretion of the jury or the court trying the case

without a jury, confinement in jail for not more than 12 months.” Va. Code Ann. § 18.210(e) (2018). Guerrant’s order of conviction reflects a two-year term of incarceration,

which corresponds to the Class 5 felony under § 18.2-248.1(a)(2).

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offense under state law, and therefore qualified as a predicate offense of the career offender

enhancement.

In United States v. Ward, we held that the plain meaning of § 4B1.2(b) states that a

predicate offense “arises under either federal or state law,” and it is unnecessary to consider

whether the state law definition of a “controlled substance” is analogous to its federal

counterpart. 972 F.3d at 371-72. Applying Ward, we conclude that the district court did

not err in finding that Guerrant’s Virginia conviction for possession of marijuana with

intent to distribute in violation of Va. Code Ann. § 18.2-248.1 was a controlled substance

offense as defined by USSG §§ 4B1.1, 4B1.2. Therefore, the district court did not err in

applying the career offender enhancement, and we conclude that Guerrant’s sentence is

procedurally reasonable.

Accordingly, we affirm the criminal judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED

Pet. App. 5a

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

* * * * * * * * * * * * * * *

UNITED STATES OF AMERICA,

* CRIMINAL NO. 7:19-CR-00039

* JUNE 29, 2020

9:35 A.M.

Plaintiff,

* SENTENCING

* VOLUME I OF I

vs.

THOMAS JAVION GUERRANT,

* Before:

* HONORABLE ELIZABETH K. DILLON

Defendant.

* UNITED STATES DISTRICT JUDGE

* * * * * * * * * * * * * * * WESTERN DISTRICT OF VIRGINIA

APPEARANCES:

For the Plaintiff:

R. ANDREW BASSFORD, ESQUIRE

United States Attorney's Office

BB&T Building

310 First Street, S.W., Room 906

Roanoke, VA 24008

For the Defendant:

RANDY V. CARGILL, ESQUIRE

Federal Public Defender

Western District of Virginia

210 First Street, S.W., Suite 400

Roanoke, VA 24011

Court Reporter:

Judy K. Webb, RPR

210 Franklin Road, S.W., Room 540

Roanoke, Virginia 24011

(540)857-5100 Ext. 5333

Proceedings recorded by mechanical stenography,

transcript produced by computer.

Pet. App. 6a

U.S.A. v. Guerrant - 6/29/20

(Court convened at 9:35 a.m.)

THE COURT:

Good morning, everyone.

Nice to see your

smiling eyes.

Ms. Davis, if you would call our case, please.

THE CLERK:

United States of America versus Thomas

Javion Guerrant, Criminal Action Number 7:19CR39.

THE COURT:

We are here for two purposes today.

The

first is for the Court to make a formal announcement as to

whether it accepts the defendant's plea agreement which was

previously taken under advisement, and the second is for the

sentencing hearing.

Mr. Bassford, is the United States ready to proceed?

MR. BASSFORD:

THE COURT:

Yes, Your Honor.

Mr. Cargill, is Mr. Guerrant ready to

proceed?

MR. CARGILL:

THE COURT:

Yes, Your Honor.

Mr. Guerrant, at your change of plea

hearing -- well, first let me say that I would ask everyone

just remain seated at counsel table, speak into the

microphones.

remain seated, it's easier to speak into the microphone.

And, Mr. Guerrant, you may remain seated also.

Now, at your change of plea hearing, you pled guilty

That way we're not sharing a podium.

If you

and I accepted your guilty plea and adjudged you guilty of

Count One and the lesser-included offense of Count Two.

Pet. App. 7a

U.S.A. v. Guerrant - 6/29/20

told you at that time I was going to wait to formally accept

or reject your plea agreement until after that presentence

investigation report.

And with regard specifically to the agreement to

dismiss the remaining counts, the Court does find that

accepting the agreement will not undermine the statutory

purposes of sentencing or the sentencing guidelines because

the counts to which you pled guilty adequately reflect the

seriousness of the offense behavior.

Three and Four, the assault charges, and Count Five,

possession with intent to distribute heroin, are adequately

reflected in Counts One and Two.

Specifically, Counts

So having reviewed the presentence investigation

report, I will accept the plea agreement with the government

and conclude that it's reasonable and mutually beneficial for

both the defendant and the government.

sentencing portion of this hearing.

And we can begin the

Mr. Guerrant, at the time of your plea, you told me

you were satisfied with your counsel's representation of you.

Do you remain fully satisfied with his advice and

representation?

THE DEFENDANT:

THE COURT:

Yes, ma'am.

All right.

And I've reviewed the PSR and

the sentencing memos.

And does either party have any other

documents or correspondence for the Court?

Pet. App. 8a

U.S.A. v. Guerrant - 6/29/20

MR. BASSFORD:

Not from the government, Your Honor.

MR. CARGILL:

Likewise, Your Honor.

THE COURT:

All right.

