         08-5477-cr
         United States v. Tyson

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15 th day of March, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                GERARD E. LYNCH,
 9                         Circuit Judge,
10                JANE A. RESTANI, *
11                         Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15
16                    Appellee,
17
18                    -v.-                                         08-5477-cr
19
20       JOSEPH M. TYSON,
21
22                Defendant-Appellant.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       APPEARING FOR APPELLANT:               Robert G. Smith, Assistant
26                                              Federal Public Defender (Jay S.


                *
               The Honorable Jane A. Restani, Chief Judge of the
         United States Court of International Trade, sitting by
         designation.
 1                              Ovsiovitch, on the brief),
 2                              Office of the Federal Public
 3                              Defender for the Western
 4                              District of New York, Rochester,
 5                              NY.
 6
 7   APPEARING FOR APPELLEE:    Stephan J. Baczynski, Assistant
 8                              United States Attorney (Kathleen
 9                              M. Mehltretter, United States
10                              Attorney), Office of the United
11                              States Attorney for the Western
12                              District of New York, Buffalo,
13                              NY.
14
15
16        Appeal from a judgment of the United States District
17   Court for the Western District of New York (Siragusa, J.).
18
19        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20   AND DECREED that the judgment of the district court be
21   AFFIRMED.
22
23        Defendant-appellant Joseph M. Tyson appeals from a
24   judgment of conviction entered in the United States District
25   Court for the Western District of New York (Siragusa, J.),
26   following a jury trial. We assume the parties’ familiarity
27   with the underlying facts, the procedural history, and the
28   issues presented for review.
29
30        “The standard of review for evaluating the district
31   court’s ruling on a suppression motion is clear error as to
32   the district court’s factual findings, viewing the evidence
33   in the light most favorable to the government, and de novo
34   as to questions of law.” United States v. Rodriguez, 356
35   F.3d 254, 257 (2d Cir. 2004).
36
37        The district court properly denied Tyson’s motion to
38   suppress the tangible evidence seized from his apartment on
39   September 28, 2005. Magistrate Judge Feldman credited
40   Detective McLaughlin’s testimony that he read aloud to Tyson
41   the consent to search form and the handwritten notation
42   including “CPU & electronic storage devices” in the scope of
43   the search. The district court thus agreed with Magistrate
44   Judge Feldman that “the Government established at the

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 1   [suppression] hearing, by a preponderance of the evidence,
 2   that the defendant voluntarily consented to the search of
 3   his residence.” There is therefore no merit in Tyson’s
 4   arguments to the contrary.
 5
 6        “The applicability of the fruit of the poisonous tree
 7   doctrine is a question of law reviewed de novo.” United
 8   States v. Awadallah, 349 F.3d 42, 71 (2d Cir. 2003)
 9   (internal quotation marks omitted). The district court
10   properly denied Tyson’s motion to suppress an inculpatory
11   statement he gave on October 11, 2005. Assuming arguendo
12   that Detective Lambert unreasonably seized Tyson’s apartment
13   in violation of the Fourth Amendment, the inculpatory
14   statement is “so attenuated [from the seizure] as to
15   dissipate the taint.” Wong Sun v. United States, 371 U.S.
16   471, 487, 491 (1963) (internal quotation marks omitted).
17   “[T]he Supreme Court has declined to adopt a per se or but
18   for rule that would make inadmissible any evidence [] which
19   somehow came to light through a chain of causation that
20   began with an illegal” seizure. Mosby v. Senkowski, 470
21   F.3d 515, 520 (2d Cir. 2006) (internal quotation marks
22   omitted). We instead evaluate the “causal connection”
23   between a Fourth Amendment violation and the statement at
24   issue. Brown v. Illinois, 422 U.S. 590, 603 (1975). At the
25   time Tyson provided the inculpatory statement, he was not in
26   custody and he had received Miranda warnings; there is no
27   indication of flagrant or purposeful misconduct on Detective
28   Lambert’s part. See Mosby, 470 F.3d at 521 (enumerating
29   four indicia of voluntariness). Tyson thus voluntarily
30   provided the inculpatory statement, breaking any causal
31   connection.
32
33        We apply a “particularly deferential form of abuse-of-
34   discretion review” to evaluate the substantive
35   reasonableness of a sentence. United States v. Cavera, 550
36   F.3d 180, 188 n.5 (2d Cir. 2008) (in banc). “We will set
37   aside a district court’s substantive determination only in
38   exceptional cases where the trial court’s decision cannot be
39   located within the range of permissible decisions.” Id. at
40   189 (internal quotation marks omitted). “[W]e take into
41   account the totality of the circumstances, giving due
42   deference to the sentencing judge’s exercise of discretion,
43   and bearing in mind the institutional advantages of district
44   courts.” Id. at 190. In short, we “patrol the boundaries

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 1   of reasonableness,” but recognize “that responsibility for
 2   sentencing is placed largely in the precincts of the
 3   district court.” Id. at 191.
 4
 5        Under this highly deferential standard of review,
 6   Tyson’s stacked sentence of 65 years is substantively
 7   reasonable. The district court explicitly decided to
 8   harness the stacking provision set forth in Guideline
 9   section 5G1.2(d) to effectuate the advisory Guideline
10   sentence of life imprisonment. See U.S.S.G. § 5G1.2(d).
11   While the district court recognized that Tyson is “going to
12   die in prison,” it underscored the risk he posed as a
13   “predator” of children, his “horrific conduct,” and “the
14   effect it will have on [a] 9 year old” victim. The district
15   court thus concluded that the sentence was not only
16   sufficient, but also necessary to effectuate the purposes of
17   sentencing set forth in 18 U.S.C. § 3553. Accordingly, we
18   cannot say that this sentence falls outside the range of
19   permissible decisions.
20
21        Finding no merit in Tyson’s remaining arguments, we
22   AFFIRM the judgment of the district court.
23
24
25                              FOR THE COURT:
26                              CATHERINE O’HAGAN WOLFE, CLERK
27
28
29
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