United States v. Guidry

United States Court of Appeals
Fifth Circuit
F I L E D
April 6, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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
BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Donald Guidry challenges his conviction of
violating 18 U.S.C. § 922(g)(1), the felon in
possession of a firearm statute. Finding no re-
versible error, we affirm.
I.
The conviction is based on the robbery of a
barbeque restaurant during the course of
which the owner was struck in the back of the
head with a weapon, and the employees and
customers were bound with duct tape and rope
and left in the bathroom. After the robbers
left, the victims freed themselves and called
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”

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2
tattoo by his left eye, the investigating officers
believed that Guidry was involved. They im-
mediately dispatched officers to a house where
Guidry was known to be.
When the officers arrived, Guidry fled into
the house but was subsequently detained. Af-
ter the owner gave consent to search the
house, officers discovered a shotgun, pistol,
clothes matching those that the assailant called
“D.P.” wore during the robbery, and a box
containing one-dollar bills that had a strong
smell of barbeque smoke. Guidry and four
other black male residents of the house were
seized by the police and taken back to the
crime scene.
Upon returning to the restaurant, the police
lined up the five suspects in handcuffs, against
the patrol cars outside the window of the res-
taurant. Guidry was identified as an assailant
by two eyewitnesses, Allyssa Plunkett and
Joseph Gabbard. Gabbard and another wit-
ness, James Lewis, identified the pistol recov-
ered from the house as the one Guidry had
used in the robbery. Guidry’s fingerprints
were identified on the pieces of duct tape that
had been used to bind the witnesses.
A jury convicted Guidry of violating § 922-
(g)(1) based on the evidence that he possessed
the firearm during the course of the aforemen-
tioned robbery, a stipulation that he had previ-
ously been convicted of a qualifying felony,
and evidence that the gun had been manufac-
tured in Europe. Guidry was sentenced to 120
months’ imprisonment under the sentencing
guidelines.1
II.
Guidry argues that the evidence was insuffi-
cient to support a conviction. We must decide
whether a rational trier of fact could have
found that each element of the charged crim-
inal offense was proven beyond a reasonable
doubt. See United States v. Ortega Reyna,
148 F.3d 540, 543 (5th Cir. 1998). We con-
sider all the evidence in a light most favorable
to the government, drawing all inferences and
credibility choices in its favor. Id.
To establish a violation of § 922(g)(1), the
government has the burden to prove three ele-
ments beyond a reasonable doubt
(1) that the defendant previously had been
convicted of a felony;
(2) that he possessed a firearm; and
(3) that the firearm traveled in or affected
interstate commerce.
United States v. Daugherty, 264 F.3d 513, 515
(5th Cir. 2001). Guidry contests the suffi-
ciency of the evidence only as to the second
1 Guidry’s presentence report (“PSR”) estab-
lished a base offense level of 20 based on the fact
that the firearm was possessed in connection with
(continued...)
1(...continued)
another felony offense. U.S.S.G. §§ 2K2.1(b)(5),
2X1.1(a), 2B3.1(a). The PSR recommended a
two-level increase because a victim sustained bod-
ily injury. Id. § 2B3.1(b)(3)(A). Guidry was fur-
ther assessed a six-level increase because he used
a firearm to hit a victim in the head, and an addi-
tional two-level increase because the victims were
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
PSR, and the district court adopted its recommen-
dations. Because 18 U.S.C. § 924(a)(2) provides
a statutory maximum of 10 years, Guidry was sen-
tenced to 120 months in prison.

