United States v. Andrew Tyner , 517 F. App'x 173 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6884
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDREW THOMAS TYNER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:09-cr-00892-GRA-1)
Submitted: January 9, 2013 Decided: April 5, 2013
Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion. Judge Diaz wrote a
separate opinion concurring in the result.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina; Kimberly H. Albro, Research and Writing
Specialist, Columbia, South Carolina, for Appellant. William N.
Nettles, United States Attorney, William J. Watkins, Jr.,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andrew Thomas Tyner pleaded guilty to coercing a minor
to engage in sexual conduct, in violation of 18 U.S.C.A.
§ 2251(a) (West Supp. 2012); transportation of child
pornography, in violation of 18 U.S.C.A. § 2252A(a)(1) (West
Supp. 2012); and possession of child pornography, in violation
of 18 U.S.C.A. § 2252A(a)(5)(B) (West Supp. 2012). The district
court originally sentenced Tyner to 180 months of imprisonment.
The Government subsequently filed a Fed. R. Crim. P. 35(b)
motion for a sentence reduction based on Tyner’s substantial
assistance. After a hearing, the district court denied the
motion, and Tyner now appeals. For the reasons that follow, we
affirm.
We review a district court’s order granting or denying
a Rule 35(b) motion de novo. See United States v. Clawson, 650
F.3d 530, 535 (4th Cir. 2011). Tyner argues that the district
court erred in considering factors other than his substantial
assistance in deciding to deny the Rule 35(b) motion. While we
have previously held that a district court may not consider any
factor other than substantial assistance in granting a Rule
35(b) motion, see id. at 535-37, it is an open question in this
circuit whether a court may consider other factors in
determining that a Rule 35(b) motion should be denied. Compare
United States v. Thornsbury, 670 F.3d 532, 535 n.3 (4th Cir.)
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(noting Clawson left that question open), cert. denied, 133 S.
Ct. 196 (2012), with United States v. Davis, 679 F.3d 190, 196
n.6 (4th Cir. 2012) (noting in dicta that Rule 35(b) limits
consideration to substantial assistance when deciding “whether
or not to grant” such a motion).
However, we decline to decide in this case whether a
district court may consider other factors in denying a Rule
35(b) motion, because we conclude that the Government has
demonstrated that any error the district court might have
committed was harmless. See United States v. Boulware, 604 F.3d
832, 838 (4th Cir. 2010) (government may avoid reversal under
harmless error standard if “error did not have a substantial and
injurious effect or influence on the result and we can say with
fair assurance that the district court’s [correct consideration]
would not have affected the sentence imposed”) (internal
quotation marks and citations omitted).
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this Court and argument would not aid in the decisional process.
AFFIRMED
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DIAZ, Circuit Judge, concurring in the result:
Applying harmless error analysis, the government
contends, and the majority accepts, that even if the district
court had first granted the government’s Rule 35(b) motion based
solely on substantial assistance before separately considering
the extent of any sentence reduction, the court would
nevertheless have refused to reduce Tyner’s sentence because
Tyner had already received a significant sentence variance and
there was a likelihood that he would reoffend. But this
conclusion is circular, as the act of granting a Rule 35(b)
motion is the sentence reduction, just as the rejection of a
sentence reduction is the denial of the motion.
In my view, the proper harmless error inquiry would
instead ask whether the district court would have denied a
sentence reduction under Rule 35(b) based solely on the merits
of Tyner’s assistance to the government. Because I cannot
confidently answer that question “yes” on this record, I find it
necessary to address what the majority acknowledges is an open
question in this circuit: whether a district court may consider
other factors in denying a Rule 35(b) motion. I would hold that
it can.
Specifically, I agree with our sister circuits that a
district court may properly consider factors other than
substantial assistance in denying a Rule 35(b) motion. See
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United States v. Chapman, 532 F.3d 625, 629 (7th Cir. 2008)
(“Nothing in the text of Rule 35(b) limits the factors that may
militate against granting a sentence reduction . . . .”); United
States v. Doe, 351 F.3d 929, 933 (9th Cir. 2003) (holding that a
district court’s consideration of factors other than a
defendant’s substantial assistance is a proper exercise of its
discretion in denying a Rule 35(b) motion); United States v.
Manella, 86 F.3d 201, 204 (11th Cir. 1996) (“[T]he only factor
that may militate in favor of a Rule 35(b) reduction is the
defendant's substantial assistance. Nothing in the text of the
rule purports to limit what factors may militate against
granting a Rule 35(b) reduction.”). Accordingly, the district
court did not err in considering the variance Tyner had already
received in sentencing or Tyner’s likelihood of recidivism when
it denied the government’s Rule 35(b) motion.
For these reasons, I concur in the result affirming
the district court’s order.
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