United States v. Guidry ( 2023 )

Case: 21-50365 Document: 00516816060 Page: 1 Date Filed: 07/11/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
July 11, 2023
No. 21-50365 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Dwaun Jabbar Guidry,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-831
______________________________
Before Graves, Higginson, and Douglas, Circuit Judges.
Per Curiam: *
Dwaun Jabbar Guidry appeals the district court’s order denying his
successive habeas petition challenging his conviction under 18 U.S.C. §
924(c) in light of United States v. Davis, 139 S. Ct. 2319 (2019). For the
reasons stated herein, we AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-50365 Document: 00516816060 Page: 2 Date Filed: 07/11/2023
No. 21-50365
I.
While working as a police officer in Balcones Heights, Texas, Guidry
was charged in two separate incidents while on duty. Those events were the
sexual assault of five women at the police station and the rape of another
woman in his patrol car after a traffic stop. Guidry was convicted by a jury in
2005 of (1) deprivation of rights under color of law by kidnapping in violation
of 18 U.S.C. § 242; (2) deprivation of rights under color of law by aggravated
sexual abuse in violation of 18 U.S.C. § 242; (3) carrying a firearm during and
in relation to aggravated sexual abuse in violation of 18 U.S.C. §
924(c)(1)(A)(i); and (4) conspiring to deprive persons of their rights under
color of law in violation of 18 U.S.C. § 241. Guidry was sentenced to a total
of 465 months imprisonment: 405 months on each of counts one and two, to
be served concurrently; 60 months on count three, to be served consecutively
to the sentence imposed on counts one, two and four; and 120 months on
count four to be served concurrently with counts one and two. He was also
sentenced to a total of five years of supervised release, five years concurrent
on each of the first three counts, and three years concurrent on count four,
restitution of $45,638, and a $400 mandatory assessment.
On direct appeal, this court affirmed Guidry’s conviction on all four
counts. See United States v. Guidry, 456 F.3d 493 (5th Cir. 2006). Guidry’s
initial habeas petition, which raised claims of ineffective assistance of
counsel, was denied in 2008. Guidry later timely sought and was denied leave
to file a successive petition in light of Johnson v. United States, 576 U.S. 591,
597-98 (2015), and Welch v. United States, 578 U.S. 120, 135 (2016).
2
Case: 21-50365 Document: 00516816060 Page: 3 Date Filed: 07/11/2023
No. 21-50365
Of particular relevance here, this court granted Guidry permission in
2020 to file a successive 28 U.S.C. § 2255 motion to challenge his count three
conviction under 18 U.S.C. § 924(c) in light of Davis, 139 S. Ct. 2319. ECF
19-51147, 17. The district court denied Guidry’s motion in part and
dismissed without prejudice in part. The district court also granted a
certificate of appealability (COA) as to Guidry’s § 924(c) claim. Guidry then
filed this appeal.
II.
Guidry asserts that the district court erred in denying his challenge to
his conviction under 18 U.S.C. § 924(c)(3)(A) based on Davis, 139 S. Ct.
2319. Guidry asserts that his conviction under § 924(c)(1)(A)(i) of carrying
a firearm during and in relation to aggravated sexual abuse should be vacated
for essentially two reasons: Because Davis concluded that the residual clause
of § 924(c)(3)(B) is unconstitutionally vague; and because his predicate
crime did not qualify as a COV under the elements clause of § 924(c)(3)(A). 1
However, Guidry’s argument is foreclosed by the law of the case doctrine.
See Tollett v. City of Kemah, 285 F.3d 357, 363 (5th Cir. 2002) (citation
omitted) (“Under the law of the case doctrine, an issue of law or fact decided
on appeal may not be reexamined either by the district court on remand or by
the appellate court on a subsequent appeal.”).
In denying Guidry’s motion for authorization to file a successive
habeas petition in 2016, a panel of this court relied on United States v.
_____________________
1
Guidry also asserts that he was convicted under § 242, not § 2241(a).
3
Case: 21-50365 Document: 00516816060 Page: 4 Date Filed: 07/11/2023
No. 21-50365
Williams, 343 F.3d 423, 432 & n.5 (5th Cir. 2003) in concluding that “the
crime charged in count two satisfied the requirements for a crime of violence
as set out in § 924(c)(3)(A) without requiring resort to the residual clause of
§ 924(c)(3)(B).” ECF 16-50208, 47-2. Further, Guidry fails to argue for any
exception to the law of the case doctrine. Thus, we will not reexamine this
issue.
Accordingly, the order of the district court is AFFIRMED; and
Guidry’s pro se motion to correct the brief that was carried with the case is
DENIED as moot.
4