Has each side had an adequate

opportunity to review the presentence investigation report,

including the addendum with the proposed conditions?

MR. BASSFORD:

Yes, Your Honor.

MR. CARGILL:

Yes, Your Honor.

THE COURT:

Mr. Guerrant, Mr. Cargill?

And have you gone over that with

MR. CARGILL:

THE COURT:

MR. CARGILL:

THE COURT:

I have, yes, Your Honor.

Including the proposed conditions?

Yes, Your Honor.

All right.

The report indicates that, if

the government moves at sentencing, Mr. Guerrant would be

entitled to an additional one-level reduction for acceptance.

Does the government make that motion?

MR. BASSFORD:

THE COURT:

Yes, Your Honor.

I will grant that motion and decrease the

offense level by a total of three based on acceptance.

And I do understand there is an objection with regard

to the career offender status.

Mr. Cargill, were there any objections to the

proposed conditions of supervised release?

MR. CARGILL:

THE COURT:

No, Your Honor.

All right.

Any evidence either side

Pet. App. 9a

U.S.A. v. Guerrant - 6/29/20

wishes to present with regard to the objections?

Mr. Cargill?

MR. CARGILL:

THE COURT:

MR. BASSFORD:

Mr. Bassford?

No, Your Honor.

I think it's a legal

issue.

No evidence, Your Honor.

THE COURT:

All right.

Then I'll be glad to hear any

argument.

Mr. Cargill.

MR. CARGILL:

Your Honor, good morning.

I'm going to

largely rely on the written submissions, both the initial

objection and my reply to the government's response to the

objection.

squarely been decided by the Fourth Circuit.

It's an unusual issue, one that I don't think has

I think it's clear that the Virginia definition of

marijuana is broader than the federal definition of that term,

and the question is whether that matters for purposes of the

career offender enhancement under 4B1.2.

government says it does not.

We say it does; the

I cite -- I think the leading case is the Second

Circuit case in Townsend, and I commend that case to you, Your

Honor.

painstakingly, and I dare say convincingly makes the point

that where the state statute in that case criminalizes

something that's not included in the federal controlled

I believe that the Court went through the issue

Pet. App. 10a

U.S.A. v. Guerrant - 6/29/20

substances act, it's not properly considered a predicate

conviction for purposes of the career offender guideline

section.

than the federal definition.

been, and I think the Court has to necessarily conclude that

he was, convicted of an offense under Virginia law that was

not an offense under federal law and that, therefore, this

conviction should not count as a predicate under the career

offender guideline section.

THE COURT:

And here Virginia defines marijuana more broadly

And so Mr. Guerrant could have

Thank you, Mr. Cargill.

And I read

everything you filed thoroughly, and I looked at those cases,

so I appreciate it.

Mr. Cargill, you have a way of always bringing

something new to my attention, but you do so in a very

thorough way, which I appreciate.

Mr. Bassford, and you have a way of thoroughly

rebutting what he brings to my attention.

MR. BASSFORD:

Your Honor, it really is a fascinating

issue.

I think it narrows down to, you know, the definition

of marijuana and whether the breadth of that definition

matters.

irrelevant given the wording of the career offender statute,

because everything else, armed career criminal, immigration,

it refers back to the federal schedules.

does not, and it does use the words "or state."

And I think that it does not.

Pet. App. 11a

I think it is

But career offender

And that's

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got to have some meaning.

And then we walk through Shular from the Supreme

Court, Bah v. Barr, Cucalon v. Barr, all of which were decided

after Mr. Cargill filed his initial objection.

those talk about, you know, elements and Virginia statute

being divisible, and the elements, of course, being determined

by what the state thinks the elements are.

of landscape.

And all of

So that's the kind

I'm sort of disappointed with the Fourth Circuit for

refusing to decide Ward.

You know, we've given them since

October something to get around to it, and they have thus far

failed to do the work, which would have been infinitely more

helpful if they had.

then tomorrow the Fourth Circuit will decide Ward, and then we

will be either pleased with what they said or dissatisfied

with what they said.

important.

explication of the government's position as well.

You know, the Court here will rule and

But I do think the Mills case is very

And I think that the Ward case is a good

And I always enjoy working with Mr. Cargill because

he creates good intellectual problems that rise above merely

saying things.

that's always a pleasure.

There's actually good thought behind them, so

THE COURT:

Yes, it is.

Mr. Cargill, did you want to reply at all?

MR. CARGILL:

No.

Thank you, Your Honor.

Pet. App. 12a

I do agree

U.S.A. v. Guerrant - 6/29/20

this is an interesting issue.

out.

and skirt the specific issue that is before this Court.

just commend to you Townsend.

right.

I don't know how Ward will come

I think the Fourth Circuit could probably decide Ward

THE COURT:

I think those judges got it

All right.

Well, Counsel, I have

researched this.

the definition, the state and federal definition, of marijuana

so closely.

argument about the federal definition excluding all oils.

I did discover that, in Virginia, if the THC is less than

12 percent, it's marijuana; if it's greater, it's hashish oil.

