US v. Jikeem Tyler

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to amend/correct [999542159-2] in 14-4688; denying Motion for leave to file [999514484-2] in 14-4688 Originating case number: 1:14-cr-00026-CCE-2 Copies to all parties and the district court/agency. [999596735].. [14-4688, 14-4691]

Appeal: 14-4688

Doc: 46

Filed: 06/05/2015

Pg: 1 of 9

UNPUBLISHED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:

Before MOTZ, KING, and DUNCAN, Circuit Judges.

June 5, 2015

Appeal: 14-4688

Doc: 46

Filed: 06/05/2015

Pg: 2 of 9

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 14-4688

Doc: 46

Filed: 06/05/2015

Pg: 3 of 9

PER CURIAM:
Jikeem

Gabriel

“Appellants”)

Tyler

appeal

and

their

Jakota

respective

upward-departure

sentences,

Manual

p.s.

(2013),

guilty

pleas

§ 5K2.21,

following

their

Raye

see

48-month

U.S.

by

the

conspiracy

(together,

and

Sentencing

imposed
to

Brown

50-month
Guidelines

district

to

court

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).
appeal,

Appellants

sentences.

challenge

the

reasonableness

of

On

their

We affirm.

Appellants claim that their sentences are both procedurally
and

substantively

reasonableness,
standard.”
United

applying

Gall

States

unreasonable.

v.

v.

“a

United

Lymas,

781

We

review

deferential
States,
F.3d

552

a

for

abuse-of-discretion
U.S.

106,

sentence

111

38,

(4th

41

(2007);

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

explain

clearly

the

chosen

erroneous

facts,

or

sentence—including

deviation from the Guidelines range.’”

failing
an

to

adequately

explanation

for

any

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)
3

(defining

harmlessness

of

Appeal: 14-4688

Doc: 46

Filed: 06/05/2015

nonconstitutional

error).

Pg: 4 of 9

“Only

if

we

determine

that

the

district court has not committed procedural error do we proceed
to

assess

‘the

imposed.’”

substantive

reasonableness

of

the

sentence

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]

one[s]

ultimately

imposed,”

they

§ 3553(c)(2)

challenge.

have

different
preserved

than
their

the

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

of

court

entered

the

written

statements

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
4

Appeal: 14-4688

Doc: 46

sentence[s]

Filed: 06/05/2015

imposed.”

Pg: 5 of 9

Boulware,

604

F.3d

at

838

(internal

quotation marks omitted).
Next, Appellants claim that the district court failed to
adequately

explain

the

sentencing departure.

reasons

for

the

extent

of

their

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

Appellants’

do

so

here.

assertions,

we

Additionally,
conclude

that

and

the

contrary

district

to

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

departure sentences.

authority’”

to

impose

the

United States v. Diosdado-Star, 630 F.3d

359, 364 (4th Cir. 2011) (quoting Rita v. United States, 551
U.S.

338,

356

(2007)).

explanations

demonstrate

individualized

assessments

Further,

the

that

it

and,

district

court’s

accorded

thereby,

oral

Appellants

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
5

adjustment

under

USSG

Appeal: 14-4688

Doc: 46

§ 3B1.1(b).

Filed: 06/05/2015

Pg: 6 of 9

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

applying the § 3B1.1(b) upward adjustment.

as

a

basis

for

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,

substantive

reasonableness

of

we

turn

the

our

attention

sentences,

to

“tak[ing]

the
into

account the totality of the circumstances, including the extent
of any [deviation] from the Guidelines range.”
at 51.

Gall, 552 U.S.

“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,

[divergence].’”

on

a

whole,

justify

the

extent

of

the

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.
6

Although

Appeal: 14-4688

Doc: 46

they twice

Filed: 06/05/2015

repeat

this

Pg: 7 of 9

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

[G]uideline[s] range.”

the

determination

USSG § 5K2.21, p.s.

of

the

applicable

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).

7

Appeal: 14-4688

Doc: 46

Booker 2

Filed: 06/05/2015

Pg: 8 of 9

appearing

limit

precedent,

to

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.
United

States

v.

Davis,

380

F.3d

183,

193

(4th

Cir.

2004);

United States v. Terry, 142 F.3d 702, 709 (4th Cir. 1998).
if

we

were

to

assume

that

these

principles

survived

See

Even
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,

adjustment.
comparison

unlike

To
of

the

his

Tyler,
extent

sentence

was
Tyler

to

a

subject
may

to

base

a

§ 3B1.1

his

claim

coconspirator’s,

see

role
on

a

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).

8

Appeal: 14-4688

Doc: 46

Filed: 06/05/2015

Pg: 9 of 9

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.

therefore affirm the district court’s judgments. 3

We

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).

9