United States v. Andrey Guidry ( 2021 )


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  •                          NOT RECOMMENDED FOR PUBLICATION
    File Name: 21a0521n.06
    Case No. 20-1274
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    FILED
    Nov 16, 2021
    )                    DEBORAH S. HUNT, Clerk
    UNITED STATES OF AMERICA,
    )
    Plaintiff-Appellee,                            )        ON APPEAL FROM THE
    )        UNITED STATES DISTRICT
    v.                                                     )        COURT FOR THE WESTERN
    )        DISTRICT OF MICHIGAN
    ANDREY LARONGE GUIDRY,                                 )
    Defendant-Appellant.                           )                             OPINION
    BEFORE:        DAUGHTREY, COLE, and CLAY, Circuit Judges.
    COLE, Circuit Judge. Andrey Guidry was sentenced to 120 months’ imprisonment after
    pleading guilty to being a felon in possession of a firearm. Guidry now appeals the district court’s
    sentencing decision on the grounds that the application of an enhancement under U.S.S.G.
    § 2K2.1(b)(6)(B) was procedurally and substantively unreasonable. Guidry also challenges the
    district court’s determination that his prior Michigan convictions for “[c]ontrolled substance-
    delivery/manufacture” under 
    Mich. Comp. Laws Ann. § 333.7401
     are “controlled substance
    offenses” within the meaning of U.S.S.G. § 4B1.2. We affirm.
    I.
    A. Factual Background
    On September 3, 2019, the Fugitive Team of the Grand Rapids Police Department
    (“GRPD”) saw Guidry and another man walking down the street. GRPD knew there were
    Case No. 20-1274, United States v. Guidry
    outstanding warrants for Guidry’s arrest. The officers, with their guns drawn, ordered Guidry and
    the other man to the ground. Guidry cooperated with the officers and told the officers he had a
    gun and some heroin. The officers arrested Guidry without incident and placed him in handcuffs.
    The officers searched Guidry and found (1) a loaded Cobra Enterprises, Model Patriot, .380 caliber
    semiautomatic pistol, (2) twelve Hornady 0.380 rounds of ammunition, and (3) a plastic bag with
    four small baggies of narcotics. When these narcotics were tested in the laboratory, they tested
    positive for 0.373 grams of heroin and 0.143 grams of fentanyl. On October 23, 2019, Guidry was
    indicted in the United States District Court for the Western District of Michigan. Guidry was
    charged with a single count of being a felon in possession of a firearm and ammunition in violation
    of 
    18 U.S.C. § 922
    (g)(1). On December 6, 2019, Guidry pleaded guilty without a plea agreement.
    On December 20, 2019, United States Probation and Pretrial Services (“Probation”)
    conducted a presentence interview with Guidry at the Newaygo County Jail. Guidry candidly
    discussed his history of drug and alcohol use. He explained that his mother passed away when he
    was 18 years old from Amyotrophic Lateral Sclerosis (“ALS”). “He loved his mother, and she
    was everything to him,” so her death was very difficult. (PSR, R. 28, PageID 80.) After his mother
    died, Guidry experienced depression.
    Guidry reported that he used heroin for the first time when he was 19 years old. He
    described his heroin use as “occasional” when he was depressed and that he used by “snorting
    lines.” (PSR, R. 28, PageID 83.) At this presentence interview, Guidry said he last used heroin in
    June 2019. But Guidry also said he was under the influence of heroin at the time of his September
    2019 arrest. Guidry told Probation that he would benefit from substance treatment, specifically
    for alcohol and heroin use.
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    Case No. 20-1274, United States v. Guidry
    B. Sentencing
    Probation prepared a Presentence Investigation Report (“PSR”) in anticipation of
    sentencing. At the time of his September 2019 arrest, Guidry had two prior Michigan convictions
    for possession with intent to distribute less than 50 grams of heroin, in violation of 
    Mich. Comp. Laws Ann. § 333.7401
    . In the report, Probation classified both of Guidry’s Michigan convictions
    as “controlled substance offenses” within the meaning of U.S.S.G. § 4B1.2. As a result, Guidry’s
    base offense level increased from 14 to 20. Guidry objected to this classification, arguing that
    under the court’s en banc decision in United States v. Havis, 
    927 F.3d 382
     (6th Cir. 2019) (en
    banc), the 2012 convictions did not qualify as “controlled substance offenses.”
    Probation also applied the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B)
    because in addition to the gun, Guidry had four baggies with small amounts of heroin and fentanyl
    inside. Guidry objected, arguing that because there was no evidence of drug-trafficking, the
    enhancement did not apply. He argued that his history of drug use, the small quantity of narcotics
    found in the baggies, and the lack of indicia of drug sales, instead suggested possession for personal
    use.