So it's still a Schedule I, but it's just not called marijuana

then.

I have to say that I have never looked at

And just for the record, I disagree with the

But in any event, having reviewed the briefs, having

reviewed the case law, I am overruling the objection,

Mr. Cargill.

And

I first look to the language of 4B1.2(b), which does

say a controlled substance offense is "An offense under

federal or state law, punishable by imprisonment for a term

exceeding one year, that prohibits the manufacture, import,

export, distribution, or dispensing of a controlled substance

(or a counterfeit substance), or possession of a controlled

substance (or counterfeit substance) with intent to

manufacture, import, export, distribute, or dispense."

Pet. App. 13a

U.S.A. v. Guerrant - 6/29/20

It does not refer to the Controlled Substance Act.

note the Fourth Circuit, in 2007, in United States versus

Mills rejected the argument and looked at the plain-meaning

approach, noting that that interpretation would read the word

"state" out.

I also note Judge Payne's decision in Ward, with

which I agree.

Substance Act, unlike other guideline sections.

sentencing commission certainly knew how to cross-reference

that definition if they chose to do so, and they did not do so

under the career offender provision.

Townsend and the other circuits that follow Townsend.

There is no cross-reference to the Controlled

So the

And I disagree with

I also note that the other cases you cited to me, the

Bah and Cucalon cases, are immigration cases.

And I also noted that in certain circumstances the

Fourth Circuit does look to the categorical and modified

categorical approaches; for instance, in United States versus

Kershaw.

Appendix 172.

Virginia code section was overbroad because it covered

possession only, and the Court said the statute was divisible.

We look at the underlying documents and it was clear that that

defendant was convicted of manufacturing or distributing

marijuana, so the career offender section applied.

That's an unpublished decision out of 2019, 779 Fed

In that case, the argument was that the

But we're not dealing with a situation like that

Pet. App. 14a

U.S.A. v. Guerrant - 6/29/20

here, because, clearly, that would not then -- if it was only

possession, that would not fit in the description under 4B1.2.

So I overrule the objection and will wait to see what

the Fourth Circuit and the U.S. Supreme Court perhaps have to

say on this issue.

All right.

Given that ruling, are there any other

factual or legal issues we need to address relating to the

appropriate offense level or criminal history category?

MR. BASSFORD:

Not from the government, Your Honor.

MR. CARGILL:

Likewise, Your Honor.

THE COURT:

All right.

I'll first state the possible

statutory penalties and then calculate the guideline range.

The statutory penalties are as follows:

The maximum

possible penalty for Count One is a term of imprisonment of 20

years, and, Count Two, a term of imprisonment of one year.

Neither count has a mandatory minimum.

Count One has a maximum fine of not more than

1 million, and Count Two has a maximum fine of 100,000.

The Court must also impose a mandatory special

assessment of $100 for Count One, and $25 for Count Two, for a

total of $125.

Count One has a mandatory minimum term of supervised

release of three years, and, Count Two, a term of up to one

year.

may be imposed to pay for incarceration and supervised

Restitution may be ordered where applicable.

Pet. App. 15a

And fees

U.S.A. v. Guerrant - 6/29/20

release.

And the Court may require the forfeiture of certain

property to the government, but there's no notice of

forfeiture in this case.

Any objection to those penalties as stated, Counsel?

MR. BASSFORD:

No, Your Honor.

MR. CARGILL:

No, Your Honor.

THE COURT:

And I should have asked you at the

beginning, Mr. Bassford, if the victims were given notice of

this hearing?

MR. BASSFORD:

THE COURT:

Yes, Your Honor, they are aware.

All right.

Then with regard to Count One

the base offense level is under Guideline Section 2D1.1, and

that is a 14.

risk of death or serious bodily injury to another person in

the course of fleeing, so there are two levels added under

3C1.2, for the adjusted offense level of 16.

The defendant recklessly created a substantial

With regard to Count Two, the guideline -- the base

offense level is a 10 under 2A2.4(a).

adjustment for obstruction of justice with regard to that same

reckless behavior under 3C1.2, for a two-level enhancement, so

the adjusted offense level under that is 12.

And there's an

Then with regard to the multiple-count adjustment, we

have the greater of the adjusted offense levels as 16.

is a two-level enhancement pursuant to the number of units

assigned under 3B1.4, with a combined adjusted offense level

Pet. App. 16a

There

U.S.A. v. Guerrant - 6/29/20

of 18.

Then there is the career offender enhancement, which,

as I've ruled, does apply in this case.

offense level of 32.

acceptance of responsibility, for a total offense level of 29.

So that gives us an

We have a minus two and a minus one for

Mr. Guerrant had numerous prior convictions as an

adult, and six of those were scored, yielding a criminal

history score of 9.

intent to distribute, two separate incidents; malicious

wounding; use of a firearm to commit malicious wounding;

interfering with the property rights of another; elude police;

and possession of marijuana.

