United States v. Guerrero

• Docket Number: 23-1570
• Decision Date: 16 July 2024
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAY GUERRERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAY GUERRERO, Defendant-Appellant.

No. 23-1570

United States Court of Appeals, Sixth Circuit

July 16, 2024

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: MOORE, COLE, and MATHIS, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

After a multi-day trial, a jury convicted Ray Guerrero for his part in a drug-trafficking conspiracy and for being a felon in possession of firearms.Guerrero does not challenge his convictions on appeal but instead attacks nearly every finding that the district court made en route to sentencing him to 292 months' imprisonment.The bulk of Guerrero's arguments fail because the district court was within its authority to rely on certain facts proven at trial.But the district court nonetheless failed to explain adequately the basis for Guerrero's sentence and to acknowledge a key argument Guerrero made for a lower sentence.Accordingly, we AFFIRM in part, REVERSE in part VACATE Guerrero's sentence, and REMAND this case for resentencing consistent with this opinion.

I.BACKGROUND

We recount only the facts relevant to Guerrero's appeal focused on issues at sentencing.

A. Pre-Trial Proceedings and Trial

After substantial pre-trial proceedings that are not relevant to this appeal, on September 29, 2022, Ray Guerrero was indicted by a grand jury on three counts contained in an amended second superseding indictment: (1) conspiracy to possess with intent to distribute and to distribute controlled substances, in violation of 21 U.S.C. §§ 846and841(a)(1);(2) felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1); and (3) possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c).R. 587 (Am. Second Superseding Indictmentat 1-5)(Page ID #2452-56).Guerrero pleaded not guilty to all three counts and proceeded to a jury trial which began on October 12, 2022.R. 611 (PSR ¶¶ 17-18).

Over the course of Guerrero's trial, which lasted from October 12 to October 21, the government called fifteen witnesses.Appellant Br.at 4.We focus on the testimony of the witnesses relevant to Guerrero's appeal.Jerimy Wolosonowich testified to being a customer of Guerrero's over the course of many years.R. 606(TrialTr. at 78:19-23, 79:20-80:18, 81:8-11)(Wolosonowich Direct)(Page ID #2710-13).Wolosonowich began buying cocaine from Guerrero in 2009 through an intermediary: Wolosonowich's friend Kenny.Id.After purchasing cocaine from Guerrero about five times through Kenny, id.at 81:21-25(Page ID #2713), Wolosonowich began reaching out to and purchasing cocaine from Guerrero directly, id.at 82:122(Page ID #2714).Wolosonowich bought twenty dollars' worth of cocaine directly from Guerrero approximately fifteen times.Id.

Wolosonowich bought other drugs from Guerrero, too, including Vicodin.Id.at 88:2389:5(Page ID #2720-21).When Guerrero was not available to sell to Wolosonowich, Guerrero sometimes directed Wolosonowich to his son, Oscar.Id.This happened approximately five times beginning in 2015. Id.at 89:9-14(Page ID #2721).Wolosonowich explained that in July 2016 Oscar was around eighteen years old, so that Oscar would have been seventeen years old when Wolosonowich first bought Vicodin from Oscar.Id. at 93:23-94:11 (Page ID #2725-26).

Kendrick Johnson, a cooperating witness, also testified about Guerrero's drug dealing.Johnson began purchasing cocaine from Rolando Guerrero, one of Ray Guerrero's brothers, in 2013. R. 606(TrialTr. at 127:18-128:8)(Johnson Direct)(Page ID #2759-60).Johnson initially bought relatively small quantities of cocaine from Rolando, about one sixteenth of an ounce per purchase, for five to six months.Id.at 129:7-20(Page ID #2761).This soon changed, however, when Johnson's friend, Lee Shelby, got involved.Johnson connected Shelby with Rolando, and Shelby began purchasing cocaine by the ounce from Rolando.Id.at 130:7-133:6(Page ID 276265).

During the first transaction involving both Johnson and Shelby and Rolando Guerrero, Rolando explained to Johnson and Shelby that Rolando needed to obtain these larger amounts of cocaine from Ray Guerrero.Id.After Shelby and Johnson initially contacted Rolando, Rolando called Johnson and Shelby back approximately ten to fifteen minutes later and told them that they could head to a home on Virginia Street in Pontiac, Michigan, because Ray Guerrero was en route with the cocaine.Id.This same interaction-calling Rolando, who then explained that he needed to reach out to Ray-happened more than ten times.Id.Each time, Johnson and Shelby would wait fifteen to thirty minutes at the Virginia Street residence until Ray Guerrero showed up.Id.

