                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2006

USA v. Tyree
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2698




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2698


                           UNITED STATES OF AMERICA

                                           v.

                                    SCOTT TYREE,
                                        Appellant


                     Appeal from the United States District Court
                        for the Western District of Pennsylvania
                           (D.C. Criminal No. 02-cr-00019-1)
                     District Judge: Honorable William L. Standish


                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 16, 2006

          Before: RENDELL, VAN ANTWERPEN and WEIS, Circuit Judges.

                                 (Filed May 31, 2006 )


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Scott Tyree pleaded guilty in 2003 to traveling in interstate commerce for the

purpose of engaging in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b),

and transporting a minor in interstate commerce with the intent that such minor engage in
sexually explicit conduct for the purpose of producing a visual depiction of such

conduct, in violation of 18 U.S.C. § 2251(a). Prior to the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220 (2005), the District Court sentenced Tyree to a

180-month term of imprisonment on the first count and a 235-month term on the second,

to be served concurrently. On appeal, we upheld his conviction but remanded for

resentencing in light of Booker. United States v. Tyree, 123 F. App’x 508, 510 (3d Cir.

2005). On remand, the District Court imposed an identical sentence, which Tyree now

appeals.

       Tyree challenges his resentencing on three grounds. First, he argues that the

District Court unconstitutionally enhanced his sentence beyond the statutory maximum

based on facts that were neither found by a jury nor admitted as part of his guilty plea.

See Booker, 543 U.S. at 244. Under the United States Sentencing Guidelines, the

District Court was to apply one of three guidelines to Tyree’s violation of 18 U.S.C. §

2423(b), each of which resulted in a different sentence. The District Court determined,

based on its own factual findings, that the guideline resulting in the highest sentence

applied here. Tyree contends that this decision effectively increased his statutory

maximum beyond that provided for by the facts he had admitted, in violation of Booker

and Apprendi v. New Jersey, 530 U.S. 466 (2000).

       Though Booker rendered the Sentencing Guidelines advisory, district courts must

nevertheless calculate the correct guidelines range applicable to a defendant’s particular


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circumstances before imposing a sentence. United States v. Cooper, 437 F.3d 324, 330

(3d Cir. 2006). This requires “precisely the same exercise in judicial fact finding” as it

did prior to Booker, so long as the sentencing court does not treat the resulting guidelines

range as mandatory. United States v. Miller, 417 F.3d 358, 363 (3d Cir. 2005). Because

the District Court clearly recognized that its Guidelines calculation was only advisory,

and because the sentence it imposed for the violation of 18 U.S.C. § 2423(b) did not

exceed the statutory maximum set forth in that provision, we conclude that the District

Court did not err in determining the facts necessary to ascertain the applicable guideline

range for Tyree.

       Tyree’s second claim is that the District Court relied on improper information to

arrive at a sentence. In particular, Tyree contends that the District Court should not have

considered his confession to the FBI, his counsel’s in-court statements, and the

government’s review of evidence to determine which guideline applied to his crimes.

Because such evidence was neither an “admission” of facts for Booker purposes nor a

stipulation as to which guideline should apply, Tyree argues that it was improper under

Booker for the District Court to rely upon it.

       We reject this argument. Whether the information relied upon by the District

Court qualifies as an admission or stipulation does not bear on the question of whether

the District Court could rely on it in determining sentencing facts. A sentencing court is

permitted to find facts based on a preponderance of the evidence in order to determine a


                                             3
defendant’s advisory Guideline range. Cooper, 437 F.3d at 330. Here, the District Court

relied primarily on Tyree’s confession to the FBI to determine the facts relating to his

criminal conduct, and there is no suggestion that the confession was involuntary or

otherwise invalid. It was clearly proper for the District Court to rely upon it in making

factual findings pertaining to Tyree’s sentence. Nor has Tyree identified any specific

statements by his counsel or by the government that the District Court improperly

considered, and we have found none.

       Finally, Tyree argues that his resentencing was unconstitutional because he could

have received a sentence for pre-Booker conduct above that which he would have

received under the applicable Guidelines range. Tyree contends that the Booker remedy

– resentencing under an advisory Guidelines scheme – exposed him to an increase in his

maximum sentence in violation of the ex post facto principle of the Due Process Clause.

We disagree. “[A]pplication of Booker’s remedial holding to cases pending on direct

review does not violate the ex post facto principle of the Due Process Clause.” United

States v. Pennavaria, 445 F.3d 720, 724 (3d Cir. 2006). The Supreme Court clearly

instructed that its remedial holding in Booker should be applied to all cases on direct

review. Booker, 543 U.S. at 268. Moreover, Tyree had fair warning that his conduct

exposed him to a prison term of up to 20 years under 18 U.S.C. § 2251 and that his

sentence could be enhanced based on judge-found facts as long as the sentence did not

exceed the statutory maximum. See Pennavaria, 445 F.3d at 723-24.


                                             4
         For the foregoing reasons, we will affirm the sentence imposed by the District

Court.




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