United States v. Alex Guerrier

659 F. App'x 544
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 31, 2016
Docket15-10787, 15-10790
StatusUnpublished

This text of 659 F. App'x 544 (United States v. Alex Guerrier) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alex Guerrier, 659 F. App'x 544 (11th Cir. 2016).

Opinion

PER CURIAM:

In this consolidated appeal, co-conspirators Alex Guerrier and Robin Guillaume appeal their convictions and sentences— after pleading guilty to conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1) and 846, and for discharging a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(l)(A)(iii). No reversible error has been shown; we affirm.

I.

First, we reject Guerrier’s contention that he pleaded guilty only to the lesser-included offense of possessing a firearm in furtherance of a drug trafficking offense, under 18 U.S.C. § 924(c)(1)(A)(i), not to discharging a firearm in furtherance of a drug trafficking offense, under section 924(c)(l)(A)(iii). Guerrier’s indictment, plea agreement, and presentence investigation report (“PSI”), as well as the district court’s comments during sentencing, all refer expressly to Guerrier’s offense as being a violation of section 18 U.S.C. § 924(c) (1) (A) (iii). Furthermore, the record demonstrates clearly that the parties contemplated—and that Guerrier understood—that Guerrier was facing a 10-year mandatory minimum sentence, consistent with a violation of section 924(c)(1)(A)(iii).

In the alternative, Guerrier argues'that, to the extent he pleaded guilty to a violation of section 924(c)(l)(A)(iii), his guilty plea was not knowing and voluntary. Because Guerrier failed to file written objections to the magistrate judge’s report and recommendation (which recommended that the district court accept Guerrier’s knowing and voluntary guilty plea), Guerrier has waived his challenge to the validity of his guilty plea. See Fed. R. Crim. P. 59(b)(2); United States v. Garcia-Sandobal, 708 F.3d 1278, 1282-83 (11th Cir. 2013); United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007) (en banc).

II.

Guerrier next argues that the district court erred by imposing a two-level sentencing enhancement, pursuant to U.S.S.G. § 2Dl.l(b)(12), for maintaining a premises for the purpose of manufacturing or distributing drugs. Guerrier raised no objection at sentencing; we review this issue only for plain error. See United States v. Maddox, 803 F.3d 1215, 1223 (11th Cir. 2015).

Both the stipulated factual basis for Gu-errier’s guilty plea and Guerrier’s PSI provided that, during the conspiracy, Guerrier used his residence as a “stash house” from which he distributed drugs. Guerrier made no objection to these facts contained in the PSI; thus, the facts are deemed admitted for purposes of sentencing. See United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006). Furthermore, evidence recovered from Guerrier’s residence—including several kinds of drugs, three guns, two digital scales, and a metal grinder— supports a finding that distribution of drugs was one of the “primary or principal uses” of the house. See U.S.S.G. § 2D1.1, comment, (n.17). On this record, the dis *547 trict court committed no plain error in imposing a sentencing enhancement under section 2Dl.l(b)(12).

III.

On appeal, Guillaume challenges his above-guidelines sentence as both procedurally and substantively unreasonable. *

A.

A sentence may be procedurally unreasonable if the district court calculates incorrectly the guidelines range, treats the guidelines as mandatory, fails to consider the 18 U.S.C. § 3553(a) factors, chooses a sentence based on clearly erroneous facts, or fails to explain the chosen sentence. United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). Guillaume has failed to demonstrate that his sentence is procedurally unsound.

First, the' district court committed no clear error in finding, by a preponderance of the evidence, that Guillaume was responsible for gunshot injuries sustained by two police officers during Guillaume’s arrest. Guillaume concedes that he fired a single shot as police officers attempted to enter the stash house, but he contends that at least one of the officers was injured by weapon fire coming from police officers. The district court, however, accepted testimony from the injured officers that multiple shots were fired from inside the house. Because the officers’ testimony was not “exceedingly improbable” such that “no reasonable factfinder could accept it,” we accept the district court’s credibility determination. See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (emphasis in original). Also, even under Guillaume’s version of the facts, Guill-aume’s shooting was at least the proximate cause of both officers’ injuries. Thus, Guill-aume has not shown that the district court relied on clearly erroneous facts in selecting a sentence based in part on Guill-aume’s responsibility for serious injuries to two officers.

We also reject Guillaume’s argument that the district court erred by permitting the two injured officers to testify as “crime victims” under the Crime Victims’ Rights Act, 18 U.S.C § 3771 (“CVRA”). The CVRA defines “crime victim” broadly to include “a person directly and proximately harmed as a result of the commission of a federal offense.” 18 U.S.C. § 3771(e). Nothing evidences that police officers are categorically excluded from the definition of “crime victim.” Nor does Guillaume deny that the injured officers suffered direct or proximate harm as a result of his offense. The injured officers’ testimony about the extent and severity of their injuries was pertinent to the district court’s consideration of whether an above-guidelines sentence was warranted. And the district court has broad discretion to consider diverse evidence at sentencing. See 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”).

Guillaume also argues that the district court erred procedurally in departing upward under U.S.S.G. § 5K2.2 instead of applying an upward adjustment under U.S.S.G. § 3A1.2.

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Bluebook (online)
659 F. App'x 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alex-guerrier-ca11-2016.