Johnson directly saw Ray Guerrero come to the house on these occasions.Id.Ray Guerrero waited in his truck with the drugs during these transactions, and Rolando "t[ook] care of business" inside the house.Id.at 133:14-134:11(Page ID #2765-66).On the ten occasions Johnson saw Ray Guerrero pull up to the Virginia Street house, Rolando went to the car to obtain the cocaine from Ray Guerrero.Id.at 136:21-137:20(Page ID #2768-69).The drug deals did not occur until Rolando returned to the house with the cocaine.Id.

For the first couple of months of this arrangement, Shelby and Johnson would purchase one to two ounces of cocaine at a time and purchased "about six ounces a week."Id.at 134:21135:23(Page ID #2767-68).Eventually, Shelby and Johnson began buying more cocaine- sometimes four ounces during a single transaction, and sometimes eight.Id.Rolando Guerrero told Shelby and Johnson that he needed to check with Ray Guerrero"[a]ll the time" about whether he had sufficient cocaine.Id.at 135:24-136:4(Page ID #2767-68).

On certain occasions, Shelby and Johnson went to a different residence on Howard Street where Ray Guerrero's brother, Raul, lived.Id.at 139:5-9(Page ID #2771).Shelby and Johnson bought eight ounces of cocaine about six to ten times at the Howard Street residence.Id.at 141:923(Page ID #2773).Johnson and Shelby also bought cocaine from a residence on New York Street where Susie Guerrero lived.Id.at 142:8-21(Page ID #2774).This was on Rolando and Ray Guerrero's instruction.Id.Shelby and Johson bought cocaine at this residence between twenty and forty times.Id.at 142:25-143:19(Page ID #2774-75).On each of these occasions, Johnson would call Rolando, who then called Ray Guerrero to facilitate the transaction.Id.Rolando would call Johnson back to tell him when Ray Guerrero was on his way to the house.Id.Johnson and Shelby purchased four to eight ounces of cocaine during these transactions.Id. at 144:4-145:8 (Page ID #2776-77).These deals transpired in a similar manner to those done at the Virginia Street residence; often, Johnson and Shelby would have to wait twenty to thirty minutes for Ray Guerrero to arrive with the cocaine, and Johnson saw Ray Guerrero arrive at the house on several occasions.Id."So it was mainly just Rolly always preaching that his brother . . . [would] be here within 15 minutes, 20 minutes."Id.at 144:22-25(Page ID #2776).

Johnson explained that Rolando Guerrero reported that Ray Guerrero would go to Texas to pick up more cocaine when the Guerrero family supply was low.Id.at 148:15-24(Page ID #2780).Rolando told Johnson fifty to 100 times that Guerrero was out of state to get more cocaine.Id.In the fall of 2015, Johnson and Shelby began acquiring cocaine directly from Ray Guerrero without going through Rolando.Id.at 151:9-152:13(Page ID #2783-84).Johnson testified that he and Shelby bought between one and eight ounces of cocaine up to 150 times from Guerrero.Id.at 161:2-10, 161:20-162:7(Page ID #2793-94).

Lee Shelby testified next.His testimony largely lined up with Johnson's. R. 606(TrialTr. at 211:14-23)(Shelby Direct)(Page ID #2843)(testifying to Johnson setting up drug purchases through Rolando Guerrero at the house on Virginia Street);id.at 212:1-7(Page ID #2844)(testifying to deals on Howard and New York Street residences);id.at 212:17-213:24(Page ID #2844-45)(testifying to initially purchasing one ounce of cocaine multiple times per week but then increasing purchases to two to three ounces multiple times per week for period of months);id.at 215:8-16(Page ID #2847)(testifying that when Shelby and Johnson bought drugs through Rolando, Rolando would explain that he obtained the drugs through Ray Guerrero and that they would need to wait until Ray Guerrero had supplied Rolando).Like Johnson, Shelby explained that whenever there were delays in completing a drug transaction at the Virginia Street residence, Rolando attributed them to Ray Guerrero not having dropped off the drugs.Id.at 216:15-217:20(Page ID #2848-49).Shelby, however, did not see Ray Guerrero drop off drugs at the residence, but that was because Shelby would wait inside the residence.Id.at 217:23-218:11(Page ID #2849-50).With respect to amounts of cocaine, Shelby testified that he bought up to four to eight ounces of cocaine at a time, and estimated that he bought "well over five kilos, probably closer to 10" from the Guerreros over the years.Id.at 218:12-25(Page ID #2850).And with respect to the number of transactions, Shelby estimated that he purchased cocaine from the Guerreros 100 times and had to wait for Ray Guerrero to bring the drugs about twenty-five times.Id.at 219:413(Page ID #2851).

On certain occasions, Shelby directly spoke with Ray Guerrero about transactions.In October 2015, Shelby arranged a controlled buy of two ounces of cocaine through a phone call with Ray...