United States v. Tyra, Lemuel ( 2006 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-2734
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    LEMUEL TYRA,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 03-CR 1001—Marvin E. Aspen, Judge.
    ____________
    ARGUED JUNE 14, 2006—DECIDED JULY 20, 2006
    ____________
    Before BAUER, MANION, and SYKES, Circuit Judges.
    BAUER, Circuit Judge. Lemuel Tyra appeals from the
    district court’s order sentencing him to 108 months in
    prison for possession with intent to distribute more than
    five grams of cocaine base (crack), 21 U.S.C. § 841(a)(1).
    Tyra argues that the district court did not follow the proper
    post-Booker procedures when deciding his sentence and
    failed to adequately explain its reasons for imposing the
    sentence that it did. Because the district court followed the
    proper procedures when sentencing Tyra, we affirm the
    district court’s judgment.
    Tyra was arrested after selling crack on seven occasions
    to a police informant. He was initially charged with seven
    counts of possession with intent to distribute, but under a
    plea agreement he agreed to plead guilty to one of these
    2                                                No. 05-2734
    counts and stipulate to the facts underlying the others. He
    also admitted selling 63 grams of crack a month for a period
    of one year and to dealing drugs for about ten years. At
    Tyra’s sentencing, which occurred after the Supreme
    Court’s decision in United States v. Booker, 
    543 U.S. 220
    (2005), Tyra asked for a sentence below the applicable
    Guidelines range. He argued primarily that a lower sen-
    tence was justified because this was his first conviction and
    he had been well-behaved while free on bond. The district
    court concluded that the fact that this was Tyra’s first
    conviction was outweighed by the seriousness of the offense
    and Tyra’s admitted history as a frequent drug dealer. The
    court then sentenced Tyra to 108 months of imprison-
    ment—the low end of the Guidelines range.
    Tyra argues that his case should be remanded because it
    is not clear that the district court concluded that the
    sentence imposed was “sufficient but not greater than
    necessary” to meet the goals set forth in 18 U.S.C.
    § 3553(a). He contends that this court cannot assume that
    the district court applied the correct standard because it did
    “virtually no analysis at all” of the sentencing factors in
    § 3553(a). Tyra is not arguing that his sentence is unrea-
    sonable based on a specific § 3553(a) factor. Rather, he
    contends that the court failed to follow the proper sentenc-
    ing procedures. This court uses a non-deferential standard
    of review when determining whether the district court
    followed proper post-Booker sentencing procedures. United
    States v. Rodriguez-Alvarez, 
    425 F.3d 1041
    , 1046 (7th Cir.
    2005), petition for cert. filed, (U.S. Jan. 5, 2006) (No. 05-
    8615). Tyra has not pointed to any case by this court
    suggesting that a district court must explicitly say that the
    sentence it is imposing is “sufficient but not greater than
    necessary.” Furthermore, Tyra himself concedes that a
    district court need not “announce any formal litany in post-
    Booker sentencings” but must only make “a sufficient
    statement of reasons for its sentence to allow a reviewing
    No. 05-2734                                                 3
    court some comfort that the correct standards have been
    applied.”
    We agree with this statement and would like to empha-
    size here that district courts need not recite any magic
    words at sentencing to assure us that the correct stand-
    ard is being used. Instead, after Booker, district courts must
    do the following. They must calculate the proper Guidelines
    range and consider it even though the Guidelines are no
    longer mandatory. United States v. Mykytiuk, 
    415 F.3d 606
    ,
    607 (7th Cir. 2005). They must also allow defendants to
    point out any of the § 3553(a) factors that might justify a
    sentence outside of the Guidelines range, and must consider
    those factors when determining the sentence. United States
    v. Dean, 
    414 F.3d 725
    , 729-30 (7th Cir. 2005). The district
    court need not explicitly discuss all of the factors in
    § 3553(a), but it must show that it has given meaningful
    consideration to the factors, United States v. Williams, 
    425 F.3d 478
    , 480 (7th Cir. 2005), cert. denied, 
    126 S. Ct. 1182
    (2006), and it must articulate the factors that determined
    its chosen sentence, 
    Dean 414 F.3d at 729
    .
    The district court did all of this when sentencing Tyra.
    Tyra does not dispute that the court accurately calcu-
    lated and considered the applicable Guidelines range. The
    court also gave both sides a chance to argue about the
    application of the sentencing factors in § 3553(a). Finally,
    Tyra is incorrect when he states that the court offered
    “virtually no analysis” of the § 3553(a) factors. The court
    discussed both the seriousness of the offense and Tyra’s
    history and characteristics—namely his extensive history of
    drug dealing—when deciding to sentence him to 108
    months. The court also explicitly considered Tyra’s argu-
    ment that his lack of prior convictions justified a lower
    sentence.
    Tyra points to our decision in United States v.
    Cunningham, 
    429 F.3d 673
    (7th Cir. 2005), as an example
    of a case where we have remanded for resentencing when a
    4                                                 No. 05-2734
    district court failed to sufficiently articulate the reasons for
    its decision. In Cunningham, we remanded because we
    found that the district court ignored the extensive evidence
    Cunningham presented that his psychiatric and substance
    abuse problems led to his being entrapped into committing
    the offense. 
    Id. at 678.
    But Tyra has not pointed to any
    similarly compelling arguments that the district court
    ignored at his sentencing hearing. In addition, as has
    already been mentioned, the district court did consider
    Tyra’s principal argument for a sentence below the Guide-
    lines range. Tyra may be upset that the district court’s
    explanation of its reasons for imposing the 108-month
    sentence was not as long or as detailed as he would like.
    But little explanation is necessary when a court decides to
    impose a sentence within the Guidelines range. 
    Dean, 414 F.3d at 730
    .
    For the foregoing reasons, we AFFIRM Tyra’s sentence.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—7-20-06