United States v. Tyson , 176 F. App'x 255 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-18-2006
USA v. Tyson
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1783
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 05-1783
UNITED STATES OF AMERICA
v.
AARON TYSON,
also known as “Q”
Aaron Tyson,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 02-cr-00221-3)
District Judge: Hon. Edwin M. Kosik
Submitted Under Third Circuit LAR 34.1(a)
April 17, 2006
Before: SLOVITER, AMBRO and MICHEL * , Circuit Judges
(Filed April 18, 2006 )
OPINION
*
Hon. Paul R. Michel, Chief Judge of the United States
Court of Appeals for the Federal Circuit, sitting by designation.
SLOVITER, Circuit Judge.
Appellant, Aaron Tyson (“Tyson”), who was convicted of drug offenses, appeals
from the Judgment and Commitment Order sentencing him to a 200-month term of
imprisonment, a $2,500 fine, a $100 special assessment, and a ten-year term of supervised
release. Tyson claims that the District Court relied on an improperly prepared
presentence investigation report (“PSR”) and that the severity of his sentence violates his
due process rights and the Ex Post Facto clause of the Constitution.
Tyson was indicted on three counts relating to the distribution of narcotics,
including conspiracy to distribute in excess of 50 grams of cocaine base (“crack”), in
violation of 21 U.S.C. § 846 (“Count I”). Pursuant to a plea agreement, Tyson entered a
plea of “guilty” to Count I of the superseding indictment, and the Government dismissed
all remaining counts. The plea agreement provided, inter alia, that Tyson faced a
mandatory minimum sentence of twenty years imprisonment and a maximum sentence of
life in prison.
Prior to the sentencing hearing, the United States Probation Office filed a PSR
which calculated Tyson’s sentence based on possession with the intent to distribute
between 150 and 500 grams of crack cocaine and possession of a firearm in connection
with his drug activities. After upwardly adjusting Tyson’s offense level for possession of
a dangerous weapon and for his supervisory role in the conspiracy, and downwardly
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adjusting the offense level for his willingness to accept responsibility and his timely
notification of his intent to plead guilty, the PSR calculated Tyson’s total offense level at
36. Based on a criminal history category of V, the PSR found the United States
Sentencing Guidelines (“Guidelines”) imprisonment range to be between 292-365 months
and the Guidelines range for fines to be between $20,000 and $8,000,000.
In response to the PSR, Tyson filed a sentencing memorandum with the District
Court and another with the U.S. Probation Office. Tyson argued that the PSR
calculations regarding his sentence were erroneous because pursuant to the plea
agreement he should have received a three-level reduction for acceptance of
responsibility, a departure below the mandatory minimum sentence of 20 years, and a
three-level cooperation departure. He contended that these downward adjustments should
be subtracted from a Guidelines base level of no greater than 30, based on possession
with intent to distribute 50 to 150 grams of crack cocaine. He rejected the PSR
calculation based on possession with intent to distribute 150 to 500 grams of crack
cocaine because he had never admitted to that quantity of drugs, nor had the quantity been
proven beyond a reasonable doubt. He also contended that his criminal history category
was III and that any higher category would over-represent the seriousness of his prior
criminal record. Based upon these arguments, Tyson claimed that the maximum sentence
allowed by law was 63 months imprisonment unless the Government was able to prove
additional facts regarding drug quantity and possession of a firearm in furtherance of a
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drug crime beyond a reasonable doubt.
The District Court, citing the U.S. Supreme Court’s holding in United States v.
Booker, 543 U.S. 220 (2005), acknowledged the advisory nature of the Guidelines and
articulated its consideration of the sentencing factors listed in § 3553(a). After
considering the factors and the parties’ respective arguments, the District Court sentenced
Tyson to 200 months imprisonment followed by ten years of supervised release and
required Tyson to pay a fine of $2,500 and a special assessment of $100. Tyson appeals
from that sentence.