That's possession of marijuana with

He committed the instant offense while under a

criminal justice sentence, so two points are added.

total criminal history score is 11, which would otherwise be a

V criminal history category.

offender, his criminal history category is VI.

So the

But since he's a career

The advisory guideline range for an offense level of

29 and criminal history category of VI is a term of

imprisonment of 151 to 188 months.

supervised release is three years, and the range for a fine is

30,000 to $1 million.

The guideline range for

Any objection to those calculations, Counsel?

MR. BASSFORD:

No, Your Honor.

MR. CARGILL:

No, Your Honor.

Pet. App. 17a

U.S.A. v. Guerrant - 6/29/20

THE COURT:

for a departure.

It does not appear that anyone is asking

Is that correct?

MR. BASSFORD:

Not from the government, Your Honor.

MR. CARGILL:

Correct, Your Honor.

THE COURT:

All right.

Then I'll consider any

requests for a variance in conjunction with the relevant

factors set out by congress at Title 18, United States Code,

Section 3553(a).

First, does either party have any evidence it wishes

to present?

Mr. Bassford?

MR. BASSFORD:

Your Honor, I would like to play a

video as part of the government's presentation.

THE COURT:

Very well.

MR. BASSFORD:

My computer has decided for the first

time in a year that it wants to go to sleep when it's in

court.

THE COURT:

As long as it's just the computer, we're

all right.

MR. BASSFORD:

Okay.

Your Honor, I think Mr. Cargill

has no objection.

THE COURT:

MR. CARGILL:

It is true, yes, Your Honor.

MR. BASSFORD:

Your Honor, this is a dash camera

Is that true, Mr. Cargill?

video from the lead City of Roanoke police vehicle.

Pet. App. 18a

The black

U.S.A. v. Guerrant - 6/29/20

pickup trucks in front are United States Marshals Service

vehicles, and they are leaving their staging area because they

had an arrest warrant for Mr. Guerrant.

footage of what happened thereafter.

again, Mr. Guerrant will be driving a silver Dodge Charger in

this, and you will see that, I think, momentarily.

And this is the

Just to set the stage

(Video is played.)

MR. BASSFORD:

So there you see two silver vehicles; the front one

And this camera came with no sound.

is Mr. Guerrant, who just got into his vehicle.

Now, it

happened very quickly, but he tried to go left.

There was a

marshal's truck there.

but more in an effort to go that way, found out he couldn't

and went the other way.

that is why the government was willing to come off the more

serious charges.

He struck it, I think not maliciously,

That is the grounds for Count Two and

But, instead, Mr. Guerrant turns right, jumps the

curb, and goes through some of the landscaping.

see him appear on the right in a minute here.

audio, you would hear the lights and sirens going.

And you will

And if you had

I do believe this is property connected with the

school.

Right here are two police vehicles.

They had spike

strips out, and they got three out of four of Mr. Guerrant's

tires.

Pet. App. 19a

U.S.A. v. Guerrant - 6/29/20

But -- and you'll see 581 is to the left there.

is running the frontage road, going towards Hershberger.

is the interaction with Hershberger.

light is red.

Running towards the airport.

See the smoke?

His tires are coming apart right

about there, pieces of tire flying off.

the Krispy Kreme.

light.

person, and that one before he comes to a stop.

Passing in front of

There is the second school bus, another red

He loses control here.

He strikes that innocent

So I submit it for the Court's consideration.

THE COURT:

Thank you, Mr. Bassford.

MR. BASSFORD:

THE COURT:

No, Your Honor.

Any evidence, Mr. Cargill, from

Mr. Guerrant?

MR. CARGILL:

THE COURT:

Any additional

evidence?

This

The Court may notice the

No, Your Honor.

All right.

Then I'll be glad to hear

argument with regard to the appropriate sentence in this case.

Mr. Bassford.

MR. BASSFORD:

Your Honor, I think I set down the

government's irritation pretty clearly in my memo.

selling heroin is bad, it's against the law, and it kills

people.

vehicle is bad, and that's a problem, and that should not

happen.

That's a problem.

You know,

And bumping into the marshal's

But they at least came to work expecting, perhaps, to

Pet. App. 20a

U.S.A. v. Guerrant - 6/29/20

be involved in something like that.

Where the government becomes very irritated is for

the lives and the well-being of all these perfectly innocent

people who are riding about on Hershberger, or riding in

school buses, or walking about in a residential neighborhood,

going about their business, not expecting that they're going

to be caught up in a high-speed chase at speeds, you know, at

some points in excess of 70 miles an hour in these areas.

And if the Court's duty is to see that the purposes

of 3553(a) are implemented, one of those is protection of the

community.

the well-being of people in the community as I've seen in a

while, and that is the point that the government needs to

drive home.

And this is as clear an example of disregard for

And you have additional points about deterrence.

view, this is the second time that Mr. Guerrant has run from

the police.

convicted of that earlier.

We know this, because, of course, he was

And we have respect for the law.