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3
and third elements. After reviewing the evi-
dence, we find both arguments legally untena-
ble.
The government produced sufficient evi-
dence from which a reasonable jury could con-
clude, beyond a reasonable doubt, that Guidry
possessed a firearm. The government pre-
sented the testimony of two eyewitnesses who
identified Guidry as a robber, one of whom
identified the pistol that was recovered from
Guidry’s home as the one that was used during
the robbery.
Guidry asserts that we should closely scru-
tinize the identification of the weapon because
it was made by a “frightened witness” under-
going traumatic “extreme circumstances of the
robbery.” It is not our role, however, under
our standard of review for sufficiency of the
evidence, to second-guess the determinations
of the jury as to the credibility of the evidence.
See Ortega Reyna, 148 F.3d at 543. Assum-
ing, as we must, that the eyewitness identifica-
tion of the weapon was credible, there was
sufficient evidence of weapon possession to
prove the second element of § 922(g)(1).2
Similarly, the government produced suffi-
cient evidence from which a jury could con-
clude beyond a reasonable doubt that the fire-
arm possessed by Guidry affected interstate
commerce. The government provided evi-
dence that the firearm was manufactured in
Belgium, so it necessarily must have traveled
in interstate commerce to get into Guidry’s
hands in Texas. The interstate commerce
element of a § 922(g)(1) charge is satisfied
where the government demonstrates that the
firearm was manufactured out of state.3
Finally, Guidry attacks the constitutionality
of his conviction under § 922(g)(1) as applied
to him, arguing that the government had to
prove that his possession of a firearm had a
“substantial” effect on interstate commerce un-
der United States v. Lopez, 514 U.S. 549
(1995); United States v. Morrison, 529 U.S.
598 (2000); and Jones v. United States, 529
U.S. 848 (2000). As Guidry concedesSShe
notes that he merely raises the issue to pre-
serve it for further reviewSSthis argument is
foreclosed by our precedent.4
III.
Guidry argues that the eyewitness identifi-
cation testimony should have been suppressed
because it was impermissibly tainted by a sug-
gestive show-up procedure. In reviewing the
denial of a suppression motion, we accept the
district court’s findings of fact unless they are
clearly erroneous, but we review de novo the
court’s ultimate conclusion of the constitution-
ality of the law enforcement action. See Unit-
2 Guidry is correct in arguing that the fact that
the weapon was found in a closet in his home is
insufficient to prove constructive possession. Cf.
United States v. Fields, 72 F.3d 1200, 1212 (5th
Cir. 1996) (holding that constructive possession
may be proven under § 922(g)(1) if a firearm is
found in a defendant’s residence, despite the fact
that the home was jointly occupied, where the
firearm was located in plain view). There was,
however, sufficient evidence of actual possession.
3 See Daugherty, 264 F.3d at 518; see also
United States v. Kuban, 94 F.3d 971 (5th Cir.
1996) (affirming a § 922(g)(1) conviction where
the weapon was manufactured in Belgium and
possessed in Texas).
4 See United States v. Rawls, 85 F.3d 240, 242
(5th Cir. 1996) (“[N]either the holding in Lopez
nor the reasons given therefor constitutionally in-
validate § 922(g)(1).”); see also Daugherty, 264
F.3d at 518 (“Neither Jones nor Morrison affects
or undermines the constitutionality of § 922(g).”).