This court has jurisdiction under 18 U.S.C. § 3742(a)(1) to review sentences for
reasonableness. United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). To
determine if the court acted reasonably in imposing Tyson’s sentence, we must first be
satisfied that the court exercised its discretion by considering the relevant factors, set
forth in 18 U.S.C. § 3553(a). Id. at 329. Although the record must show that the District
Court meaningfully considered the factors, the District Court is not required to make
findings as to each of the factors. Id. In addition, “the standard of proof under the
guidelines for sentencing facts continues to be preponderance of the evidence.” Id. at
330.
Tyson presents five arguments on appeal. First, Tyson argues that the U.S.
Probation Office improperly prepared the PSR because the PSR failed to provide detailed
facts with regard to the amount of drugs involved in the offense or with regard to the use
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of a firearm in connection to the offense, and did not provide a specific finding that the
Guidelines provide a sentence no greater than necessary. Tyson argues that because of
these deficiencies, the PSR failed to provide the court with enough information for it to
make a detailed “parsimony determination.” 1
Tyson’s claim that the preparation of the PSR frustrated the court’s ability to make
a “parsimony determination,” and, therefore, violated his due process rights, is without
merit. Because the PSR met the Rule 32 requirements, the District Court had a sufficient
basis to exercise its sentencing discretion under § 3553(a). The District Court expressly
considered the sentencing factors identified in § 3553(a); therefore, the sentence imposed
did not violate Tyson’s due process rights.
Second, Tyson argues that the District Court, employing the Guidelines as an
advisory tool following Booker, imposed a sentence greater than that which was allowed
at the time of the commission of the crime in violation of his due process rights and the
Ex Post Facto clause of the Constitution.
Tyson’s due process and Ex Post Facto arguments are without merit. At the time
of the commission of his crime and upon the entering of the his guilty plea, Tyson was
1
Tyson’s attorney defines a “parsimony determination” as
“an express finding by a sentencing court regarding whether or not
a proposed sentence is no greater than necessary to achieve the
goals of just sentencing.” Def. Br. 8 (quotation marks and citation
omitted). He argues that the goals of § 3553(a) and the principles
of due process require such a determination. Id. at 8-9.
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facing a maximum of life in prison. Tyson was notified, both at his change of plea
hearing and in his written plea agreement, that he faced a maximum sentence of life
imprisonment. Therefore, Tyson had warning that he could be subject to a sentence
beyond 63 months. Moreover, every court that has addressed a due process challenge to
Booker based on the Ex Post Facto clause has rejected such a challenge. See United
States v. Fairclough, 439 F.3d 76, 79 (2d Cir. 2006); United States v. Jamison, 416 F.3d
538, 539 (7th Cir. 2005); United States v. Dupas, 417 F.3d 1064 (9th Cir. 2005); United
States v. Duncan, 400 F.3d 1297 (11th Cir. 2005); United States v. Gray, 362 F.Supp. 2d
714 (S.D. W.Va. 2005).
Third, Tyson argues that the District Court erred in failing to make an express
“parsimony determination,” which Tyson believes is required by § 3553(a) and the
general principles of due process. This argument fails because the District Court, in
imposing its sentence, specifically identified and considered the factors listed in § 3553(a)
and therefore met the requirements of Cooper.
Fourth, Tyson argues that the sentencing record before the District Court contained
evidence that could only support a sentence of no more than 63 months. We conclude
that the record before the District Court contained sufficient evidence to justify the
sentence imposed (e.g., an FBI agent’s testimony that Tyson committed the offense while
on probation, had a prior felony conviction, and a prior conviction for the sale of crack).
Finally, Tyson argues that the District Court erred in basing its sentence on facts
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not proven beyond a reasonable doubt. This court has stated that, post-Booker, “the
standard of proof under the guidelines for sentencing facts continues to be preponderance
of the evidence.” Cooper, 437 F.3d at 330. Thus, the District Court properly calculated
the sentencing guidelines relying on facts proven beyond a preponderance of the
evidence.
For the foregoing reasons, the District Court’s judgment of conviction and
sentence will be affirmed.
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