10-2478-cr
United States v. Tyquan Midyett

                   UNITED STATES COURT OF APPEALS
                       FOR THE SECOND CIRCUIT
                        AMENDED 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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 1st day of December, two thousand eleven.

PRESENT:    AMALYA L. KEARSE,
            PIERRE N. LEVAL,
            DENNY CHIN,
                      Circuit Judges.
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UNITED STATES OF AMERICA,
          Appellee,
            -v.-                                      10-2478-cr
TYQUAN MIDYETT,
          Defendant-Appellant.

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FOR DEFENDANT-APPELLANT:            JOHN BURKE, Law Office of John
                                    Burke, New York, New York.

FOR APPELLEE:                       M. KRISTEN MASE, WILLIAM E.
                                    SCHAEFFER, and EMILY BERGER,
                                    Assistant United States Attorneys,
                                    for LORETTA E. LYNCH, United States
                                    Attorney for the Eastern District
                                    of New York, Brooklyn, New York.



            Appeal from the United States District Court for the

Eastern District of New York (Matsumoto, J.).           UPON DUE

CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is AFFIRMED.
          Defendant-appellant Tyquan Midyett appeals from the

district court's June 17, 2010 judgment convicting him, pursuant

to a jury verdict, of (1) conspiracy to distribute and possess

with intent to distribute cocaine base; (2) distribution and

possession with intent to distribute cocaine base near a school

and public housing facility; and (3) possession of a firearm
after having been convicted of a felony.    The district court

sentenced Midyett principally to 240 months' imprisonment.

Midyett challenges the judgment on the principal grounds that (1)

the district court erred in denying his motion to suppress

certain evidence; (2) the verdict sheet was prejudicial; and (3)

the Fair Sentencing Act of 2010 should apply to his conviction.

          We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues on

appeal.

1.   The Motion to Suppress

          Midyett challenges the district court's denial of his

motion to suppress currency seized from his pocket after his

arrest on January 9, 2007.    Specifically, he argues that the

police did not have probable cause to arrest him, and the

currency should have been suppressed as fruit of the poisonous

tree.

          As established by the evidence presented at the

suppression hearing below, the facts relevant to Midyett’s arrest

are as follows:   On January 9, 2007, police officers from the

NYPD Housing Bureau and officers from the Emergency Services Unit

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("ESU") were preparing to execute a search warrant for Apartment

3B of 125 Nostrand Avenue, Brooklyn, New York.    Officer

Samaniego, of the Housing Bureau, took up a post outside the

building, and observed a woman drop a bag out of a small window

on the second floor.     It contained approximately sixty vials of

cocaine.   He knew that the window belonged to Apartment 2A

because the outside of the building was marked with an "A" below

that line of windows.    Samaniego relayed what he had seen to

Captain McGinn (also of the Housing Bureau).     McGinn knew that

another warrant -- which he did not have in his possession --

authorized the search of Apartment 2A of the same building for,

among other things, drugs and drug paraphernalia.    He instructed

the ESU officers to go to Apartment 2A, knock on the door, and

attempt to gain entry.    They did so, and when an occupant opened

the door, they entered the apartment.1    In the apartment, ESU

found a gun and a ziplock bag containing approximately twenty-

seven vials of crack cocaine in "plain view" at eye level on the

shelf of a kitchen closet, the door to which was open.      (Feb. 3,
2009 Order at 40).   Midyett and six other individuals were in the

apartment when ESU entered.    All seven were arrested.

           Thus, Midyett was in an apartment for which the

authorities had a search warrant, from the window of which

cocaine was tossed, and in which a gun and more drugs were found


     1
          In an appeal by one of Midyett's co-defendants, this
Court held that the search of Apartment 2A was lawful. See
United States v. Armstrong, 406 F. App'x 500 (2d Cir. 2010)
(Summary Order).
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in "plain view."     These facts, taken together, "are sufficient to

warrant a person of reasonable caution in the belief that

[Midyett] ha[d] committed or [was] committing a crime."     Torraco

v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010)

(internal quotation marks omitted).      Therefore, ESU had probable

cause to arrest Midyett, and the search of his pockets was

justified as incident to a lawful arrest, see, e.g., United

States v. Robinson, 414 U.S. 218, 224 (1973).

2.   The Verdict Sheet
           Midyett also argues that the structure of the verdict

sheet was prejudicial.    Specifically, he contends that the

verdict sheet's instruction on Count One was confusing because it

prompted the jury to answer whether "the conspiracy involved

fifty grams or more of cocaine base" only if it found Midyett

guilty on Count One -- a count that, by its terms, necessitated a

finding that the conspiracy involved fifty grams or more of

cocaine.   While the second question might have been rendered

superfluous by the first, the sequence of questions did not

prejudice Midyett.    See generally United States v. McCourty, 562
F.3d 458, 470-71 (2d Cir.) (discussing similar interrogatories),

cert. denied, 130 S. Ct. 1012 (2009).      Furthermore, "[a]s the

quantity issue was actually submitted to the jury and was decided

beyond a reasonable doubt," Midyett's rights under Apprendi v.

New Jersey, 530 U.S. 466 (2000), were not violated.     United
States v. Flaharty, 295 F.3d 182, 195-96 (2d Cir.), cert. denied,

537 U.S. 936 (2002).

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3.   The Fair Sentencing Act

          Finally, Midyett argues that he is entitled to the

benefit of the Fair Sentencing Act of 2010 (the "FSA").   This

argument fails, however, because Midyett was sentenced before the

enactment of the FSA, and this Court has explicitly held that the

FSA does not apply retroactively.   See United States v. Diaz, 627

F.3d 930, 931 (2d Cir. 2010); United States v. Acoff, 634 F.3d

200, 202 (2d Cir. 2011) (per curiam) (FSA not retroactive even if

defendant's case still on appeal when it was enacted).2
          We have considered Midyett's remaining arguments on

appeal and have found them to be without merit.

          For the reasons stated above, the judgment of the

district court is AFFIRMED.

                         FOR THE COURT:
                         CATHERINE O’HAGAN WOLFE, CLERK




     2
          We note that the United States Sentencing Commission
amended the sentencing guidelines in light of the FSA, and in
June 2011 voted to give retroactive effect to the amendment. See
News Release, U.S. Sent'g Comm'n, U.S. Sentencing Commission
Votes Unanimously To Apply Fair Sentencing Act of 2010 Amendment
to the Federal Sentencing Guidelines Retroactively (June 30,
2011), available at http://www.ussc.gov/Legislative_and_Public_Af
fairs/Newsroom/Press_Releases/20110630_Press_Release.pdf, at 1.
The retroactive application of the amended guidelines, however,
"does not give retroactive effect to the [FSA itself]." Id.
Therefore, the amended guidelines cannot benefit a defendant,
like Midyett, who received the mandatory minimum term of
imprisonment applicable at the time he was sentenced. See United
States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009) (regardless
of a lowering of a sentencing range by the Commission, where a
defendant's "'statutorily required minimum sentence [is] greater
than the maximum of the applicable guideline range, the
statutorily required minimum sentence [is] the guideline
sentence'" (quoting Guidelines § 5G1.1(b))).
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