United States Court of Appeals
Fifth Circuit
F I L E D
In the April 6, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-40425
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DONALD PAUL GUIDRY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
______________________________
Before HIGGINBOTHAM, SMITH, and I.
BENAVIDES, Circuit Judges. The conviction is based on the robbery of a
barbeque restaurant during the course of
JERRY E. SMITH, Circuit Judge: which the owner was struck in the back of the
head with a weapon, and the employees and
Donald Guidry challenges his conviction of customers were bound with duct tape and rope
violating 18 U.S.C. § 922(g)(1), the felon in and left in the bathroom. After the robbers
possession of a firearm statute. Finding no re- left, the victims freed themselves and called
versible error, we affirm. police. Based on the fact that the witnesses
heard the robbers refer to one of their own as
“D.P.,” and on the description of one of the
perpetrators as having a distinctive “teardrop”
tattoo by his left eye, the investigating officers II.
believed that Guidry was involved. They im- Guidry argues that the evidence was insuffi-
mediately dispatched officers to a house where cient to support a conviction. We must decide
Guidry was known to be. whether a rational trier of fact could have
found that each element of the charged crim-
When the officers arrived, Guidry fled into inal offense was proven beyond a reasonable
the house but was subsequently detained. Af- doubt. See United States v. Ortega Reyna,
ter the owner gave consent to search the 148 F.3d 540, 543 (5th Cir. 1998). We con-
house, officers discovered a shotgun, pistol, sider all the evidence in a light most favorable
clothes matching those that the assailant called to the government, drawing all inferences and
“D.P.” wore during the robbery, and a box credibility choices in its favor. Id.
containing one-dollar bills that had a strong
smell of barbeque smoke. Guidry and four To establish a violation of § 922(g)(1), the
other black male residents of the house were government has the burden to prove three ele-
seized by the police and taken back to the ments beyond a reasonable doubt
crime scene.
(1) that the defendant previously had been
Upon returning to the restaurant, the police convicted of a felony;
lined up the five suspects in handcuffs, against
the patrol cars outside the window of the res- (2) that he possessed a firearm; and
taurant. Guidry was identified as an assailant
by two eyewitnesses, Allyssa Plunkett and (3) that the firearm traveled in or affected
Joseph Gabbard. Gabbard and another wit- interstate commerce.
ness, James Lewis, identified the pistol recov-
ered from the house as the one Guidry had United States v. Daugherty, 264 F.3d 513, 515
used in the robbery. Guidry’s fingerprints (5th Cir. 2001). Guidry contests the suffi-
were identified on the pieces of duct tape that ciency of the evidence only as to the second
had been used to bind the witnesses.
A jury convicted Guidry of violating § 922- 1
(...continued)
(g)(1) based on the evidence that he possessed another felony offense. U.S.S.G. §§ 2K2.1(b)(5),
the firearm during the course of the aforemen- 2X1.1(a), 2B3.1(a). The PSR recommended a
tioned robbery, a stipulation that he had previ- two-level increase because a victim sustained bod-
ously been convicted of a qualifying felony, ily injury. Id. § 2B3.1(b)(3)(A). Guidry was fur-
and evidence that the gun had been manufac- ther assessed a six-level increase because he used
tured in Europe. Guidry was sentenced to 120 a firearm to hit a victim in the head, and an addi-
months’ imprisonment under the sentencing tional two-level increase because the victims were
guidelines.1 physically restrained. Id.. § 2B3.1(b)(4)(B). The
total offense level was 30, and with a criminal
history of V, the resulting range was 151-188
months. Guidry did not file an objection to the
1
Guidry’s presentence report (“PSR”) estab- PSR, and the district court adopted its recommen-
lished a base offense level of 20 based on the fact dations. Because 18 U.S.C. § 924(a)(2) provides
that the firearm was possessed in connection with a statutory maximum of 10 years, Guidry was sen-
(continued...) tenced to 120 months in prison.
