United States v. Guidry

• Decision Date: 04 June 2020
• Docket Number: No. 19-30347,19-30347
• Citation: 960 F.3d 676
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Damien GUIDRY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

960 F.3d 676

UNITED STATES of America, Plaintiff–Appellee,

v.Damien GUIDRY, Defendant–Appellant.

No. 19-30347

United States Court of Appeals, Fifth Circuit.

FILED June 4, 2020

Camille Ann Domingue, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Lafayette, LA, for Plaintiff - Appellee

Alfred Frem Boustany, II, Lafayette, LA, for Defendant - Appellant

Before SMITH, GRAVES, and HO, Circuit Judges.

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.

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.

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 blind-sided 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.¹ The following calls are relevant to whether Guidry obstructed justice:

• 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."

• November 28, 2016: Guidry noted to an associate that "they make graveyards for anybody, I ain’t tripping."

• 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.

• December 12, 2016: Guidry told Kelly to "make sure that [Pattum] ain’t gonna testify for no Grand Jury or nothing man.... If [Pattum] done that he is going to get me a federal charge."

• 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.

• 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.³ 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 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.

II.

Guidry contends that the court clearly erred by applying two-level enhancements to his offense level under U.S.S.G. § 3C1.1 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.⁴ "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 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 , ––– U.S. ––––, 136 S. Ct. 1338, 1345, 194 L.Ed.2d 444 (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. § 3C1.1. 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 hindrance 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 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...