United States v. Ledell Tyler ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 28, 2019
Decided July 1, 2019
Before
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES Circuit Judge
DAVID F. HAMILTON, Circuit Judge
Nos. 18‐1953, 18‐1972 & 18‐2526
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. Nos. 17‐cr‐40011‐001, 17‐cr‐40011‐002 &
17‐40011‐003
DEAUNTA TYLER, DALVENT Sara Darrow,
JACKSON and LEDELL TYLER, Chief Judge.
Defendants‐Appellants.
ORDER
A jury found Deaunta Tyler, Dalvent Jackson, and Ledell Tyler, the appellants in
this consolidated appeal, each guilty of robbery, 18 U.S.C. § 1951, possession of a
firearm in furtherance of robbery, id. § 924(c), and possession of a firearm as a felon,
id. § 922(g). Deaunta1 and Jackson were sentenced as career offenders under U.S.S.G.
§ 4B1.1(a) to 330 months’ imprisonment and 360 months’ imprisonment, respectively,
and Ledell received 180 months. The defendants each appealed, but their appointed
1 Because two of the defendants share a last name, we refer to them by their first
names.
Nos. 18‐1953, 18‐1972 & 18‐2526 Page 2
attorneys have concluded that the appeals are frivolous and move to withdraw under
Anders v. California, 386 U.S. 738 (1967). Deaunta and Ledell responded in opposition to
their attorneys’ motions. See CIR. R. 51(b). Because the attorneys’ briefs appear to be
thorough and address the potential issues that we would expect appeals like this to
involve, we limit our review to the topics they discuss, along with the issues Deaunta
and Ledell wish to raise. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Each counsel first considers whether the defendants could challenge any
evidentiary or trial rulings but rightly concludes that any challenges would be
frivolous. We would review the rulings for abuse of discretion and reverse only if an
error caused harm. United States v. Phillips, 745 F.3d 829, 833 (7th Cir. 2014). Here, there
were very few evidentiary rulings, and none of them involved the defendants’ defense
of mistaken identity, which was the only materially contested issue. Therefore, it would
be frivolous to argue that any ruling prejudiced the defendants at trial.
Each counsel also assesses, and correctly rejects, a challenge to the sufficiency of
the evidence. None of the defendants moved for a judgment of acquittal under Federal
Rule of Criminal Procedure 29, so we would reverse their convictions only if we found
a “manifest miscarriage of justice” under the plain‐error standard of review. See United
States v. Rea, 621 F.3d 595, 601–02 (7th Cir. 2010). And it would be frivolous to argue that
the considerable evidence in this case was insufficient for any rational trier of fact to
find the essential elements of the offenses beyond a reasonable doubt. See United States
v. Khattab, 536 F.3d 765, 769 (7th Cir. 2008). The defendants were accused of a home
invasion and armed robbery. The government presented evidence of the attempted
arrest and ensuing police chase of the defendants hours after the robbery, two
eyewitness identifications of each defendant, and the recovery of two guns in the
defendants’ car at the time of their arrests that matched the victims’ descriptions of the
guns used to commit the robbery. The evidence also included forensic analysis that
identified one of the guns as having been fired in the victims’ home, a victim’s keys
found in the defendants’ car at the time of their arrest, and Jackson’s fingerprints on
both guns.
Next, counsel for each defendant rightly concludes that any challenge to the
calculation of their Sentencing Guidelines ranges would be frivolous. Counsel for
Deaunta and Jackson determine that the guidelines range of 360 months to life, based
on their career‐offender designations, was correctly applied to each. See U.S.S.G.
§ 4B1.1(c)(3). A defendant convicted of a crime of violence—here, Hobbs Act robbery—
is a career offender if he has at least two prior felony convictions for a crime of violence
Nos. 18‐1953, 18‐1972 & 18‐2526 Page 3
or a controlled‐substance offense. Id. § 4B1.1. Both defendants had qualifying predicate
offenses: Deaunta for delivery of a controlled substance and conspiracy to distribute
cocaine base, and Jackson for delivery of a controlled substance and Illinois aggravated
battery. See United States v. Lynn, 851 F.3d 786, 799 (7th Cir. 2017) (Illinois aggravated
battery is a “crime of violence” under § 4B1.2(a).).