2
and third elements. After reviewing the evi- dence that the firearm was manufactured in
dence, we find both arguments legally untena- Belgium, so it necessarily must have traveled
ble. in interstate commerce to get into Guidry’s
hands in Texas. The interstate commerce
The government produced sufficient evi- element of a § 922(g)(1) charge is satisfied
dence from which a reasonable jury could con- where the government demonstrates that the
clude, beyond a reasonable doubt, that Guidry firearm was manufactured out of state.3
possessed a firearm. The government pre-
sented the testimony of two eyewitnesses who Finally, Guidry attacks the constitutionality
identified Guidry as a robber, one of whom of his conviction under § 922(g)(1) as applied
identified the pistol that was recovered from to him, arguing that the government had to
Guidry’s home as the one that was used during prove that his possession of a firearm had a
the robbery. “substantial” effect on interstate commerce un-
der United States v. Lopez, 514 U.S. 549
Guidry asserts that we should closely scru- (1995); United States v. Morrison, 529 U.S.
tinize the identification of the weapon because 598 (2000); and Jones v. United States, 529
it was made by a “frightened witness” under- U.S. 848 (2000). As Guidry concedesSShe
going traumatic “extreme circumstances of the notes that he merely raises the issue to pre-
robbery.” It is not our role, however, under serve it for further reviewSSthis argument is
our standard of review for sufficiency of the foreclosed by our precedent.4
evidence, to second-guess the determinations
of the jury as to the credibility of the evidence. III.
See Ortega Reyna, 148 F.3d at 543. Assum- Guidry argues that the eyewitness identifi-
ing, as we must, that the eyewitness identifica- cation testimony should have been suppressed
tion of the weapon was credible, there was because it was impermissibly tainted by a sug-
sufficient evidence of weapon possession to gestive show-up procedure. In reviewing the
prove the second element of § 922(g)(1).2 denial of a suppression motion, we accept the
district court’s findings of fact unless they are
Similarly, the government produced suffi- clearly erroneous, but we review de novo the
cient evidence from which a jury could con- court’s ultimate conclusion of the constitution-
clude beyond a reasonable doubt that the fire- ality of the law enforcement action. See Unit-
arm possessed by Guidry affected interstate
commerce. The government provided evi-
3
See Daugherty, 264 F.3d at 518; see also
United States v. Kuban, 94 F.3d 971 (5th Cir.
2
Guidry is correct in arguing that the fact that 1996) (affirming a § 922(g)(1) conviction where
the weapon was found in a closet in his home is the weapon was manufactured in Belgium and
insufficient to prove constructive possession. Cf. possessed in Texas).
United States v. Fields, 72 F.3d 1200, 1212 (5th
4
Cir. 1996) (holding that constructive possession See United States v. Rawls, 85 F.3d 240, 242
may be proven under § 922(g)(1) if a firearm is (5th Cir. 1996) (“[N]either the holding in Lopez
found in a defendant’s residence, despite the fact nor the reasons given therefor constitutionally in-
that the home was jointly occupied, where the validate § 922(g)(1).”); see also Daugherty, 264
firearm was located in plain view). There was, F.3d at 518 (“Neither Jones nor Morrison affects
however, sufficient evidence of actual possession. or undermines the constitutionality of § 922(g).”).
3
ed States v. Saucedo-Munoz, 307 F.3d 344, not permitted to communicate with each other
351 (5th Cir. 2002). Whether an identification until the procedure was complete. The proce-
is constitutionally admissible is a mixed ques- dure employed was analogous to a typical
tion of fact and law. See United States v. station-house lineup, apart from the situs of
Hefferon, 314 F.3d 211, 217 (5th Cir. 2002). the show-up and the fact that all the suspects
were in handcuffsSSdifferences that did not
The Due Pro cess Clause protects against taint the procedure, given that all the suspects
the use of evidence obtained from imper- were similarly disabled. Under these circum-
missibly suggestive identification procedures. stances, the procedure was not unnecessarily
See United States v. Rogers, 126 F.3d 655, suggestive.5
658 (5th Cir. 1997) (citing Manson v. Brath-
waite, 432 U.S. 98 (1977)). The admissibility Because the procedure was not unnecessar-
of identification evidence is governed by a ily suggestive, we need not consider the sec-
two-step test: First, we determine whether the ond prong of the test, whether there was a
identification procedure was impermissively “substantial likelihood of misidentification.”
suggestive, and second, we ask whether the
procedure posed a “very substantial likelihood
of irreparable misidentification.” Rogers, 126 5
Guidry also summarily states, without discus-
F.3d at 658 (citing United States v. Sanchez, sion, that his situation is similar to those in Foster
988 F.2d 1384, 1389 (5th Cir. 1993)). If we v. California, 394 U.S. 440 (1969), and United
answer both questions in the affirmative, the States v. Watkins, 741 F.2d 692, 694 (5th Cir.
