United States v. Jikeem Tyler , 614 F. App'x 108 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4688
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIKEEM GABRIEL TYLER,
Defendant - Appellant.
No. 14-4691
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAKOTA RAYE BROWN,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00026-CCE-2; 1:14-cr-00026-CCE-1)
Submitted: May 29, 2015 Decided: June 5, 2015
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua B. Howard, GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh,
North Carolina; Jay H. Ferguson, THOMAS, FERGUSON & MULLINS,
LLP, Durham, North Carolina, for Appellants. Ripley Rand,
United States Attorney, Graham T. Green, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jikeem Gabriel Tyler and Jakota Raye Brown (together,
“Appellants”) appeal their respective 48-month and 50-month
upward-departure sentences, see U.S. Sentencing Guidelines
Manual § 5K2.21, p.s. (2013), imposed by the district court
following their guilty pleas to conspiracy to possess with
intent to distribute less than 50 kilograms of marijuana, in
violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(d) (2012). On
appeal, Appellants challenge the reasonableness of their
sentences. We affirm.
Appellants claim that their sentences are both procedurally
and substantively unreasonable. We review a sentence for
reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007);
United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015).
“First, we must determine whether the district court committed
any procedural error, ‘such as . . . improperly calculating[]
the [Sentencing] Guidelines range, . . . selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.’” Lymas, 781 F.3d at 111-
12 (quoting Gall, 552 U.S. at 51). Preserved procedural errors
may be reviewed for harmlessness. United States v. Boulware,
604 F.3d 832, 838 (4th Cir. 2010) (defining harmlessness of
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nonconstitutional error). “Only if we determine that the
district court has not committed procedural error do we proceed
to assess ‘the substantive reasonableness of the sentence
imposed.’” Lymas, 781 F.3d at 112 (quoting Gall, 552 U.S. at
51).
Appellants first claim that the district court procedurally
erred by failing to explain in its written statements of reasons
with the specificity required by 18 U.S.C. § 3553(c)(2) (2012),
its justifications for departing upwardly. Because Appellants
requested “sentence[s] different than the one[s] ultimately
imposed,” they have preserved their § 3553(c)(2) challenge.
United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). Even
assuming, without deciding, that the district court’s statements
of reasons lacked the specificity required by § 3553(c)(2), we
conclude that any error in this regard is harmless. Because the
district court entered the written statements of reasons
postjudgment, following a lengthy explanation of reasons during
the sentencing hearing, the alleged lack of specificity cannot
be said to have had “a substantial and injurious effect or
influence on [Appellants’ sentences,] and we can . . . say with
. . . fair assurance[] . . . that the district court’s explicit
consideration [in its written statements of reasons] of . . .
[the factors it had already expressly and thoroughly considered
at Appellants’ sentencing hearings] would not have affected the
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sentence[s] imposed.” Boulware, 604 F.3d at 838 (internal
quotation marks omitted).
Next, Appellants claim that the district court failed to
adequately explain the reasons for the extent of their
sentencing departure. We conclude, however, that Appellants’
arguments in support of this claim are unavailing. Unlike a
departure pursuant to USSG § 4A1.3, we have never held that a
§ 5K2.21, p.s., departure obligated a district court to employ
an incremental approach, see United States v. Dalton 477 F.3d
195, 199-200 (4th Cir. 2007) (describing § 4A1.3 analysis), and
we decline to do so here. Additionally, and contrary to
Appellants’ assertions, we conclude that the district court
“‘set forth enough to satisfy [us] that [it] . . . considered
the parties’ arguments and ha[d] a reasoned basis for exercising
[its] own legal decisionmaking authority’” to impose the
departure sentences. United States v. Diosdado-Star, 630 F.3d
359, 364 (4th Cir. 2011) (quoting Rita v. United States, 551
U.S. 338, 356 (2007)). Further, the district court’s oral
explanations demonstrate that it accorded Appellants
individualized assessments and, thereby, adequately explained
the reason for any parity or disparity in their sentences.
Brown claims that his sentence is procedurally unreasonable
because the Government failed to present any evidence supporting
application of a managerial-role adjustment under USSG
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§ 3B1.1(b). Although it chose not to do so, the district court
could have relied solely on the evidence that Brown instructed
coconspirators to engage in criminal conduct as a basis for
applying the § 3B1.1(b) upward adjustment. See United States v.
Hamilton, 587 F.3d 1199, 1222 (10th Cir. 2009); United States v.
Rashwan, 328 F.3d 160, 166 (4th Cir. 2003). Relying on this
evidence, we perceive no clear error in the district court’s
application of § 3B1.1(b). See United States v. Steffen, 741
F.3d 411, 414 (4th Cir. 2013) (stating standard of review).