You know, this is

as clear an example of not respecting the law, again, as could

be.

So when you take this sort of behavior, the danger it

poses, the disregard it shows, it cries out for a sentence

that is more severe.

Now, the career offender sentence is a more severe

Pet. App. 21a

U.S.A. v. Guerrant - 6/29/20

sentence.

You know, if we were dealing with something that

was in the 60- or 70-month range, the government would be

wanting to go up and over the top of the guidelines range.

But here 151 months seems to do the work.

that sentence, that 151 months, is sufficient but not

excessive to cover all the conduct that Mr. Guerrant engaged

in.

And we think that

THE COURT:

Thank you, Mr. Bassford.

Mr. Cargill.

MR. CARGILL:

Well, there is no denying the seriousness of this

flight and the condemnation of my colleague for what Thomas

did when the police were trying to stop him.

Yes.

Good morning again, Your Honor.

The Court will note that this charge involving this

flight started as a felony charge on the theory that Thomas

intended to physically harm these officers, and he did not.

He tried to avoid them and, as my colleague pointed out,

scraped the side -- the front panel of his car as he was

attempting to leave.

thereafter.

endangered all those other people out on the roadway, and he

admits that.

None of that minimizes what he did

He should have stopped.

He should not have

And the guidelines account for that, Your Honor.

guidelines have a two-point enhancement for reckless

endangerment, and we do not contest that that enhancement

Pet. App. 22a

The

U.S.A. v. Guerrant - 6/29/20

applies.

The question is:

Does he deserve 151 to 188 months

for his offenses, the heroin offense and this misdemeanor

assault offense?

And we submit that that is too lengthy.

We respect, of course, the Court's decision regarding

the career offender issue.

That will be played out, I'm sure,

later on in the Fourth Circuit.

and whether that sort of lengthy sentence is appropriate, even

if he is a career offender we submit that that is too long.

One of his predicate convictions, as the Court well

But on the merits of this,

knows, is a marijuana offense.

would not be an offense under many state laws across this

country.

Virginia.

He committed an offense that

And I dare say, in time, it won't be a crime even in

151 months just is too long.

He's 27 years old.

He's been in jail, Your Honor, for over a year in the jail.

No programming, no fresh air for over one year in the jail.

And we submit, Your Honor, that a sentence more in

line with the guidelines applicable to these offenses,

including the reckless endangerment enhancement, without

regard to the career offender designation is appropriate,

particularly in these times when, goodness knows, when this

pandemic phenomenon will end.

be before he is accessed into a BOP facility and can actually

breathe fresh air and programs.

I don't know how long it will

Pet. App. 23a

U.S.A. v. Guerrant - 6/29/20

But I would submit that, notwithstanding my

colleague's cogent presentation, that a sentence more in line

with the guidelines applicable without regard to career

offender designation is appropriate and serves all of the

factors listed in 3553(a).

impose such a sentence, a sentence in the range of 37 to 46

months.

And we would ask the Court to

I've asked Mr. Guerrant about where he would like to

be designated, and he asks the Court to recommend that he is

housed at the facility at Butner.

THE COURT:

All right.

Mr. Cargill, I noted that you

spoke with regard to sentence disparities in your memo.

you want to address that?

MR. CARGILL:

Not aside from what's in my memo, Your

Honor.

Did

THE COURT:

All right.

Any additional argument,

Counsel?

MR. BASSFORD:

Your Honor, of course, he is also a

career offender with all of the things that come with that.

He earned his way there honestly, you know, and the other

things are aggravators on top of that.

THE COURT:

Thank you, Mr. Bassford.

Anything else, Mr. Cargill?

MR. CARGILL:

THE COURT:

No.

Thank you, Your Honor.

Mr. Guerrant, now is your opportunity to

Pet. App. 24a

U.S.A. v. Guerrant - 6/29/20

tell me whatever you would like to say in mitigation of

sentence, or you may tell me whatever you would like me to

know before imposing your sentence.

THE DEFENDANT:

Yes, ma'am.

I mean, as you can see,

I made a poor choice.

I mean, I'm not a bad person.

as it looks, I mean, it might seem like I'm a bad person, but

I'm really not.

I mean?

know what I'm saying?

lot of time, and I'm not trying to spend most of my 30s in the

federal penitentiary, which that's what it seems like -- how

it's looking, that's what it seems like I'm going to be doing.

But I'm not trying to be doing that.

I try to stay out of trouble.

I mean,

You know what

I mean, I'm just asking for a leaner sentence.

You

Like, I'm not -- I feel like that's a

And, I mean, I got a son that's eight years old that

I'm trying to get back out there and take care of, and get on

the right track and do better for my family and, you know what

I'm saying, for everyone that really have love for me.

guess the only thing I'm asking is for a leaner sentence, Your

Honor.

So I

THE COURT:

Anything else, Mr. Guerrant?

THE DEFENDANT:

THE COURT:

After calculating the guidelines and ruling on the

No, ma'am.

