United States v. Cyrus , 238 F. App'x 929 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4380
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT LEE CYRUS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (4:03-cv-00055-CWH)
Submitted: May 16, 2007 Decided: July 6, 2007
Before WIDENER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
D. Craig Brown, Florence, South Carolina, for Appellant. Alfred
William Walker Bethea, Jr., Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Lee Cyrus appeals his sentence following remand of
235 months of imprisonment and five years of supervised release
imposed after he pleaded guilty to one count of conspiracy to
possess with intent to distribute fifty grams or more of cocaine
base, in violation of 21 U.S.C. § 846 (2000).1 Counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious issues for appeal, but
questioning whether the district court complied with the order of
this court when it imposed essentially the same sentence initially
imposed upon Cyrus.2 Specifically, he challenges the district
court’s three-level enhancement of his sentence under U.S.
Sentencing Guidelines Manual (“USSG”) § 3A1.2(b)(1) (2004), for
“official victim” based on judicially determined facts found by a
preponderance of the evidence and not admitted to by Cyrus,
claiming the enhancement violates his Sixth Amendment rights. In
addition to this issue, Cyrus, pro se, claims error in the district
court’s conclusion that he is not entitled to a three-level
1
We previously affirmed Cyrus’ conviction, but vacated his
sentence, and remanded for resentencing in accordance with United
States v. Booker, 543 U.S. 220 (2005).
2
The district court originally sentenced Cyrus under the then-
mandatory federal sentencing guidelines to 235 months’
imprisonment, five years of supervised release, and ordered payment
of $5434.21 restitution.
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reduction pursuant to USSG § 5C1.2, and further asserts that his
sentence is unreasonable. We affirm.
Contrary to Cyrus’ assertion regarding the district
court’s enhancement of his sentence, Booker did “not in the end
move any decision from judge to jury, or change the burden of
persuasion.” United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005), cert. denied, 127 S. Ct. 121 (2006). In sentencing
defendants after Booker, district courts continue to make findings
necessary for enhancement, applying a preponderance of the evidence
standard, while taking into account that the resulting Guidelines
range is advisory only. Id. The sentencing court is authorized to
make factual findings in order to determine appropriately the
defendant’s advisory range under the guidelines. See United States
v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). Here, the
district court found that the blue lights that were flashing on the
police cars Cyrus drove into while attempting to evade arrest was
sufficient to identify them as official vehicles, thus supporting
the § 3A1.2(b)(1) enhancement. We find no error in this
determination. Thus, Cyrus’ challenge to the district court’s
enhancement based on facts found by the judge by a preponderance of
the evidence is without merit.
Cyrus next challenges the district court’s determination
that Cyrus does not qualify for the safety valve provision of USSG
§ 5C1.2. A defendant who meets all five criteria set out in USSG
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§ 5C1.2 (incorporating §§ 3553(f)(1)-(5)) is eligible for a
sentence below the mandatory minimum. The second of the five
factors requires that a defendant did not use violence or credible
threats of violence or possess a firearm or other dangerous weapon
in connection with the offense. USSG § 5C1.2(2). The fifth factor
requires that the defendant truthfully provide to the Government
all information and evidence the defendant has concerning the
offense or offenses that were part of the same course of conduct or
of a common scheme or plan. USSG § 5C1.2(5).
During resentencing, Cyrus’ counsel contended that Cyrus
provided information that led to the arrest of his co-defendant,
which in turn led to the arrest of a counterfeiter. The Government
countered that Cyrus did not qualify under the safety valve
provisions both because he “rammed the police car with his car,”
asserting that that action constituted not only a credible threat
of violence, but actual violence, and because Cyrus failed to
provide the Government with all the available information he had
with regard to what he was going to do with the three kilos of
crack cocaine or about his prior drug involvement, and Cyrus was
untruthful to the Government, as demonstrated by the fact he
provided false information to the Government and failed a polygraph
test.
The district court denied application of the safety valve
provision to Cyrus on the basis of factor two, as supported by
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Cyrus’ threat voiced on the audiotape that he would “lay [the drug
dealers] down right there” if they discovered that he was using
counterfeit money. In so doing, the district court relied on
United States v. Spring,3 305 F.3d 276 (4th Cir. 2002), for the
proposition that a threat need not be communicated to the person to
whom it is directed to disqualify a defendant from application of
the safety valve provision. In Spring, this court held that the
defendant’s statements about his desire to hurt his probation
officer constituted “threats” that warranted an increase under the
Sentencing Guidelines even though the defendant did not communicate
such threats or intend to communicate the threats directly to the
probation officer. 305 F.3d at 281. The enhancement at issue in
Spring was a two-level increase pursuant to USSG § 2A6.1(b)(2), to
be applied for making more than two threats.
