United States v. Tyquan Midyett

10-2478-cr
United States v. Tyquan Midyett
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.
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 28th day of November, 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
("ESU") were preparing to execute a search warrant for Apartment
3B of 125 Nostrand Avenue, Brooklyn, New York. Officer
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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
in "plain view." These facts, taken together, "are sufficient to
warrant a person of reasonable caution in the belief that
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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[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).
3. The Fair Sentencing Act
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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
Unidted 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
guidelines range, the statutorily required minimum sentence [is]
the guidelines sentence'" (quoting Guidelines § 5G1.1(b))).
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