                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                    NOT PRECEDENTIAL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



                                             2
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



                                              3
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



                                               4
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.

                                              5
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



                                              6
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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