    On March 19, 2020, the district court held a sentencing hearing. Guidry argued the record
    was consistent with possession for personal use and that it lacked the standard indicia of
    distribution. As Guidry’s defense counsel explained in the hearing:
    [Mr. Guidry] was not engaging in any trafficking transaction, there is no evidence
    he was on his way to do so. There were no trappings of dealings, no cash recovered,
    no scales. He was not in a drug area, at least not as it was reflected in any report.
    (Sentencing Hr’g Tr., R. 38, PageID 180.)
    Guidry further argued that the § 2K2.1(b)(6)(B) enhancement was inapplicable because
    there was no requisite connection between the gun and the small amount of heroin found. “The
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    firearm in this case did not advance any felony. The coexistence of another felony is not enough.”
    (Sentencing Hr’g Tr., R. 38, PageID 180.)
    The government responded by insisting that Guidry did intend to distribute the drugs.
    Specifically, the government argued that possession of four separate baggies of drugs was in and
    of itself indicative of dealing drugs and not of personal use.
    Mr. Guidry did not have just one bag of drugs, he had four separate baggies which
    is in and of itself indicative of distribution and not personal use. People who are
    drug users don’t tend to buy one quantity of drugs and keep it, and buy another
    quantity of drugs and keep it, and another quantity of drugs and keep it, if it’s all
    for personal use, they tend to buy and use and buy and use. However, if the intent
    is to sell the drugs, they are generally individually packaged.
    (Sentencing Hr’g Tr., R. 38, PageID 184.)
    The government further argued that Guidry’s claim of possession for personal use was
    inconsistent with the conversation he had with Probation, pointing to Guidry’s claim that he had
    not used heroin in months. The government contended that Guidry’s claim that he had not used
    heroin in months supported the government’s belief that he intended to distribute.
    In response, the district court asked Guidry’s counsel what she made of the fact that Guidry
    told Probation he had not used heroin in several months. Guidry’s counsel responded that Guidry’s
    drug use had been a recurrent habit throughout his adult life and that at the time of his arrest, he
    did intend to use the drugs he possessed.
    Ultimately, the district court was not persuaded by Guidry’s arguments, and it overruled
    Guidry’s objections and rejected his claim of possession for personal use only. The court
    concluded that Guidry intended to distribute the drugs, emphasizing the packaging (four separate
    baggies) and the fact that Guidry had two prior convictions for possession with intent to distribute.
    The district court also agreed with Probation that both of Guidry’s prior Michigan drug convictions
    were “controlled substance offenses.”         The district court applied the § 2K2.1(b)(6)(B)
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    Case No. 20-1274, United States v. Guidry
    enhancement for possession of a firearm in connection with another felony offense. Guidry was
    sentenced to 120 months, which was both within the Guidelines range and below the statutory
    maximum. Guidry timely appealed the district court’s sentencing decision. We have jurisdiction
    under 
    28 U.S.C. § 1291
    .
    II.
    A. The district court did not err in applying the enhancement under U.S.S.G.
    § 2K2.1(b)(6)(B).
    We first consider Guidry’s argument that his sentence was procedurally and substantively
    unreasonable. Although Guidry claims to challenge his sentence on both grounds, he does not
    explicitly develop a substantive reasonableness claim in his briefing. Because he failed to develop
    this argument, any challenge to his sentence based on substantive reasonableness grounds is
    forfeited. United States v. Reed, 
    167 F.3d 984
    , 993 (6th Cir. 1999).
    Even if Guidry did not forfeit his substantive reasonableness claim, it fails. We review the
    substantive reasonableness of a sentence for abuse of discretion. United States v. Solano-Rosales,
    
    781 F.3d 345
    , 356 (6th Cir. 2015). As we explained in United States v. Rayyan, 
    885 F.3d 436
    , 442
    (6th Cir. 2018):
    A claim that a sentence is substantively unreasonable is a claim that a sentence is
    too long (if a defendant appeals) or too short (if the government appeals). The point
    is not that the district court failed to consider a factor or considered an inappropriate
    factor; that’s the job of procedural unreasonableness. It’s a complaint that the court
    placed too much weight on some of the [18 U.S.C.] § 3553(a) factors and too little
    on others in sentencing the individual. Needless to say, this is a matter of reasoned
    discretion, not math, and our highly deferential review of a district court’s
    sentencing decisions reflects as much. Gall [v United States], 552 U.S. [38,] 51,
    
    128 S. Ct. 586
     [(2007)].