Deaunta proposes arguing that Hobbs Act robbery is not categorically a “crime
of violence” under § 4B1.2 because it can be committed through threats to property, and
is thus broader than generic robbery, which requires threats to a person. Although we
have not directly addressed whether Hobbs Act robbery is a crime of violence under the
guidelines, see United States v. Camp, 903 F.3d 594, 604 (6th Cir. 2018), we have held that
it qualifies as a “crime of violence” under the elements clause of § 924(c), see United
States v. Rivera, 847 F.3d 847, 848 (7th Cir. 2017). And we have typically interpreted
“crime of violence” the same way under the guidelines and § 924(c). See United States
v. Campbell, 865 F.3d 853, 857 (7th Cir. 2017). But other circuits have recently held that
Hobbs Act robbery, though a crime of violence under § 924(c)(3)(A), is not so under the
guidelines. See Camp, 903 F.3d at 604; see also United States v. O’Connor, 874 F.3d 1147,
1158 (10th Cir. 2017). Therefore, the argument, if properly preserved, may not be
frivolous2; however, both Deaunta and Jackson waived any challenge to their
career‐offender designations in the district court.
A defendant waives an argument, precluding review, when he intentionally
relinquishes, by words or actions, a known right. See United States v. Seals, 813 F.3d 1038,
1044–45 (7th Cir. 2016). Both defendants received a revised presentence investigation
report that contained their guidelines calculations as career offenders, and their lawyers
confirmed that they had reviewed the report with their clients. Deaunta confirmed that
the report’s addendum accurately stated that there were no remaining objections.
Jackson’s counsel objected to an obstruction enhancement, but confirmed that,
otherwise, the range is “properly calculated.” These statements effected a waiver.
2The same cannot be said of Ledell’s proposed argument that Hobbs Act
robbery cannot serve as a predicate for a crime‐of‐violence conviction under § 924(c)
because it does not necessarily involve violent force. We held otherwise in Rivera.
847 F.3d at 849 (“Hobbs Act robbery qualifies as a predicate for a crime‐of‐violence
conviction” because “one cannot commit Hobbs Act robbery without using or
threatening physical force.”).
Nos. 18‐1953, 18‐1972 & 18‐2526 Page 4
See United States v. Brodie, 507 F.3d 527, 531 (7th Cir. 2007); United States v. Staples,
202 F.3d 992, 995 (7th Cir. 2000).
Ledell’s counsel also rightly determines that the judge correctly calculated his
guidelines range. Counsel observes that he could renew his argument that the judge
erred in applying an upward adjustment for the specific offense characteristic of
physically restraining a victim during a robbery under U.S.S.G. § 2B3.1(b)(4)(B). Relying
on United States v. Taylor, 620 F.3d 812, 814–15 (7th Cir. 2010), Ledell had argued that the
presentence report impermissibly double‐counted physical restraint as both an element
of the underlying offense of robbery and a basis to raise the base offense level. But
Ledell’s counsel conceded that we overruled Taylor to the extent it generally
condemned double‐counting under the guidelines. See United States v. Cook, 850 F.3d
328, 334 (7th Cir. 2017). In any case, because Hobbs Act robbery can be committed
without physical restraint, there was no double‐counting at issue here. See id. Moreover,
the judge stated that “independent” of the special offense characteristic, a sentence
within the same range was appropriate based on the 18 U.S.C. § 3553(a) factors.
Counsel also properly decide against arguing that the defendants’ sentences
were substantively unreasonable. Deaunta’s sentence of 330 months’ imprisonment was
below the guidelines range of 360 months to life under § 4B1.1(c)(3). Jackson’s sentence
of 360 months’ imprisonment was within that range. And Ledell’s total sentence of 180
months was also within his guidelines range of 57 to 71 months (based on a total offense
level of 23 and criminal history category of III) and included a statutory minimum of
120 months consecutive to the other counts. See 18 U.S.C. § 924(c)(1)(A)(iii). We presume
that below‐guidelines and within‐guidelines sentences are reasonable. See United States
v. White, 868 F.3d 598, 603 (7th Cir. 2017); United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005). Like counsel, we see nothing in the record to rebut these presumptions
as to any defendant.