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4
ed States v. Saucedo-Munoz, 307 F.3d 344,
351 (5th Cir. 2002). Whether an identification
is constitutionally admissible is a mixed ques-
tion of fact and law. See United States v.
Hefferon, 314 F.3d 211, 217 (5th Cir. 2002).
The Due Pro cess Clause protects against
the use of evidence obtained from imper-
missibly suggestive identification procedures.
See United States v. Rogers, 126 F.3d 655,
658 (5th Cir. 1997) (citing Manson v. Brath-
waite, 432 U.S. 98 (1977)). The admissibility
of identification evidence is governed by a
two-step test: First, we determine whether the
identification procedure was impermissively
suggestive, and second, we ask whether the
procedure posed a “very substantial likelihood
of irreparable misidentification.” Rogers, 126
F.3d at 658 (citing United States v. Sanchez,
988 F.2d 1384, 1389 (5th Cir. 1993)). If we
answer both questions in the affirmative, the
identification is inadmissible. Id.
As to the first part of the test, Guidry ar-
gues that the show-up was impermissively
suggest ive because he was part of a lineup
outside the restaurant window, handcuffed
aside a patrol car. Guidry relies on United
States v. Shaw, 894 F.2d 689, 692 (5th Cir.
1990), in which we found a show-up to be
impermissibly suggestive where the suspect
was presented for identification at the crime
scene alone, handcuffed, and before an FBI
vehicle. Guidry’s situation is distinguishable,
however, because he was not shown alone as
was the defendant in Shaw; he was displayed
to the eyewitnesses together with four others
who were of the same race, three of whom
were of similar weight and height, and all of
whom were in handcuffs and stood in front of
a police car.
The eyewitnesses were only allowed to
make their identifications individually and were
not permitted to communicate with each other
until the procedure was complete. The proce-
dure employed was analogous to a typical
station-house lineup, apart from the situs of
the show-up and the fact that all the suspects
were in handcuffsSSdifferences that did not
taint the procedure, given that all the suspects
were similarly disabled. Under these circum-
stances, the procedure was not unnecessarily
suggestive.5
Because the procedure was not unnecessar-
ily suggestive, we need not consider the sec-
ond prong of the test, whether there was a
“substantial likelihood of misidentification.”
5 Guidry also summarily states, without discus-
sion, that his situation is similar to those in Foster
v. California, 394 U.S. 440 (1969), and United
States v. Watkins, 741 F.2d 692, 694 (5th Cir.
1984), in which identification procedures were
found to be unnecessarily suggestive, but both cas-
es are plainly distinguishable. In Foster, the wit-
ness first failed to identify the defendant in a lineup
in which the defendant was significantly taller than
the other members. See Foster, 394 U.S. at 442-
43. Then, the defendant was put into a one-to-one
confrontation with the witness, after which the wit-
ness was still tentative about identifying him. See
id. at 443. The defendant was finally identified by
the same witness in a subsequent lineup in which
he was the only member who had participated in
the first one. See id. The Court found that the
“suggestive elements in this identification proce-
dure made it all but inevitable that [the witness]
would identify petitioner whether or not in fact he
was ‘the man.’” Id. By contrast, Guidry’s only
show-up involved other suspects of similar physi-
cal appearance, and he was independently identi-
fied by two separate witnesses the first and only
time he was displayed. Watkins is distinguishable
because it involved a one-one-one show-up as in
Shaw, whereas Guidry was displayed for identifica-
tion with four other suspects who were similar in
appearance. See Watkins, 741 F.2d at 694.

