USA v. James Tyson, Jr.

Filing

UNPUBLISHED OPINION FILED. [09-41245 Affirmed ] Judge: HRD , Judge: CES , Judge: JWE Mandate pull date is 11/12/2010 for Appellant James Tyson Jr. [09-41245]

USA v. James Tyson, Jr.

Doc. 0

Case: 09-41245 Document: 00511269684 Page: 1 Date Filed: 10/21/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41245 S u m m a r y Calendar October 21, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. J A M E S TYSON, JR., D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 1:09-CR-36-1

B e fo r e DEMOSS, STEWART, and ELROD, Circuit Judges. P E R CURIAM:* J a m e s Tyson, Jr., was convicted by a jury of one count of possession of a f i r e a r m by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Tyson was s e n te n c e d to 117 months of imprisonment and a three-year term of supervised r e le a s e . He appeals his conviction and sentence. T y s o n argues that the evidence was insufficient to sustain his conviction. He specifically asserts that the Government failed to show that he possessed a fir e a r m . Tyson contends that the firearm at issue in this case was found in an
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

Dockets.Justia.com

Case: 09-41245 Document: 00511269684 Page: 2 Date Filed: 10/21/2010 No. 09-41245 a r e a where it could have been accessed by others and that there was no physical o r forensic evidence establishing his connection to the weapon. He argues that t h e Government's case relied solely upon the unreliable testimony of a police o ffic e r who purportedly saw Tyson discard the firearm during a foot chase. W e will uphold the jury's verdict "if a reasonable trier of fact could c o n c lu d e that the elements of the offense were established beyond a reasonable d o u b t , viewing the evidence in the light most favorable to the verdict and d r a w in g all reasonable inferences from the evidence to support the verdict." U n ite d States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008), cert. denied, 129 S. Ct. 2 0 6 7 (2009) (internal marks and citation omitted). This court does "not weigh e v id e n c e or assess the credibility of witnesses, and the jury is free to choose am ong reasonable constructions of the evidence." United States v.

R a m o s -C a r d e n a s , 524 F.3d 600, 605 (5th Cir. 2008) (citation omitted). G iv e n the evidence, a reasonable trier of fact could conclude beyond a r e a s o n a b le doubt that Tyson committed the charged offense. See Jackson v. V ir g in ia , 443 U.S. 307, 319 (1979). An officer observed Tyson discard a shiny o b je c t during a foot chase. The officer returned to retrieve the item immediately a ft e r apprehending Tyson and found a firearm in the specific location where he o b s e r v e d Tyson discard the shiny object. There were no shiny objects in the area o t h e r than the firearm and that there was no indication that the firearm had b e e n laying in the area for an extended period of time. Although Tyson

c h a lle n g e s the reliability of the officer's testimony, the jury's verdict suggests t h a t it found the testimony to be credible, and we must accept this credibility d e t e r m in a t io n . See Ramos-Cardenas, 524 F.3d at 605. Thus, viewing the

e v id e n c e in the light most favorable to the jury's verdict, there was sufficient e v id e n c e to support Tyson's conviction. See Jackson, 443 U.S. at 319. T y s o n also contends that the district court improperly calculated his base o ffe n s e level by erroneously classifying his prior Texas state conviction for a s s a u lt-fa m ily violence as a "crime of violence." He concedes that the conviction 2

Case: 09-41245 Document: 00511269684 Page: 3 Date Filed: 10/21/2010 No. 09-41245 is a "crime of violence" under United States Sentencing Guidelines Manual (U .S .S .G .) § 4B1.2 and this court's precedent in United States v. Anderson, 559 F .3 d 348, 354-56 (5th Cir.), cert. denied, 129 S. Ct. 2814 (2009). However, he a r g u e s that the more narrow definition of "crime of violence" provided by U .S .S .G . § 2L1.2 should apply and that his prior offense would not constitute a " c r im e of violence" under that definition. He also contends that the treatment o f his offense as a "crime of violence" violates the holding of Begay v. United S ta te s , 553 U.S. 137 (2008). T y s o n was assessed a base offense level pursuant to U.S.S.G. § 2K2.1(a)(2), w h ic h provides for an offense level of 24 if, inter alia, the defendant committed t h e instant offense after sustaining at least two felony convictions for crimes of v io le n c e . Section 2K2.1(a)(2) adopts the definition of "crime of violence" set forth in § 4B1.2. § 2K2.1 cmt. n.1. Thus, for purposes of § 2K2.1(a)(2), "crime of v io le n c e " is an offense punishable under federal or state law by a term of im p r is o n m e n t exceeding one year that either "(1) has as an element the use, a t t e m p t e d use, or threatened use of physical force against the person of another, o r (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or o t h e r w is e involves conduct that presents a serious potential risk of physical in ju r y to another." § 4B1.2(a). We previously interpreted the statute at issue here, Texas Penal Code § 22.01(b), and determined that the offense satisfies the definition of "crime of v io le n c e " under § 4B1.2 because the offense involves a serious potential risk of p h y s ic a l injury to another. See Anderson, 559 F.3d at 355. We specifically r e j e c t e d Tyson's argument that the definition of "crime of violence" under § 2L1.2(b) applies for purposes of § 2K2.1(a)(2). Id. Thus, Tyson's arguments a r e foreclosed by Anderson, and we are bound by this precedent absent an en b a n c decision or intervening Supreme Court decision. See United States v. R o d r ig u e z -J a im e s , 481 F.3d 283, 288 (5th Cir. 2007). The Supreme Court's d e c is io n in Begay is not inconsistent with our precedent; we effectively held in 3

Case: 09-41245 Document: 00511269684 Page: 4 Date Filed: 10/21/2010 No. 09-41245 A n d e r s o n that an offense under § 22.01(b)(2) involves the type of purposeful, v i o le n t , and aggressive conduct necessary to satisfy the definition of "crime of v io le n c e " in § 4B1.2. Anderson, 559 F.3d at 355-56; see Begay, 553 U.S. at 145. Tyson further contends that his sentence was unreasonable because it was g r e a t e r than necessary to accomplish the goals set forth in 18 U.S.C. § 3553(a). He does not challenge the district court's calculation of the applicable guideline r a n g e . He also concedes that this court affords a presumption of reasonableness t o sentences imposed within the properly calculated guideline range. Nevertheless, Tyson argues that this presumption of reasonableness violates U n ite d States v. Booker, 543 U.S. 220 (2005), because it gives undue influence t o the guideline range. He also asserts that the factors used to justify his s e n te n c e were already taken into account by the Guidelines and that the district c o u r t did not engage in a significant and meaningful analysis of any mitigation fa c t o r s . Because Tyson did not object to the reasonableness of his sentence in t h e district court, this court reviews for plain error. See United States v. Peltier, 5 0 5 F.3d 389, 392 (5th Cir. 2007). T y s o n 's challenge to the presumption of reasonableness is foreclosed by R ita v. United States, 551 U.S. 338, 346-51 (2007). Furthermore, the record r e fle c t s that the district court considered the Guidelines and the § 3553(a) fa c t o r s in fashioning an appropriate sentence. Because the district court e x e r c is e d its discretion to impose a sentence within the properly calculated g u id e lin e range, the sentence is presumptively reasonable, and this court may in fe r that the district court considered all the factors for a fair sentence set forth in the Guidelines. See id.; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2 0 0 6 ); United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Therefore, T y s o n has not shown plain error. See Peltier, 505 F.3d at 392. A F F IR M E D .

4