identification is inadmissible. Id. 1984), in which identification procedures were
found to be unnecessarily suggestive, but both cas-
As to the first part of the test, Guidry ar- es are plainly distinguishable. In Foster, the wit-
gues that the show-up was impermissively ness first failed to identify the defendant in a lineup
suggest ive because he was part of a lineup in which the defendant was significantly taller than
outside the restaurant window, handcuffed the other members. See Foster, 394 U.S. at 442-
43. Then, the defendant was put into a one-to-one
aside a patrol car. Guidry relies on United
confrontation with the witness, after which the wit-
States v. Shaw, 894 F.2d 689, 692 (5th Cir. ness was still tentative about identifying him. See
1990), in which we found a show-up to be id. at 443. The defendant was finally identified by
impermissibly suggestive where the suspect the same witness in a subsequent lineup in which
was presented for identification at the crime he was the only member who had participated in
scene alone, handcuffed, and before an FBI the first one. See id. The Court found that the
vehicle. Guidry’s situation is distinguishable, “suggestive elements in this identification proce-
however, because he was not shown alone as dure made it all but inevitable that [the witness]
was the defendant in Shaw; he was displayed would identify petitioner whether or not in fact he
to the eyewitnesses together with four others was ‘the man.’” Id. By contrast, Guidry’s only
who were of the same race, three of whom show-up involved other suspects of similar physi-
were of similar weight and height, and all of cal appearance, and he was independently identi-
whom were in handcuffs and stood in front of fied by two separate witnesses the first and only
time he was displayed. Watkins is distinguishable
a police car.
because it involved a one-one-one show-up as in
Shaw, whereas Guidry was displayed for identifica-
The eyewitnesses were only allowed to tion with four other suspects who were similar in
make their identifications individually and were appearance. See Watkins, 741 F.2d at 694.
4
The district court properly denied Guidry’s the crime scene by Detective Scott Felts, who
suppression motion. testified that he released them to Sells, who in
turn stated that he transported them to the
IV. police department and logged them into the
Guidry argues that the district court erred evidence locker.
in admitting exhibits 4 and 5, because the chain
of custody had been broken. We review The essence of Guidry’s argument is that
admission of evidence for abuse of discretion. the chain of custody was defective because
See United States v. Dixon, 132 F.3d 192, 196 there was insufficient documentation of the
(5th Cir. 1997). In deciding whether to admit evidence’s being passed from officer to officer.
evidence, the district court only has the duty to A district court does not abuse its discretion,
determine whether the government made a however, in admitting evidence that was not
sufficient prima facie showing of authenticity; initialed or signed for as it was transferred, so
the ultimate issue of authenticity is a question long as there is testimony from the officers
for the jury. See United States v. Sparks, establishing their respective links in the chain
2 F.3d 574, 582 (5th Cir. 1993). of custody.7 The fact that the chain of custody
was not perfectly documented was made
Exhibits 4 and 5 were rolls of duct tape and apparent during cross-examination and was
rope twineSSshown through expert testimony proper material for the jury to consider when
to have Guidry’s fingerprints on themSSalleg- deciding how much weight to give to the
ed to have been used by him and his cohorts to evidence. The district court did not abuse its
restrain the victims during the robbery. Guid- discretion in admitting Exhibits 4 and 5.
ry’s brief inaccurately claims that these specific
pieces of evidence were recovered by Officer V.
Ryan Janovsky at the house where he was Guidry argues that the district court gave
arrested.6 In fact, the exhibits were found at improper jury instructions. A properly object-
ed-to instruction is reviewed for abuse of dis-
cretion. See United States v. Daniels, 281
6
Janovsky collected other pieces of evidence,
F.3d 168, 183 (5th Cir. 2002); see also United
including the firearm (Exhibit 3-A) that Guidry
was alleged to have possessed during the robbery.
Guidry mentions in passing that there was “little 6
(...continued)
documentation to establish the chain of custody of discretion in admitting the firearm. See Dixon, 132
the firearm,” but it is not plain from his brief that F.3d at 197 n.6.
he is challenging the admission of this evidence.