Thank you, sir.

objection and hearing argument, seeing the video, I must

consider the relevant factors set out by congress at Title 18,

Pet. App. 25a

U.S.A. v. Guerrant - 6/29/20

United States Code, Section 3553(a) and ensure that I impose a

sentence that is sufficient but not greater than necessary to

comply with the purposes of sentencing.

These purposes include the need for the sentence to

reflect the seriousness of the crime, promote respect for the

law, and provide just punishment for the offense.

sentence should also deter criminal conduct, protect the

public from future crime, and promote rehabilitation.

The

In addition to the guidelines and policy statements,

I must consider the nature and circumstances of the offense,

Mr. Guerrant's history and characteristics, the need to avoid

unwarranted sentence disparities among similarly situated

defendants, and the types of sentences that are available.

In this case, I intend to impose a sentence of 120

months, varying downward, on Count One, and 12 months on Count

Two, to be served concurrently; a supervised release term of

three years on Count One, and one year on Count Two, to run

concurrently; a fine of $100 on Count One, and I'll waive

interest on that; and, of course, the mandatory special

assessment of $125.

I also intend to impose the conditions of supervised

release listed in the presentence investigation report.

I note in this case in imposing a sentence the

following reasons, and taking all of the factors into -- the

3553(a) factors into account and the advisory guidelines into

Pet. App. 26a

U.S.A. v. Guerrant - 6/29/20

account, I believe this is an appropriate sentence.

All drug crimes are serious crimes.

This crime

involved heroin, which we know to be a very dangerous drug

that causes much destruction in our community.

however, this was not a huge amount of drugs involved in this

case; it was a smaller amount of drugs.

I acknowledge,

I also note that, unlike many cases, Mr. Guerrant was

in the business for profit.

doesn't appear that he had an addiction that caused him to

sell this heroin for his own use.

need to punish, deter, and promote respect for the law in this

case.

While he used marijuana daily, it

And I note the significant

In this case, we had fleeing from the marshals.

And

the government acknowledges there's only minor damage to the

marshal's vehicle.

school property, passing two school buses and many, many

vehicles, which I consider to be -- you know, I look at cases

to see whether someone in the commission of the offense

oftentimes, perhaps, has a firearm.

situation.

speeding vehicle, which is also a very dangerous situation.

But then we have high-speed flight onto

That's a dangerous

In this case we have, instead of a firearm, a

I saw the video.

Many people were placed in danger

because of those actions, and the Court cannot ignore that.

I also note that Mr. Guerrant has appeared to be

unwilling to abide by the law.

Despite many opportunities in

Pet. App. 27a

U.S.A. v. Guerrant - 6/29/20

his career of criminal activity, he doesn't abide by the law,

by the terms of his probation, or court-imposed conditions.

He initially was taken into custody at age 15.

age 18, he's charged with felony possession with intent to

distribute marijuana, which was reduced to a misdemeanor.

he was given a chance there.

and identified as having shot another individual during a

fight, not the individual he was fighting with, and convicted

of malicious wounding and use of a firearm.

A year later, he was arrested

While on probation for these offenses, he could not

comply with the terms of his suspended sentence.

new convictions for contempt of court, interfering with

property rights, eluding police, driving on a suspended

license, possession of marijuana, and possession of marijuana

with intent to distribute.

initially in 2016, was eventually terminated at his third

revocation hearing.

someone who does not respect the law and has not taken

opportunities to learn from mistakes he's made.

He obtained

And his probation, imposed

These are the actions and the history of

I note in his allocution that he did not wish to hurt

anyone.

I understand that.

I also note his young age and the

fact that he has garnered all of these points in a relatively

short amount of time.

his brother, whom he admired and was a mentor, was killed when

Mr. Guerrant was only ten years old.

And I note the unfortunate event when

Pet. App. 28a

I note that in his

U.S.A. v. Guerrant - 6/29/20

favor.

I also note, in varying downward, that with regard to

career offenders he does not have multiple convictions that

would qualify under drug charges, unlike many career

offenders.

the time he committed the malicious wounding.

reasons, I believe that a downward variance is appropriate in

this case to 120 months.

And I note the young age of 19 years old during

So for those

I also look to the argument of unwarranted sentence

disparities.

consistent, to the extent I can, with regard to sentence

disparities.

lower, but a similar sentence to one received by Mr. Rahmyene

Jones -- I believe Mr. Cargill is familiar with him -- who was

also determined to be a career offender and involved a small

amount of drugs and had an unfortunate childhood.

suggesting Mr. Guerrant did.

brother.

also did not have extensive prior drug charges.

And I always try to be especially internally

And I note that this is a similar, a little

I'm not

He did have the death of his

But I note that Mr. Guerrant is younger than him,

So for all of those reasons, I believe this is an

appropriate sentence in this case.

Mr. Guerrant's favor, he did not have a firearm present during

this offense.

this is an appropriate sentence.