In support of his claim on appeal, Cyrus directs his
argument only to the second criterion, contending that he did not
make a threat that was credible; that the threat was made eight
days prior to the offense, thus demonstrating that it was not
connected to his offense; that the district court’s reliance on
United States v. Spring was misplaced because he made only one
threat rather than two threats; and that the fact he had no
dangerous weapon on his person or in his car when he was arrested
3
The case is incorrectly cited in the transcript as “United
States v. String.”
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supports the conclusion that the threat was not credible. He does
not dispute, nor even reference, the fact that he failed to
disclose to the Government what he intended to do with the three
kilos of crack cocaine, or what his prior involvement in drug
dealing had been, and failed even to mention the failed polygraph
test.
We find Cyrus’ challenge to the district court’s reliance
on Spring to be misplaced. While Cyrus correctly noted that the
enhancement affirmed in Spring related to a guideline enhancement
other than the safety valve provision, the logic supporting the
affirmance is the same. As this court noted in Spring, cases and
statutes interpreting the definition of the word “threat” have
uniformly held that communication to the intended victim is not
necessary to support the crime or an enhancement based on the
threat, unless communication is an essential element of the crime.
Spring, 305 F.3d at 280-81 (citing United States v. Patillo, 431
F.2d 293, 295-96 (4th Cir. 1970) (holding that statements to co-
worker expressing desire to kill President constituted true threats
for purposes of 18 U.S.C. § 871 (2000)), aff’d on reh’g en banc,
438 F.2d 13 (4th Cir. 1971); United States v. Siegler, 272 F.3d
975, 978 (7th Cir. 2001) (upholding 18 U.S.C. § 876 (2000)
conviction based on letter to defendant’s associate instructing him
to murder prosecution witness)). Hence, the district court
properly denied Cyrus the benefit of the safety valve reduction
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even though Cyrus’ threat was not communicated to his probation
officer. Moreover, aside from the threat Cyrus made concerning his
probation officer, there was ample additional evidence before the
district court that would otherwise disqualify Cyrus from the
benefit of the safety valve provision of § 5C1.2.
Cyrus next contends that his sentence was unreasonable.
After Booker, courts must calculate the appropriate guideline
range, making any appropriate factual findings. United States v.
Davenport, 445 F.3d 366, 370 (4th Cir. 2006). The court then
should consider the resulting advisory guideline range in
conjunction with the factors under 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2006), and determine an appropriate sentence that is
“sufficient but not greater than necessary,” to achieve the goals
of § 3553(a). Davenport, 445 F.3d at 370. We will affirm a post-
Booker sentence if it “is within the statutorily prescribed range
and reasonable.” United States v. Moreland, 437 F.3d 424, 433 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). We have repeatedly
held that “[A] sentence within the proper advisory Guidelines range
is presumptively reasonable.” United States v. Johnson, 445 F.3d
339, 341 (4th Cir. 2006); see also United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006), petition for cert. filed, __
U.S.L.W. __ (U.S. July 21, 2006) (No. 06-5439); United States v.
Johnson, 445 F.3d 339, 341-42 (4th Cir. 2006); United States v.
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Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309(2006).
Here, the district court appropriately treated the
guidelines as advisory, and sentenced Cyrus within that range. The
issues Cyrus raises to support his claim that his sentence is
unreasonable, i.e., that he is a first-time offender, that the
offense was not a continuing criminal conspiracy, that he has
strong family ties, and that he cooperated with law enforcement
authorities upon his arrest, all were raised at sentencing and
considered by the district court. The final issue, that he
contracted rheumatic fever while being housed at Lexington Federal
Medical Center, was not raised in the district court at sentencing,
thus there was no error in the district court’s failure to consider
this claim in determining Cyrus’ sentence. Neither Cyrus nor the
record suggest any information so compelling as to rebut the
presumption that a sentence within a properly calculated guideline
is reasonable. We find no error in the calculation of the advisory
guideline range.4 Given this, and Cyrus’ failure to provide
4
At resentencing, the district court specifically referred to
Booker, to the advisory nature of the guidelines, and to the
§ 3553(a) factors, stating that it specifically considered those
factors. It adopted some and rejected other findings in the
presentence report, and in addition to the § 3553(a) factors, the
court considered the guidelines range and other relevant guideline
factors. The court was familiar with Cyrus’ history and
background, having presided over his trial. Also, the court had
sentenced Cyrus originally and was familiar with the details of his
case from the initial sentencing hearing. Cyrus’ presentence
report outlined his offense conduct and his criminal history.
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evidence to overcome the presumption of reasonableness we accord
such a sentence, we reject Cyrus’ claim of unreasonableness.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Cyrus’ sentence. This court requires
that counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on the
client.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
Finally, Cyrus took the opportunity to argue at length about the
strength of the evidence against him during the resentencing
hearing, providing additional information about the § 3553(a)
factors prior to the district court’s imposition of sentence.
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