7
Even if he is, there was testimony by each officer See id.; see also Sparks, 2 F.3d at 582. In
who handled the firearm, describing how it ulti- fact, the chain of custody demonstrated here is
mately ended up in the evidence lockerSSJanovsky more reliable than that in Sparks, where the initial
testified that he passed the firearm to Officer collecting officer neither documented its collection
Turner, who in turn testified that the handed the with his initials nor testified as to its discovery and
same evidence to Officer Chad Sells, who testified handoff to another officer in the chain of custody.
that he transported it to the police department and See id. (noting that the gap is a matter of the
logged it in as evidence. Even if the documentation weight of the evidenceSSa jury questionSSrather
was incomplete, the district court did not abuse its than admissibility); United States v. Shaw, 920
(continued...) F.2d 1225, 1229-30 (5th Cir. 1991).
5
States v. Ho, 311 F.3d 589, 604 (5th Cir. one state to another, or between any part of
2002). We review de novo whether an in- the United States and any other country.”
struction misstated an element of a statutory
crime. See United States v. Morales-Palacios, The only difference between the instruction
369 F.3d 442, 445 (5th Cir. 2004) (citing Ho, given and the requested instructions is that the
311 F.3d at 605). We consider whether the court added language indicating that travel be-
jury instruction, taken as a whole, “is a correct tween “any part of the United States and any
statement of the law and whether it clearly other country” would also satisfy the interstate
instructs jurors as to the principles of the law commerce element. The court committed no
applicable to the factual issues confronting error in doing so; it was plainly following the
them.” Daniels, 281 F.3d at 183 (internal principles of law in this circuit. See United
citations omitted). States v. Wallace, 889 F.2d 580, 583 (5th Cir.
1989). The “affecting commerce” element of
Guidry objects to the refusal to use the pat- § 922(g)(1) includes both interstate and for-
tern jury charges for a violation of § 922(g)(1), eign commerce. Id. Hence, the instruction
arguing that the instruction given improperly correctly stated the law and plainly instructed
“diluted” the government’s burden of proving the jurors on the factual issues they were
the interstate nexus of the charge. Guidry facing.10
requested that the district court charge the jury
with Fifth Circuit Pattern Jury Instructions VI.
§§1.398 and 2.48,9 but the court gave the Guidry contends there was a fatal variance
following instruction: “That the possession of between the facts alleged in the indictment and
the firearm was in and affecting commerce; the evidence at trial. A defendant cannot
that is, that before the defendant possessed the prevail on such a claim unless he demonstrates
firearm, that it had traveled at some time from that the variance was material and prejudiced
his substantial rights. See United States v.
Mikolajczyk, 137 F.3d 237, 243 (5th Cir.
8
1998). “As long as the defendant receives
Section 1.39 provides the general definition of
notice and is not subject to the risk of double
“interstate commerce,” stating that “[i]nterstate
jeopardy, his substantial rights are not affect-
commerce means commerce or travel between one
state, territory or possession of the United States ed.” Id. (citing Berger v. United States, 295
and another state, territory or possession of the U.S. 78, 83 (1935)). Guidry points to two
United States, including the District of Columbia.” separate variances between the language of his
indictment and the proof used to convict: that
9
Section 2.47 applies specifically to charging (1) although the indictment only alleged that
the jury regarding an alleged violation of 18 U.S.C.
§ 922(g)(1). The relevant portion of the model in-
10
struction, dealing with the element of the crime ad- See Daniels, 281 F.3d at 183. In fact, the
dressing the nexus between the firearm and inter- given instruction arguably did a better job of in-
state commerce, reads: forming the jurors of the applicable law than does
Pattern Jury Instruction § 2.47, which, because of
Third: That the possession of the firearm was in its specificity, might have had the potential to mis-
[affecting] commerce; that is, that before the lead jurors to think that foreign commerce was not
defendant possessed the firearm, it had traveled covered, contrary to the dictates of Wallace, 889
at some time from one state to another. F.2d at 583.