I also note that, in

So for all of those reasons, the Court believes

Do the parties have any objection to the procedure by

Pet. App. 29a

U.S.A. v. Guerrant - 6/29/20

which the Court determined the sentence?

MR. BASSFORD:

No, Your Honor.

MR. CARGILL:

No, Your Honor.

THE COURT:

Do you know of any reason, other than the

reasons already argued, why the sentence should not be imposed

as stated?

MR. BASSFORD:

No, Your Honor.

MR. CARGILL:

No, Your Honor.

THE COURT:

Very well.

Then, Mr. Guerrant, I will

impose your sentence.

Pursuant to the Sentencing Reform Act of 1984, and

having considered the factors noted in Title 18, United States

Code, Section 3553(a), and after having consulted the advisory

sentencing guidelines, it's the judgment of the Court that the

defendant, Thomas Javion Guerrant, is hereby committed to the

custody of the Bureau of Prisons to be imprisoned for a total

term of 120 months.

One and 12 months on Count Two, to be served concurrently.

That term consists of 120 months on Count

Upon release from imprisonment, you shall be on

supervised release for a term of three years.

That's three

years on Count One and one year on Count Two.

They are

concurrently.

You must comply with the following mandatory

conditions of supervision:

You must not commit another federal, state, or local

Pet. App. 30a

U.S.A. v. Guerrant - 6/29/20

crime;

You must not unlawfully possess a controlled

substance;

You must refrain from any unlawful use of a

controlled substance, and must submit to one drug test within

15 days of release from imprisonment, and at least two

periodic drug tests thereafter, as determined by the Court;

You must cooperate in the collection of DNA, as

directed by the probation officer;

And you must comply with the standard conditions of

supervision that have been adopted by this Court -- which the

Court is not going to read, given that they are in the

presentence investigation report and everyone has notice -- as

well as the following special conditions:

from imprisonment, the Court will evaluate your status and

determine whether after-incarceration drug rehabilitation is

necessary and appropriate.

you shall participate in a program as designated by the Court,

upon consultation with the probation officer, until such time

as you have satisfied all requirements of the program.

Following release

And if it is deemed appropriate,

You shall reside in a residence free of firearms,

ammunition, destructive devices, and dangerous weapons.

You shall submit your person, property, house,

residence, vehicle, papers, other -- excuse me, office to a

search conducted by a United States probation officer.

Pet. App. 31a

U.S.A. v. Guerrant - 6/29/20

Failure to submit to such search may be grounds for revocation

of release.

premises that the premises may be subject to searches pursuant

to this condition.

You shall warn any other occupants of the

An officer may conduct a search pursuant to this

condition only when reasonable suspicion exists that you have

violated a condition of your supervision and that the areas to

be searched contain evidence of this violation.

It is ordered that you pay to the United States a

special assessment of $125, which is due and payable

immediately.

It is further ordered you pay the United States a

total fine of $100; that's $100 on Count One and no fine on

Count Two.

fine is below the guideline range, noting that you don't have

the ability to pay a guideline fine.

And I'll waive interest on that payment.

And that

And having assessed your ability to pay, the total

criminal monetary penalties are due immediately and payable as

follows:

the term of imprisonment payment in equal monthly installments

of $25 or 50 percent of your income, whichever is less, to

commence 60 days after the date of the judgment, and if any

remains thereafter, equal monthly installments of $25 during

your supervised release, to commence 60 days after release

from imprisonment.

A lump sum payment of $125 immediately, and during

Pet. App. 32a

U.S.A. v. Guerrant - 6/29/20

I will recommend -- I can't control where you're

housed but I will recommend Butner.

Is there a reason you would like to be in Butner,

because the Bureau of Prisons likes to know a reason.

THE DEFENDANT:

THE COURT:

Is that closer to your family, or have

you heard about programs at Butner?

THE DEFENDANT:

THE COURT:

No, ma'am.

It's kind of close.

And pursuant to the plea agreement, does

the government move to dismiss Counts Three, Four, and Five?

MR. BASSFORD:

THE COURT:

Yes, Your Honor.

I will dismiss those counts.

Counts

Three, Four, and Five will be dismissed in the judgment,

Mr. Guerrant.

Mr. Guerrant, I hope you have some understanding that

after you're released from incarceration, if you continue on

the path you've been on, your future looks bleak to me.

hope it looks bleak to you if you continue on that path.

And I

I hope that while you're incarcerated you can get

your GED, maybe get some vocational training so you can get a

job and not rely on the sales of drugs for money when you're

released from incarceration.

And I hope you understand that you have to abide by

the conditions that the Court has imposed on you.

to remind you that if you don't, once you're released from

Pet. App. 33a

And I want

U.S.A. v. Guerrant - 6/29/20

incarceration, if you don't abide by those terms, you may be

back here for a revocation of that release and serving

additional time in prison.

But, Mr. Guerrant, I have hope for you.

You do have

a bright future, but you're going to have to work for it, and

you're going to have to apply yourself to that future.

think you are very fortunate in this situation that you did

not harm any individuals with regard to the actions you took

when they were attempting to arrest you.