Because we conclude that the district court did not commit
significant procedural error, we turn our attention to the
substantive reasonableness of the sentences, “tak[ing] into
account the totality of the circumstances, including the extent
of any [deviation] from the Guidelines range.” Gall, 552 U.S.
at 51. “When reviewing a departure, we consider whether the
sentencing court acted reasonably . . . with respect to the
extent of the divergence from the sentencing range.” United
States v. Howard, 773 F.3d 519, 529 (4th Cir. 2014) (internal
quotation marks omitted). However, “we ‘must give due deference
to the district court’s decision that the [18 U.S.C.] § 3553(a)
[(2012)] factors, on a whole, justify the extent of the
[divergence].’” 773 F.3d at 528 (quoting Gall, 552 U.S. at 51).
Appellants claim that their sentences are unreasonably high
in relation to their established Guidelines ranges. Although
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they twice repeat this claim, Appellants do not develop the
argument beyond mere conclusory assertions and a citation to a
single authority, which they do not attempt to apply to their
appeals. Because Appellants fail to comply with Fed. R. App. P.
28(a)(8)(A), with respect to this claim, we do not review it.
See Projects Mgmt. Co. v. Dyncorp Int’l LLC, 734 F.3d 366, 376
(4th Cir. 2013); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653
n.7 (4th Cir. 2006).
Appellants next claim that their sentences are
substantively unreasonable because they exceed the high end of
the Guidelines ranges that would have applied had they been
convicted of a dismissed count, which underlay the § 5K2.21,
p.s., departure. 1 A departure may be “based on conduct . . .
underlying a charge dismissed as part of a plea agreement in the
case, or underlying a potential charge not pursued in the case
as part of a plea agreement or for any other reason[,] . . .
that did not enter into the determination of the applicable
[G]uideline[s] range.” USSG § 5K2.21, p.s. In support of this
claim, Appellants point to principles, established in our pre-
1
Pursuant to plea agreements, the district court dismissed
Count 3 of the superseding indictment, which charged Appellants
with assaulting, resisting, opposing, impeding, or interfering
with a federal officer in the performance of his official
duties, in violation of 18 U.S.C. § 111(a) (2012).
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Booker 2 precedent, appearing to limit the extent of upward
departures, such as those under § 5K2.21, p.s., that are based
on a defendant’s uncharged or dismissed criminal conduct. See
United States v. Davis, 380 F.3d 183, 193 (4th Cir. 2004);
United States v. Terry, 142 F.3d 702, 709 (4th Cir. 1998). Even
if we were to assume that these principles survived Booker
intact, they would not prevent the district court from departing
to the extent that it did. Appellants’ departure sentences
might have exceeded the limitations imposed by these principles
if the underlying conduct consisted only of the dismissed count.
However, as the district court noted, the conduct underlying the
§ 5K2.21, p.s., departures also consisted of uncharged conduct.
Finally, Tyler claims that his sentence is substantively
unreasonable due to its near equivalence to Brown’s sentence
because Brown, unlike Tyler, was subject to a § 3B1.1 role
adjustment. To the extent Tyler may base his claim on a
comparison of his sentence to a coconspirator’s, see United
States v. Goff, 907 F.2d 1441, 1447 (4th Cir. 1990), superseded
on other grounds by USSG app. C amend. 508; see also United
States v. Sierra-Villegas, 774 F.3d 1093, 1103 (6th Cir. 2014),
petition for cert. filed, __ U.S.L.W. __ (U.S. Mar. 25, 2015)
(No. 14-9048), we conclude that Tyler has not shown that his and
2
United States v. Booker, 543 U.S. 220 (2005).
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Brown’s situations are dissimilar enough that the parity between
their sentences is unwarranted. See 18 U.S.C. § 3553(a)(6);
United States v. Holt, 777 F.3d 1234, 1270 (11th Cir. 2015),
petition for cert. filed, __ U.S.L.W. __ (U.S. May 18, 2015)
(No. 14-9919); United States v. Withers, 100 F.3d 1142, 1149
(4th Cir. 1996); United States v. Hall, 977 F.2d 861, 864 (4th
Cir. 1992).
Accordingly, we conclude that Appellants’ sentences are
neither procedurally nor substantively unreasonable and, thus,
that the district court did not abuse its discretion. We
therefore affirm the district court’s judgments. 3 We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
3
Because Tyler does not assert that the record fails to
disclose what occurred in the district court or that anything
has been misstated or omitted in the record, we deny his pro se
motion to correct the record. See Fed. R. App. P. 10(e). We
likewise deny his pro se motion for leave to file a supplemental
pro se brief. See United States v. Penniegraft, 641 F.3d 566,
569 n.1 (4th Cir. 2011).
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