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5
The district court properly denied Guidry’s
suppression motion.
IV.
Guidry argues that the district court erred
in admitting exhibits 4 and 5, because the chain
of custody had been broken. We review
admission of evidence for abuse of discretion.
See United States v. Dixon, 132 F.3d 192, 196
(5th Cir. 1997). In deciding whether to admit
evidence, the district court only has the duty to
determine whether the government made a
sufficient prima facie showing of authenticity;
the ultimate issue of authenticity is a question
for the jury. See United States v. Sparks,
2 F.3d 574, 582 (5th Cir. 1993).
Exhibits 4 and 5 were rolls of duct tape and
rope twineSSshown through expert testimony
to have Guidry’s fingerprints on themSSalleg-
ed to have been used by him and his cohorts to
restrain the victims during the robbery. Guid-
ry’s brief inaccurately claims that these specific
pieces of evidence were recovered by Officer
Ryan Janovsky at the house where he was
arrested.6 In fact, the exhibits were found at
the crime scene by Detective Scott Felts, who
testified that he released them to Sells, who in
turn stated that he transported them to the
police department and logged them into the
evidence locker.
The essence of Guidry’s argument is that
the chain of custody was defective because
there was insufficient documentation of the
evidence’s being passed from officer to officer.
A district court does not abuse its discretion,
however, in admitting evidence that was not
initialed or signed for as it was transferred, so
long as there is testimony from the officers
establishing their respective links in the chain
of custody.7 The fact that the chain of custody
was not perfectly documented was made
apparent during cross-examination and was
proper material for the jury to consider when
deciding how much weight to give to the
evidence. The district court did not abuse its
discretion in admitting Exhibits 4 and 5.
V.
Guidry argues that the district court gave
improper jury instructions. A properly object-
ed-to instruction is reviewed for abuse of dis-
cretion. See United States v. Daniels, 281
F.3d 168, 183 (5th Cir. 2002); see also United 6 Janovsky collected other pieces of evidence,
including the firearm (Exhibit 3-A) that Guidry
was alleged to have possessed during the robbery.
Guidry mentions in passing that there was “little
documentation to establish the chain of custody of
the firearm,” but it is not plain from his brief that
he is challenging the admission of this evidence.
Even if he is, there was testimony by each officer
who handled the firearm, describing how it ulti-
mately ended up in the evidence lockerSSJanovsky
testified that he passed the firearm to Officer
Turner, who in turn testified that the handed the
same evidence to Officer Chad Sells, who testified
that he transported it to the police department and
logged it in as evidence. Even if the documentation
was incomplete, the district court did not abuse its
(continued...)
6(...continued)
discretion in admitting the firearm. See Dixon, 132
F.3d at 197 n.6.
7 See id.; see also Sparks, 2 F.3d at 582. In
fact, the chain of custody demonstrated here is
more reliable than that in Sparks, where the initial
collecting officer neither documented its collection
with his initials nor testified as to its discovery and
handoff to another officer in the chain of custody.
See id. (noting that the gap is a matter of the
weight of the evidenceSSa jury questionSSrather
than admissibility); United States v. Shaw, 920
F.2d 1225, 1229-30 (5th Cir. 1991).

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6
States v. Ho, 311 F.3d 589, 604 (5th Cir.
2002). We review de novo whether an in-
struction misstated an element of a statutory
crime. See United States v. Morales-Palacios,
369 F.3d 442, 445 (5th Cir. 2004) (citing Ho,
311 F.3d at 605). We consider whether the
jury instruction, taken as a whole, “is a correct
statement of the law and whether it clearly
instructs jurors as to the principles of the law
applicable to the factual issues confronting
them.” Daniels, 281 F.3d at 183 (internal
citations omitted).
Guidry objects to the refusal to use the pat-
tern jury charges for a violation of § 922(g)(1),
arguing that the instruction given improperly
“diluted” the government’s burden of proving
the interstate nexus of the charge. Guidry
requested that the district court charge the jury
with Fifth Circuit Pattern Jury Instructions
§§1.398 and 2.48,9 but the court gave the
following instruction: “That the possession of
the firearm was in and affecting commerce;
that is, that before the defendant possessed the
firearm, that it had traveled at some time from
one state to another, or between any part of
the United States and any other country.”
The only difference between the instruction
given and the requested instructions is that the
court added language indicating that travel be-
tween “any part of the United States and any
other country” would also satisfy the interstate
commerce element. The court committed no
error in doing so; it was plainly following the
principles of law in this circuit. See United
States v. Wallace, 889 F.2d 580, 583 (5th Cir.
1989). The “affecting commerce” element of
§ 922(g)(1) includes both interstate and for-
eign commerce. Id. Hence, the instruction
correctly stated the law and plainly instructed
the jurors on the factual issues they were
facing.10
VI.
Guidry contends there was a fatal variance
between the facts alleged in the indictment and
the evidence at trial. A defendant cannot
prevail on such a claim unless he demonstrates
that the variance was material and prejudiced
his substantial rights. See United States v.
Mikolajczyk, 137 F.3d 237, 243 (5th Cir.
1998). “As long as the defendant receives
notice and is not subject to the risk of double
jeopardy, his substantial rights are not affect-
ed.” Id. (citing Berger v. United States, 295
U.S. 78, 83 (1935)). Guidry points to two
separate variances between the language of his
indictment and the proof used to convict: that
(1) although the indictment only alleged that
8 Section 1.39 provides the general definition of
“interstate commerce,” stating that “[i]nterstate
commerce means commerce or travel between one
state, territory or possession of the United States
and another state, territory or possession of the
United States, including the District of Columbia.”
9 Section 2.47 applies specifically to charging
the jury regarding an alleged violation of 18 U.S.C.
§ 922(g)(1). The relevant portion of the model in-
struction, dealing with the element of the crime ad-
dressing the nexus between the firearm and inter-
state commerce, reads:
Third: That the possession of the firearm was in
[affecting] commerce; that is, that before the
defendant possessed the firearm, it had traveled
at some time from one state to another.
10 See Daniels, 281 F.3d at 183. In fact, the
given instruction arguably did a better job of in-
forming the jurors of the applicable law than does
Pattern Jury Instruction § 2.47, which, because of
its specificity, might have had the potential to mis-
lead jurors to think that foreign commerce was not
covered, contrary to the dictates of Wallace, 889
F.2d at 583.