    Here, the district court did not select Guidry’s 120-month sentence arbitrarily or give an
    unreasonable amount of weight to any pertinent sentencing factor. Moreover, Guidry’s sentence
    was within the Guidelines range. And for sentences within the Guidelines range, we apply a
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    rebuttable presumption of substantive reasonableness. United States v. Herrera-Zuniga, 
    571 F.3d 568
    , 582 (6th Cir. 2009). Guidry’s 120-month sentence, which was within the Guidelines range,
    was not greater than necessary to comply with the purposes of sentencing. For these reasons,
    Guidry’s substantive reasonableness challenge fails.
    We now turn to Guidry’s procedural reasonableness challenge. Guidry contends the
    district court imposed a procedurally unreasonable sentence when it applied the enhancement
    under U.S.S.G. § 2K2.1(b)(6)(B) for two reasons. First, Guidry argues the district court erred
    when it rejected his assertion that he was carrying the drugs for personal use and instead concluded
    that Guidry intended to distribute the drugs. Second, Guidry argues that once the district court
    erroneously concluded Guidry intended to distribute the drugs, it also erred in finding that Guidry
    possessed the firearm in connection with the drug offense.
    Because Guidry objected below, his sentence is reviewed for procedural reasonableness
    under a deferential abuse of discretion standard. United States v. Fleischer, 
    971 F.3d 559
     (6th Cir.
    2020). Under this standard, we conclude that a sentence is procedurally unreasonable “if the
    district court ‘fail[s] to calculate (or improperly calculate[es]) the Guidelines range, treat[s] the
    Guidelines as mandatory, fail[s] to consider the § 3553(a) factors, select[s] a sentence based on
    clearly erroneous facts, or fail[s] to adequately explain the chosen sentence—including an
    explanation for any deviation from the Guidelines range.’” United States v. Nichols, 
    897 F.3d 729
    ,
    737 (6th Cir. 2018) (quoting Gall, 
    552 U.S. at 51
    .)
    The procedural reasonableness analysis has three steps. See United States v. Bolds,
    
    511 F.3d 568
     (6th Cir. 2007). “First, we must ensure that the district court ‘correctly calculat[ed]
    the applicable Guidelines range’ which [is] ‘the starting point and initial benchmark’ of its
    sentencing analysis.” 
    Id. at 579
     (quoting Gall, 
    552 U.S. at 51
    ). Second, the district court must
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    have given both parties an opportunity to argue for the sentence they determined was appropriate,
    and then considered all of the § 3553(a) factors.” Id. Third, we must ensure that the district court
    explained the sentence to allow for “meaningful appellate review and to promote the perception of
    fair sentencing.” Gall, 
    552 U.S. at 50
     (quoting another source).
    By arguing that the district court relied on clearly erroneous facts when applying the
    enhancement, Guidry is challenging the procedural reasonableness of his sentence at step one. “In
    reviewing the district court’s calculation of the Guidelines, we . . . review the district court’s factual
    findings for clear error and its legal conclusions de novo.” United States v. Yancy, 
    725 F.3d 596
    ,
    598 (6th Cir. 2013). A factual finding is clearly erroneous if “although there is evidence to support
    it, the reviewing court on the entire evidence is left with the definite and firm conviction that a
    mistake has been committed.” United States v. Webb, 
    616 F.3d 605
    , 609 (6th Cir. 2010) (citations
    omitted). We address both of Guidry’s procedural reasonableness arguments in turn.
    i.    The district court did not err in concluding that the record established intent
    to distribute.
    We first consider whether Guidry’s sentence was procedurally unreasonable because the
    district court erroneously concluded that he intended to distribute the heroin and fentanyl.
    A review of the record shows the district court did not err, much less clearly err, in finding intent
    to distribute. There was sufficient evidence to infer Guidry possessed the narcotics in order to
    distribute.
    The district court found that the individually wrapped baggies of narcotics that Guidry
    carried at the time of his arrest were “indicative of distribution and not personal use.” (Sentencing
    Hr’g Tr., R. 38, PageID 184.) Intent to distribute is not necessarily established simply because a
    defendant has a modest amount of individually packaged drugs. See United States v. Faymore,
    
    736 F.2d 328
    , 333 (6th Cir. 1984); United States v. Clark, 
    928 F.2d 733
    , 737 (6th Cir. 1991); United
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    States v. McCready-Redd, 
    475 F.3d 718
     (6th Cir. 2007). But in reviewing the district court’s
    determination that there was sufficient evidence to infer an intent to distribute, we consider the record
    in its entirety. In addition to the individually wrapped baggies, Guidry was also carrying a loaded
    semiautomatic gun.
