Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Pursuant to a plea agreement, Markham Guidry pleaded guilty to multiple counts of possession and distribution of cocaine and cocaine base and one count of criminal forfeiture. In its pre-sentence report (PSR), the probation officer recommended a base offense level of 28 and a Category I criminal history, which yielded a guideline range of 78-97 months. The government objected to the PSR, arguing that Guidry was responsible for far more cocaine than the PSR suggested. The government’s calculations set Guidry’s base offense level at 40 and his guideline range at 292-365 months. At the sentencing hearing, the district court heard testimony from two witnesses, Harold Savoy and Alan West, that they had each purchased large quantities of cocaine from Guidry. After receiving this testimony, the district court suspended the sentencing hearing to address a motion by the government for a determination of whether Guidry’s counsel had a conflict of interest. Pursuant to United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), the district court held a hearing, determined that a conflict of interest did exist, and granted Guidry time to find a new attorney. After Guidry had secured a new attorney, the district court resumed the sentencing hearing. Based on the testimony of Savoy and West, the district court found that Guidry’s base offense level was 38 and that his guideline range was therefore 235-293 months. The district court then went on to explain that it would not be giving a guideline sentence in light of the circumstances of the case and the factors identified in 18 U.S.C. �3553(a). In particular, the district court found that Guidry was not a “full-time full-fledged drug dealer” and that he was supporting his family. As an additional reason for giving a nonguideline sentence, the district court also stated that there was some question about whether, before Guidry pleaded guilty, his original counsel adequately explained to him that he might be held responsible for dealing with substantially more cocaine than was charged in the indictment. The district court then imposed a sentence of 120 months. HOLDING:Vacated and remanded. The district court’s reasoning reflects multiple clearly erroneous factual determinations, the court states. First, when reviewing Guidry’s criminal history, the district court noted that he had a prior battery conviction but mistakenly stated that this conviction resulted from an altercation he had with the arresting officer. While Guidry did assault his arresting officer, the victim of the battery listed in the PSR was Guidry’s girlfriend, and the event was apparently unrelated to the instant offense. Second, when assessing the need to protect the public from further crimes by Guidry, the district court focused on what it considered Guidry’s scant criminal history, but it failed to acknowledge that Guidry has a history of recidivism in that he was on state parole for a drug conviction at the time of many of the events charged in the indictment. Third, and perhaps most importantly, the district court’s finding that Guidry was not a “full-time full-fledged drug dealer” is belied by the events recounted in the PSR and the testimony of Savoy and West at the sentencing hearing, which the district court specifically found credible. According to the PSR, Guidry was dealing crack cocaine as early as 1996, and Savoy and West testified that they regularly purchased drugs from Guidry for months-long periods of time. These clearly erroneous factual determinations infected the district court’s balancing of the 18 U.S.C. �3553(a) factors and provide an insufficient basis for imposing a nonguideline sentence. The district court also noted that Guidry supported his family and stated it would take this fact into account “when determining the need to promote respect for the law and to provide just punishment for the offense.” “In sentencing a defendant . . . family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted.” U.S.S.G. �5H1.6. The district court is supposed to consider such policy statements by the Sentencing Commission. 18 U.S.C. �3553(a)(5)(A). The district court failed to acknowledge the policy statement or to give any indication that Guidry’s family ties are somehow extraordinary such that the policy statement would not apply. By ignoring the policy statement, the district court failed to give significant weight to a �3553(a) factor, further making its non-guideline sentence unreasonable. As an “additional reason” for going outside the guideline range, the district court expressed doubt that Guidry “had a full and complete understanding” that he could be held accountable for relevant conduct and receive a sentence more than three times longer than he would have received had he been sentenced only for the drug quantities charged in the indictment. The court explained that it did not believe that sentencing him in light of all his relevant conduct would promote respect for the law or provide a just punishment for the offense under these circumstances. Whether a defendant has received constitutionally ineffective counsel is not a relevant sentencing factor. United States v. Young, 315 F.3d 911 (8th Cir. 2003). Constitutionally adequate but less than perfect counsel is also not a factor that may justify a non-Guideline sentence. The court holds that the sentence is unreasonable. OPINION:Emilio M. Garza, J.; Smith, Garza and Clement, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.