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7
he possessed a firearm “in and affecting com-
merce,” the evidence and the jury instructions
referred to interstate and foreign commerce;
and (2) the specific model of firearm alleged in
the complaint varied from the evidence used to
prove the possession element of the
§ 922(g)(1) charge.
First, Guidry’s argument that there was a
variance because the indictment alleged that he
possessed a weapon “in and affecting com-
merce,” but the evidence and jury instruction
referred to interstate or foreign commerce, is
without merit. As previously mentioned, the
phrase “affecting commerce” in a § 922(g)(1)
charge covers both interstate and foreign com-
merce. See Wallace, 889 F.2d at 583. Be-
cause the terms are legally equivalent as we
have interpreted § 922(g)(1), there is no dif-
ference and thus no fatal variance on that
ground.
Secondly, Guidry reasons that there was a
fatal variance because the indictment charged
him with possessing a “9mm Kurz,” but evi-
dence at trial indicated that he had a “.380-
caliber pistol.” Assuming arguendo that these
names describe two different types of firearms,
such a difference is not material enough to
constitute a fatal variance; we have previously
held, under almost identical circumstances,
that the type of weapon possessed is not
essential to a conviction under § 922(g)(1),
such that a variance in the type of weapon
charged in the indictment with the evidence
adduced at trial is not a material constructive
amendment that requires vacating a convic-
tion.11
VII.
Guidry argues that his sentence violates his
Sixth Amendment right to findings by a jury,
based on United States v. Booker, 543 U.S.
___, 125 S. Ct. 738 (2005), because the dis-
trict court assessed sentencing enhancements
under the then-mandatory sentencing guide-
lines, based on facts that were neither admitted
by Guidry nor found by a jury beyond a rea-
sonable doubt. As Guidry concedes, however,
he did not object on this basis in the district
court, so we review for plain error.12
Under the plain error standard, we may not
correct an error that the defendant failed to
raise in the district court unless “there is
(1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Cotton,
535 U.S. 625, 631 (2002). “If all three condi-
tions are met an appellate court may then ex-
ercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judi-
cial proceedings.” Id.
In United States v. Mares, 2005 U.S. App.
LEXIS 3653, at *22-*31 (5th Cir. Mar. 4,
2005), we analyzed whether alleged Booker
error constituted plain error. As was the situ-
ation for the defendant in Mares, Guidry is
correct in asserting that his Sixth Amendment
rights were violated under Booker.
Based solely on his indictment and the
11 See United States v. Munoz, 150 F.3d 401,
416-17 (5th Cir. 1998) (affirming conviction under
§ 922(g)(1) despite variance between indictment,
(continued...)
11(...continued)
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
214, 215 (5th Cir. 2000) (applying plain error
standard to review claim not raised in district
court, based on Supreme Court decision issued
after conviction).

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8
jury’s findings, Guidry was subject to a sen-
tencing range of 63-78 months. At sentencing,
however, the court made various factual find-
ings that subjected him to increases in his
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
different conclusion.” Id. at *28. There is no
reversible error in the sentence.
AFFIRMED.

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