US v. Andrew Tyner
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:09-cr-00892-GRA-1 Copies to all parties and the district court/agency. [999080819]. [12-6884]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6884
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDREW THOMAS TYNER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson.
G. Ross Anderson, Jr., Senior
District Judge. (8:09-cr-00892-GRA-1)
Submitted:
January 9, 2013
Decided:
April 5, 2013
Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
separate opinion concurring in the result.
Judge Diaz wrote a
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina; Kimberly H. Albro, Research and Writing
Specialist, Columbia, South Carolina, for Appellant. William N.
Nettles, United States Attorney, William J. Watkins, Jr.,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Andrew Thomas Tyner pleaded guilty to coercing a minor
to
engage
in
§ 2251(a)
sexual
(West
conduct,
Supp.
in
2012);
violation
of
18
transportation
U.S.C.A.
of
child
pornography, in violation of 18 U.S.C.A. § 2252A(a)(1) (West
Supp. 2012); and possession of child pornography, in violation
of 18 U.S.C.A. § 2252A(a)(5)(B) (West Supp. 2012).
The district
court originally sentenced Tyner to 180 months of imprisonment.
The
Government
subsequently
filed
a
Fed.
R.
Crim.
P.
35(b)
motion for a sentence reduction based on Tyner’s substantial
assistance.
After
a
hearing,
the
motion, and Tyner now appeals.
district
court
denied
the
For the reasons that follow, we
affirm.
We review a district court’s order granting or denying
a Rule 35(b) motion de novo.
See United States v. Clawson, 650
F.3d 530, 535 (4th Cir. 2011).
Tyner argues that the district
court erred in considering factors other than his substantial
assistance in deciding to deny the Rule 35(b) motion.
While we
have previously held that a district court may not consider any
factor
other
than
substantial
assistance
in
granting
a
Rule
35(b) motion, see id. at 535-37, it is an open question in this
circuit
whether
a
court
may
consider
other
factors
determining that a Rule 35(b) motion should be denied.
in
Compare
United States v. Thornsbury, 670 F.3d 532, 535 n.3 (4th Cir.)
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(noting Clawson left that question open), cert. denied, 133 S.
Ct. 196 (2012), with United States v. Davis, 679 F.3d 190, 196
n.6 (4th Cir. 2012) (noting in dicta that Rule 35(b) limits
consideration to substantial assistance when deciding “whether
or not to grant” such a motion).
However, we decline to decide in this case whether a
district
35(b)
court
motion,
demonstrated
may
consider
because
that
any
committed was harmless.
we
other
factors
in
conclude
that
the
error
the
district
denying
a
Rule
Government
court
has
might
have
See United States v. Boulware, 604 F.3d
832, 838 (4th Cir. 2010) (government may avoid reversal under
harmless error standard if “error did not have a substantial and
injurious effect or influence on the result and we can say with
fair assurance that the district court’s [correct consideration]
would
not
have
affected
the
sentence
imposed”)
(internal
quotation marks and citations omitted).
Accordingly, we affirm the district court’s order.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
We
and
legal
materials
before
this Court and argument would not aid in the decisional process.
AFFIRMED
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DIAZ, Circuit Judge, concurring in the result:
Applying
harmless
error
analysis,
the
government
contends, and the majority accepts, that even if the district
court had first granted the government’s Rule 35(b) motion based
solely on substantial assistance before separately considering
the
extent
of
nevertheless
have
any
sentence
refused
to
reduction,
reduce
the
Tyner’s
court
sentence
would
because
Tyner had already received a significant sentence variance and
there
was
a
likelihood
that
he
would
reoffend.
But
this
conclusion is circular, as the act of granting a Rule 35(b)
motion is the sentence reduction, just as the rejection of a
sentence reduction is the denial of the motion.
In my view, the proper harmless error inquiry would
instead
ask
whether
the
district
court
would
have
denied
a
sentence reduction under Rule 35(b) based solely on the merits
of
Tyner’s
assistance
to
the
government.
Because
I
cannot
confidently answer that question “yes” on this record, I find it
necessary to address what the majority acknowledges is an open
question in this circuit: whether a district court may consider
other factors in denying a Rule 35(b) motion.
I would hold that
it can.
Specifically, I agree with our sister circuits that a
district
court
substantial
may
assistance
properly
in
consider
denying
4
a
Rule
factors
35(b)
other
than
motion.
See
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United States v. Chapman, 532 F.3d 625, 629 (7th Cir. 2008)
(“Nothing in the text of Rule 35(b) limits the factors that may
militate against granting a sentence reduction . . . .”); United
States v. Doe, 351 F.3d 929, 933 (9th Cir. 2003) (holding that a
district
court’s
consideration
of
factors
other
than
a
defendant’s substantial assistance is a proper exercise of its
discretion in denying a Rule 35(b) motion); United States v.
Manella, 86 F.3d 201, 204 (11th Cir. 1996) (“[T]he only factor
that may militate in favor of a Rule 35(b) reduction is the
defendant's substantial assistance.
rule
purports
to
limit
what
Nothing in the text of the
factors
granting a Rule 35(b) reduction.”).
may
militate
against
Accordingly, the district
court did not err in considering the variance Tyner had already
received in sentencing or Tyner’s likelihood of recidivism when
it denied the government’s Rule 35(b) motion.
For these reasons, I concur in the result affirming
the district court’s order.
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