For each defendant, the district judge weighed the relevant factors under
18 U.S.C. § 3553(a). In Deaunta’s case, the judge observed that the robbery was
“incredibly serious” with a “lasting” impact on the victims. The judge also examined
Deaunta’s personal history and characteristics, noting “a long string of uninterrupted
criminal activity.” The judge further considered his mitigating circumstances—that he
has mental health needs, a father in prison, and a mother addicted to drugs. In Jackson’s
case, the judge described him as the “leader of this operation and in control” and noted
that the offense “was about as bad as it gets” in that Jackson “broke into a home with
multiple individuals” and “terrorized this family for almost an hour.” Yet the judge also
Nos. 18‐1953, 18‐1972 & 18‐2526 Page 5
observed that Jackson “grew up in a volatile family dynamic” and has a history of
mental‐health issues and attempted suicide. Finally, the judge weighed the relevant
factors in Ledell’s case, noting that he “stormed into” a home full of women and
children and that one of the witnesses stated that Ledell “held the gun to her child.” The
judge also observed that Ledell has “a pattern of non‐compliance” with the court’s
orders. In mitigation, the judge highlighted Ledell’s substance abuse and work history.
Next, Jackson’s counsel rightly discerns no nonfrivolous argument that the judge
erred in denying his pretrial motion to sever his trial under Federal Rule of Criminal
Procedure 14. Jackson argued that the jury would infer his “guilt by association”
because he was arrested and identified by witnesses while he was with his
co‐defendants hours after the robbery. Jackson conceded that joinder was proper, so he
had the “heavy burden” of showing that there was a serious risk that a joint trial would
compromise a specific trial right or prevent the jury from making a reliable judgment
about guilt or innocence. See United States v. White, 737 F.3d 1121, 1133 (7th Cir. 2013).
But the purportedly prejudicial evidence of the circumstances of Jackson’s arrest and
identification link him to the robbery and could be introduced against him even at a
separate trial. Moreover, the judge instructed the jury to consider each defendant
individually and to analyze the evidence independently as to each of them. See Zafiro
v. United States, 506 U.S. 534, 539 (1993) (Limiting instructions “often will suffice to cure
any risk of prejudice” caused by joinder.).
Deaunta further opposes his attorney’s motion by proposing the argument that
his counsel was ineffective at trial by failing to argue that Hobbs Act robbery is not a
crime of violence and failing to move for a mistrial. But such claims are best reserved
for a collateral proceeding in which he can develop an evidentiary foundation to
support them. See Massaro v. United States, 538 U.S. 500, 505–06 (2003); United States
v. Flores, 739 F.3d 337, 341 (7th Cir. 2014).
Finally, Ledell wishes to argue that the district judge erred by giving the
government’s proposed jury instruction allowing for co‐conspirator liability for the
crime of possessing a firearm in furtherance of a crime of violence. See Pinkerton
v. United States, 328 U.S. 640, 647–48 (1946). He contends that the instruction
impermissibly included language about conspiracy, although one was not charged, and
did not require the government to prove that he knew that a gun would be used to
commit the robbery. But Ledell waived any objection to this instruction: he had advance
notice of the government’s proposed instructions, and, at the final jury‐instructions
conference near the end of the trial, the judge read each instruction and asked for any
Nos. 18‐1953, 18‐1972 & 18‐2526 Page 6
objections; Ledell, through counsel, affirmatively stated that he had no objection to the
pattern Pinkerton instruction. See United States v. Johnson, 874 F.3d 990, 1000‐01 (7th Cir.
2017). And even under plain‐error review, we see nothing in the record to suggest that
the instructions affected Ledell’s substantial rights (who, the evidence strongly
suggests, personally possessed a firearm during the robbery). See id. at 1001.
Counsel’s motions to withdraw are GRANTED, and the appeals are DISMISSED.