6
he possessed a firearm “in and affecting com- VII.
merce,” the evidence and the jury instructions Guidry argues that his sentence violates his
referred to interstate and foreign commerce; Sixth Amendment right to findings by a jury,
and (2) the specific model of firearm alleged in based on United States v. Booker, 543 U.S.
the complaint varied from the evidence used to ___, 125 S. Ct. 738 (2005), because the dis-
prove the possession element of the trict court assessed sentencing enhancements
§ 922(g)(1) charge. under the then-mandatory sentencing guide-
lines, based on facts that were neither admitted
First, Guidry’s argument that there was a by Guidry nor found by a jury beyond a rea-
variance because the indictment alleged that he sonable doubt. As Guidry concedes, however,
possessed a weapon “in and affecting com- he did not object on this basis in the district
merce,” but the evidence and jury instruction court, so we review for plain error.12
referred to interstate or foreign commerce, is
without merit. As previously mentioned, the Under the plain error standard, we may not
phrase “affecting commerce” in a § 922(g)(1) correct an error that the defendant failed to
charge covers both interstate and foreign com- raise in the district court unless “there is
merce. See Wallace, 889 F.2d at 583. Be- (1) error, (2) that is plain, and (3) that affects
cause the terms are legally equivalent as we substantial rights.” United States v. Cotton,
have interpreted § 922(g)(1), there is no dif- 535 U.S. 625, 631 (2002). “If all three condi-
ference and thus no fatal variance on that tions are met an appellate court may then ex-
ground. ercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the
Secondly, Guidry reasons that there was a fairness, integrity, or public reputation of judi-
fatal variance because the indictment charged cial proceedings.” Id.
him with possessing a “9mm Kurz,” but evi-
dence at trial indicated that he had a “.380- In United States v. Mares, 2005 U.S. App.
caliber pistol.” Assuming arguendo that these LEXIS 3653, at *22-*31 (5th Cir. Mar. 4,
names describe two different types of firearms, 2005), we analyzed whether alleged Booker
such a difference is not material enough to error constituted plain error. As was the situ-
constitute a fatal variance; we have previously ation for the defendant in Mares, Guidry is
held, under almost identical circumstances, correct in asserting that his Sixth Amendment
that the type of weapon possessed is not rights were violated under Booker.
essential to a conviction under § 922(g)(1),
such that a variance in the type of weapon Based solely on his indictment and the
charged in the indictment with the evidence
adduced at trial is not a material constructive
11
amendment that requires vacating a convic- (...continued)
tion.11 which alleged that defendant had 12-gauge shot-
gun, and proof that he possessed 20-gauge model).
12
See United States v. Rios-Quintero, 204 F.3d
11
See United States v. Munoz, 150 F.3d 401, 214, 215 (5th Cir. 2000) (applying plain error
416-17 (5th Cir. 1998) (affirming conviction under standard to review claim not raised in district
§ 922(g)(1) despite variance between indictment, court, based on Supreme Court decision issued
(continued...) after conviction).
7
jury’s findings, Guidry was subject to a sen- different conclusion.” Id. at *28. There is no
tencing range of 63-78 months. At sentencing, reversible error in the sentence.
however, the court made various factual find-
ings that subjected him to increases in his AFFIRMED.
sentencing range to 151-188 months. Because
this assessment occurred before Booker was
issuedSSwhen the application of these en-
hancements were deemed mandatorySSthe
sentencing is constitutionally infirm under the
Sixth Amendment. Mares, id. at *25 (“Under
the mandatory Guideline system in place at the
time of sentencing, [the defendant’s] sentence
was enhanced based on findings made by the
judge that went beyond the facts admitted by
the defendant or found by the jury . . . . [He]
has therefore established Booker error.”).
Moreover, under Mares this kind of error
meets the second prong of the test, because
the error could not be more obvious under
current law. See id. (citing Johnson v. United
States, 520 U.S. 461, 468 (1997)).
Although the Booker error is obvious, it
fails to meet the third prong, which requires
that an error affect substantial rights. For this
prong to be met, it must be shown that the
error prejudiced the proceedings, that it “af-
fected the outcome of the district court pro-
ceedings.” Id. at *26 (citing United States v.
Olano, 507 U.S. 725, 734 (1997)).
The defendant bears the burden of persua-
sion with respect to prejudice. See id. (citing
Olano, 507 U.S. at 734). “[T]he pertinent
question is whether [the defendant] demon-
strated that the sentencing judgeSSsentencing
under an advisory scheme rather than a man-
datory oneSSwould have reached a significant-
ly different result.” Id. at *27-*28. Just as in
Mares, the defendant here fails to meet his
burden, because he cannot point to anything in
the record “from the sentencing judge’s re-
marks or otherwise that gives us any clue as to
whether [the judge] would have reached a
8