United States v. Guidry

406 F.3d 314, 2005 U.S. App. LEXIS 5607, 2005 WL 768764
Court of Appeals for the Fifth Circuit·Decided April 6, 2005·No. 04-40425·Published·Cited by 100 cases

Opinion

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 reversible 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” tattoo by his left eye, the investigating officers believed that Guidry was involved. They immediately dispatched officers to a house where Guidry was known to be.

When the officers arrived, Guidry fled into the house but was subsequently detained. After 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 réstaurant. Guidry was identified as an assailant by two eyewitnesses, Allyssa Plunkett and Joseph Gab-bard. Gabbard and another witness, James Lewis, identified the pistol recovered 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 aforementioned robbery, a stipulation that he had previously been convicted of a qualifying felony, and evidence that the gun had been manufactured in Europe. Guidry was sentenced to 120 months’ imprisonment under the sentencing guidelines. 1

II.

Guidry argues that the evidence was insufficient to support a conviction. *318 We must decide whether a rational trier of fact could have found that each element of the charged criminal offense was proven beyond a reasonable doubt. See United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.1998). We consider 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 elements 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 sufficiency of the evidence only as to the second and third elements. After reviewing the evidence, we find both arguments legally untenable.

The government produced sufficient evidence from which a reasonable jury could conclude, beyond a reasonable doubt, that Guidry possessed a firearm. The government presented 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 scrutinize the identification of the weapon because it was made by a “frightened witness” undergoing 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. Assuming, as we must, that the eyewitness identification 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 sufficient evidence from which a jury could conclude beyond a reasonable doubt that the firearm possessed by Gui-dry affected interstate commerce. The government provided evidence 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 under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 *319 L.Ed.2d 902 (2000). As Guidry concedes — he notes that he merely raises the issue to preserve it for further review— this argument is foreclosed by our precedent. 4

III.

Guidry argues that the eyewitness identification testimony should have been suppressed because it was impermis-sibly tainted by a suggestive 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 constitutionality of the law enforcement action. See United States v. Saucedo-Munoz, 307 F.3d 344, 351 (5th Cir.2002). Whether an identification is constitutionally admissible is a mixed question of fact and law. See United States v. Hefferon, 314 F.3d 211, 217 (5th Cir.2002).

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United States v. Guidry, 406 F.3d 314, 2005 U.S. App. LEXIS 5607, 2005 WL 768764 (5th Cir. 2005).

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