And I

I hope you understand the serious nature of what

you've done.

you were already a Category V with regard to your criminal

history, at 26 years old.

Even without the career offender enhancement,

That's the second highest category.

So you're going to have to work for it, to lead a

law-abiding life.

good father to your son when you're incarcerated.

still support your family, you can still support your

children.

that.

I also tell you that you can still be a

You can

Being incarcerated doesn't stop you from doing

And I usually end my sentencings with a quote, and

for you, Mr. Guerrant, I have two.

Roosevelt who said, "If you can kick the person in the pants

responsible for most of your trouble, you wouldn't sit for a

month."

The first is Theodore

And the second is a motivational speaker, Dennis

Pet. App. 34a

U.S.A. v. Guerrant - 6/29/20

Wheatley.

you come to terms with the realization that your decisions

cause your rewards and consequences.

your life, and your ultimate success depends on the choices

you make."

And he said, "A sign of wisdom and maturity is when

You are responsible for

As you told me, you made some bad choices here.

And

I hope in the future when you're tempted by bad choices, that

you think about it and make good choices going forward,

law-abiding choices.

Is there anything else we need to take up in this

case today, Mr. Bassford?

MR. BASSFORD:

THE COURT:

MR. CARGILL:

THE COURT:

No, Your Honor.

Mr. Cargill?

No.

Thank you, Your Honor.

I would remind counsel in the future that

we've had very successful sentencings by video hearings, if

that is of interest to the defendant.

defendant must consent to that.

of that.

Of course, the

But I'll just remind counsel

And, Mr. Guerrant, you're remanded to the custody of

the U.S. Marshal.

And if you would declare us in recess until our 11:00

o'clock matter.

(Court recessed from 10:25 a.m. to 12:02 p.m.)

THE COURT:

Ms. Davis, if you would call our case,

Pet. App. 35a

U.S.A. v. Guerrant - 6/29/20

please.

THE CLERK:

United States of America versus Thomas

Javion Guerrant, Criminal Case 7:19CR39.

THE COURT:

Counsel, I asked you to come back because

I realized after we declared a recess that I had failed to

advise Mr. Guerrant about his appeal rights and waiver of

certain rights.

So, Mr. Guerrant, you have waived the right to appeal

your sentence, except you specifically reserved the right to

appeal any determination I made with regard to your career

offender status.

regard.

appeal your sentence, and that waiver is binding unless the

sentence exceeds a statutory maximum or is based on a

constitutionally impermissible factor.

to appeal despite your waiver, you may lose the benefits of

your plea agreement.

So you preserve the right to appeal in that

But other than that, you've waived your right to

And if you undertake

If a right of appeal does exist -- and you've

reserved certain rights -- and you're unable to pay the cost

of an appeal, you may apply for leave to appeal without

prepayment of that cost.

filed within 14 days of entry of the judgment or within 14

days of notice of appeal filed by the government.

requested, the clerk will prepare and file a notice of appeal

on your behalf.

And any notice of appeal must be

Pet. App. 36a

And if

U.S.A. v. Guerrant - 6/29/20

All right.

THE DEFENDANT:

THE COURT:

Any question about that?

No, ma'am.

All right.

Anything else we need to take

up today?

MR. BASSFORD:

No, Your Honor.

MR. CARGILL:

No.

THE COURT:

device here squeezing my head.

MR. CARGILL:

Thank you, Your Honor.

I'm going to blame my error on this

Well, for what it's worth, Your Honor,

I'm going to endeavor to do all these by Zoom, you know.

is awkward.

THE COURT:

I agree.

This

I was dreading a trial that I

have coming up in Harrisonburg in August because I thought how

are we going to do this for a week.

a pretrial conference tomorrow, and I was going to suggest to

counsel that they don their mask for four hours at a time and

endeavor to make arguments and question witnesses through it.

But they've indicated that they're resolving that matter.

But thank you, everyone.

And we were going to have

And I appreciate your

accommodating my request that everyone wear a mask in the

courtroom and keep a distance from one another.

all stay well.

And, Mr. Guerrant, same for you.

THE DEFENDANT:

THE COURT:

I hope you

Appreciate it.

All righty.

And with that, then we are

Pet. App. 37a

U.S.A. v. Guerrant - 6/29/20

adjourned for the day.

Counsel, don't wait for me, because we're going do a

little experiment in the courtroom with regard to some

plexiglass.

But, Mr. Bassford, if you would clean up your area.

And I see Mr. Cargill is doing that.

I would appreciate it,

and the people next in the courtroom will appreciate it.

I'm going to do the same.

(Court adjourned at 12:06 p.m.)

CERTIFICATE

I, Judy K. Webb, certify that the foregoing is a

correct transcript from the record of proceedings in

the above-entitled matter.

/s/

Judy K. Webb

Date: 8/17/2020

Pet. App. 38a

And

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.