    The presence of a loaded gun, especially a semiautomatic pistol, is an indicator of
    distribution. In United States v. Burns, 
    498 F.3d 578
    , 581 (6th Cir. 2007), we determined the fact
    a gun is loaded makes it more likely the gun is for protection and to facilitate a drug sale. And in
    United States v. Hardin, 
    248 F.3d 489
    , 497 (6th Cir. 2001), we concluded that semiautomatic
    pistols, like the one Guidry had, were commonly associated with drug-trafficking. In United States
    v. Shields, 
    664 F.3d 1040
    , 1046 (6th Cir. 2011), we also explained: “[I]t is easier to see how a
    firearm facilitates drug-trafficking transactions, than it is to see how a firearm facilitates the mere
    possession of controlled substances.” Thus, it was reasonable for the district court to conclude
    that the loaded semiautomatic gun, together with the individually packaged drugs, were indicia of
    intent to distribute.
    Guidry’s statement to Probation that he had not used heroin since June of 2019 was also
    an indicium of intent to distribute. If Guidry had not used since June, he was less likely to be
    carrying the drugs for personal use. To challenge this reasoning, Guidry points to inconsistencies
    in his statements. Namely, although he told Probation he had not used since June, he also said he
    was under the influence of heroin at the time of his arrest. He further told Probation he would
    benefit from substance abuse treatment, suggesting he was still using drugs. Guidry contends that
    considering his drug-use history, of which the district court was aware, these circumstances were
    not indicative of distribution and were instead indicative of present-day personal use.
    But Guidry’s statements are not necessarily inconsistent with the district court’s
    conclusion. Even assuming Guidry had not stopped using drugs and that he was under the influence
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    Case No. 20-1274, United States v. Guidry
    of heroin at the time of his arrest, he still could have intended to distribute. “Guidry---like many users-
    --could have used some heroin himself while intending to distribute the rest to feed his habit or to make
    some money.” (Appellee Br. 12.) Drug dealers are not mutually exclusive from drug users.
    Finally, when reviewing the evidence, the district court also had the benefit of context.
    Guidry had two prior Michigan convictions for possession with intent to distribute. The similarity
    of Guidry’s prior convictions reasonably informed the court that Guidry intended to distribute the
    heroin and fentanyl.
    Under these circumstances, the district court did not err when it concluded that the record
    contained sufficient evidence to establish intent to distribute.            The record, which shows
    individually wrapped baggies, a loaded semiautomatic gun, an assertion to Probation that heroin
    had not been used in months, and prior drug-trafficking convictions, does not suggest that the
    district court made a clear mistake. See United States v. Donadeo, 
    910 F.3d 886
     (6th Cir. 2018).
    ii.   The district court did not err in concluding there was a nexus between the
    drugs and the gun, as required by § 2K2.1(b)(6)(B).
    We turn next to whether Guidry’s sentence was procedurally unreasonable because the
    court failed to demonstrate the required nexus between the drugs and the gun.                   Here, the
    government’s burden of demonstrating the requisite connection between the drugs and the gun is
    not a particularly high one. It “simply requires that the possession of the firearm ‘cannot be the
    result of accident or coincidence.’” James v. United States, 217 F. App’x 431, 438 (6th Cir. 2007)
    (quoting Hardin, 
    248 F.3d at
    497–98). In United States v. Davis, 372 F. App’x 628, 630 (6th Cir.
    2010), we concluded that “where firearms facilitated, or had the potential to facilitate, a drug
    transaction, § 2K2.1(b)(6) is satisfied.” Here, the district court had already concluded Guidry
    intended to distribute, and the gun was found near the four baggies of narcotics. Because the gun
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    Case No. 20-1274, United States v. Guidry
    had the potential to facilitate drug trafficking, the district court established the requisite nexus
    under § 2K2.1(b)(6).
    For the foregoing reasons, the district court’s application of an enhancement under
    U.S.S.G. § 2K2.1(b)(6)(B) did not result in a procedurally unreasonable sentence. The district
    court did not clearly err in concluding that Guidry intended to distribute. And once the district
    court properly made that determination, the district court did not err in finding the requisite nexus
    under § 2K2.1(b)(6).
    We now turn to Guidry’s final challenge.
    B. Guidry’s     Michigan     convictions     for    “Controlled     Substance-
    delivery/manufacture” in violation of Mich. Comp. Laws Ann. U.S.C.
    § 333.7401 qualify as “controlled substance offenses” within the meaning of
    U.S.S.G. U.S.C. § 4B1.2.
    Guidry also challenges the district court’s classification of his prior Michigan drug-
    trafficking convictions as “controlled substance offenses” under U.S.S.G. § 4B1.2. This challenge
    is foreclosed by United States v. Garth, 965 F.3d (6th Cir. 2020) and United States v. Thomas,
    
    969 F.3d 583
     (6th Cir. 2020). In both cases, we held that prior convictions under Michigan law
    for delivery of heroin and possession with intent to deliver marijuana constituted “controlled
    substances offenses.”
    III.
    For the foregoing reasons, we AFFIRM the district court’s judgment.
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