USA v. Daquan Tyson

Filing

Per Curiam OPINION filed : Tyson's sentence is AFFIRMED. Decision not for publication. David W. McKeague and Richard Allen Griffin, Circuit Judges; Gershwin A. Drain, U.S. District Judge for the Eastern District of Michigan, sitting by designation.

Case: 14-3859

Document: 22-2

Filed: 07/22/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0520n.06
No. 14-3859

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Jul 22, 2015
DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAQUAN M. TYSON,
Defendant-Appellant.

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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
OHIO

BEFORE: McKEAGUE and GRIFFIN, Circuit Judges; DRAIN, District Judge.

PER CURIAM. Daquan M. Tyson appeals his sentence. We AFFIRM.
A federal grand jury returned an indictment charging Tyson with eight counts of drug and
firearm offenses and seeking forfeiture of firearms, cash, jewelry, and cars. Pursuant to a plea
agreement, Tyson pleaded guilty to conspiracy to distribute and possess with intent to distribute
cocaine and marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1) and possession
of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(Count 4).
At sentencing, the parties disputed the base offense level for Count 1. Tyson asserted a
base offense level of 30, corresponding to at least 700 but less than 1000 kilograms of marijuana,
on the basis that the marijuana, cocaine, and cash seized by law enforcement converted to 858.67



The Honorable Gershwin A. Drain, United States District Judge for the Eastern District
of Michigan, sitting by designation.

Case: 14-3859

Document: 22-2

Filed: 07/22/2015

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No. 14-3859
United States v. Tyson
kilograms of marijuana. The government argued that Tyson’s relevant conduct included not only
the drugs and cash seized by law enforcement but also the kilogram-sized cocaine wrapper
pulled from the trash of the apartment where Tyson was distributing drugs, the kilograms of
cocaine purchased by a confidential informant from Tyson at that same apartment, and the assets
purchased by Tyson with drug proceeds and forfeited pursuant to the plea agreement. The
government also questioned Tyson’s conversion ratio of $40,000 per kilogram of cocaine.
Overruling Tyson’s objection, the district court found that the government had established by a
preponderance of the evidence at least 1000 but less than 3000 kilograms of marijuana
equivalent, yielding a base offense level of 32. The district court then applied a two-level
reduction in anticipation of Amendment 782 to USSG § 2D1.1(c)’s drug quantity table and a
three-level reduction for acceptance of responsibility. Tyson’s total offense level of 27 and his
criminal history category of IV corresponded to a guidelines range of 100 to 125 months of
imprisonment for Count 1. After considering the sentencing factors under 18 U.S.C. § 3553(a),
the district court sentenced Tyson to 100 months of imprisonment on Count 1 and the mandatory
consecutive 60 months of imprisonment on Count 4.
On appeal, Tyson does not challenge the district court’s attribution of at least 1000 but
less than 3000 kilograms of marijuana equivalent to him. Tyson instead contends that the district
court erred in failing to make a specific finding that the relevant conduct attributed to him
“amounts to an offense for which a criminal defendant could potentially be incarcerated.”
United States v. Long, 457 F. App’x 534, 540 (6th Cir. 2012) (quoting United States v. Shafer,
199 F.3d 826, 830 (6th Cir. 1999)). Because Tyson did not object to the district court’s failure to
make this finding, we review for plain error. See United States v. Vonner, 516 F.3d 382, 385-86
(6th Cir. 2008) (en banc).

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Case: 14-3859

Document: 22-2

Filed: 07/22/2015

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No. 14-3859
United States v. Tyson
The district court was not required to make such a finding because the conduct at issue all
stemmed from Tyson’s drug conspiracy offense. The Long case upon which Tyson relies is
distinguishable. In that case, the defendant challenged the inclusion of drug quantities that were
not part of the underlying drug offense—possession with intent to distribute drugs on a specific
date—and were instead part of what “would have been a conspiracy but for the fact that [the
defendant’s co-conspirator] was a government informant.”

Long, 457 F. App’x at 542.

“Because neither the Government nor the district court identified an offense for which [the
defendant] could potentially be incarcerated in association with” the challenged drug quantities,
this court held that the district court erred in including those drug quantities as relevant conduct.
Id. at 543. Here, the drugs and drug proceeds attributed to Tyson as relevant conduct all arose
from the offense for which he was convicted and sentenced—a conspiracy from January 1, 2008,
to April 25, 2012, to distribute and possess with intent to distribute cocaine and marijuana.
There was, therefore, no need for the district court to identify any other offense for which Tyson
could potentially be incarcerated. The district court did not commit error, plain or otherwise, in
failing to do so.
Accordingly, we AFFIRM Tyson’s sentence.

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