United States v. Guidry , 325 F. App'x 318 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 24, 2009
No. 08-30588
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARKHAM JOSEPH GUIDRY, SR
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:03-CR-60009-1
Before KING, GARWOOD and BARKSDALE, Circuit Judges.
PER CURIAM:*
On remand for resentencing pursuant to our opinion in United States v.
Guidry, 462 F.3d 373 (5th Cir. 2006), Markham Joseph Guidry, Sr., was
sentenced on June 9, 2008 to 235 months of imprisonment and four years of
supervised release on all counts to run concurrently. The resentencing followed,
and was expressly imposed by the district court in light of Gall v. United States,
128 S.Ct. 586 (2007). Guidry appeals his new sentence, arguing that in light of
the Supreme Court decision in Gall, rendered after our remand, the district
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
court’s original April 2005 below guidelines sentence of 120 months was not an
abuse of discretion and that on remand the district court erred by resentencing
him within the guideline range to 235 months. He contends that we should
vacate the new sentence and order that the original sentence of 120 months be
imposed.
Guidry argues that our opinion in Guidry I focused on whether the district
court had properly considered relevant factors or relied on impermissible factors
under 18 U.S.C. § 3553(a). He contends that Gall has removed these
considerations and has called into question our prior ruling. He argues that his
initial sentence of 120 months was a permissible sentence, based on facts
originally determined by the district court that no longer require “extraordinary
circumstances” after Gall.
In Gall, 128 S. Ct. at 596–97, the Supreme Court established a bifurcated
process for conducting a reasonableness review. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Pursuant to Gall, we must
determine whether the district court committed any procedural errors, “such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence -- including an explanation for any deviation from the
Guidelines range.” Gall, 128 S. Ct. at 597. If the district court’s decision is
procedurally sound, we will “consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard . . . tak[ing] into
account the totality of the circumstances.” Id.A post-Booker discretionary sentence imposed within a properly calculated
guideline range is entitled to an appellate rebuttable presumption of
reasonableness. Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United
2
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). If the district court imposes
a sentence within a properly calculated guidelines range, we “will infer that the
judge has considered all the factors for a fair sentence set forth in the
Guidelines.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). In such
cases, “it will be rare for a reviewing court to say such a sentence is
‘unreasonable,’” and “little explanation is required.” Id.Guidry has not challenged his new sentence procedurally by arguing any
error in the calculation of the advisory guideline range or other asserted
procedural error. Guidry has not attempted to rebut the appellate presumption
of reasonableness of his within-guideline sentence. The original 120-month
sentence is not subject to review in this appeal. The issue is whether the district
court erred under Gall in imposing the new 235-month sentence.
The Supreme Court has expressly rejected an appellate rule that requires
extraordinary circumstances to justify a sentence outside the Guidelines range.
See Gall, 128 S. Ct. at 595; see also United States v. Rodriguez-Rodriguez, 530
F.3d 381, 388 (5th Cir. 2008) (“We recognize that certain of our opinions have
arguably supported the view, rejected in Gall, that we may, at least in certain
instances, require district courts to find extraordinary circumstances before they
impose sentences outside of the guidelines range.”). On remand, the district
court specifically articulated its awareness and application of this effect of Gall
and expressly did take Guidry’s family circumstances into account without
requiring a showing that the factor was “extraordinary.” The district court
determined that Guidry’s family circumstances did not weigh in favor of
imposing a below guideline sentence because, although Guidry had created a
3
positive relationship with his present family, he had problems of the criminal
neglect of family in the past.1
Guidry’s within-guidelines sentence is entitled to an appellate rebuttable
presumption of reasonableness. Rita, 127 S. Ct. at 2462; Alonzo, 435 F.3d at
554. Guidry has failed to rebut this presumption and has failed to show that the
presumption should not apply or that the district court abused its discretion in
its sentencing decision. The district court did not abuse its discretion in
imposing a sentence within the advisory guideline range. Gall, 128 S. Ct. at 597.
AFFIRMED.
1
And, the district court acknowledged a number of factual errors on its part in
connection with the original sentencing which were noted in our remand opinion as being
“clearly erroneous factual determinations.” Guidry, at 376-77.
4