US v. Jaquell Tysor, No. 16-4073 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4073 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAQUELL MAURICE TYSOR, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:15-cr-00165-CCE-1) Submitted: October 28, 2016 Decided: November 16, 2016 Before AGEE, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, John A. Duberstein, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, JoAnna G. McFadden, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jaquell Maurice Tysor pled firearm by a convicted felon. guilty to possession of a The district court imposed a sentence of 120 months’ imprisonment. On appeal, Tysor argues that the district court erred when it did not order his sentence to run concurrent to an anticipated state sentence for relevant conduct, pursuant § 5G1.3(c) (2014). We review deferential to U.S. Sentencing Guidelines Manual For the following reasons, we affirm. Tysor’s sentence abuse-of-discretion for reasonableness standard.” United “under States a v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). consideration of both the This review entails appellate procedural reasonableness of the sentence. and substantive Gall, 552 U.S. at 51. We presume that a sentence imposed within the properly calculated Sentencing Guidelines range is reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). Tysor alleges the district court committed procedural error, specifically in failing to properly apply USSG § 5G1.3 in determining Tysor’s sentence. We have reviewed the record and conclude court that the district properly calculated the Guidelines range, treated the Guidelines as advisory rather than mandatory, gave the parties an opportunity to argue for an appropriate sentence, considered the relevant sentencing factors 2 specific to Tysor’s clearly erroneous case, facts, selected and a sentence sufficiently not based explained on the sentence. Because the court properly engaged in each of these analytical steps and explained its reasoning supporting the sentence, it did not commit procedural error. As to Tysor’s particular argument, we conclude the district court did federal not abuse sentence anticipated state its to run sentence discretion when it ordered consecutively, in part, for relevant conduct. Tysor’s to his Sentencing judges “have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose.” S. Ct. 1463, 1468 (2012). Setser v. United States, 132 Indeed, Setser specifically addressed whether 18 U.S.C. § 3584(a) (2012) allows the imposition of a federal sentence consecutive to an anticipated state sentence. 132 S. Ct. at 1470; United States v. Obey, 790 F.3d 545, 549 (4th Cir. 2015) (“Setser holds that a district court may run its sentence consecutive to an anticipated state sentence.”). Moreover, the Guidelines are advisory, thus the district court was not obligated to impose concurrent sentences pursuant to Cir. § 5G1.3. 2013) Guidelines, United States v. Nania, 724 F.3d 824, 830 (7th (“[G]iven a district the advisory court has nature no of the obligation concurrent sentence, even if § 5G1.3(b) applies.”). 3 Sentencing to impose a Rather, the district court is required to consider the 18 U.S.C. § 3553(a) (2012) factors consecutively in or determining whether concurrently. 18 to run U.S.C. § the sentences 3584(b) (2012). Thus, the district court was within its authority to run part of Tysor’s federal sentence consecutive to the anticipated state sentence, rather than concurrently, and we perceive no error in its decision to do so. Based judgment. legal before on the foregoing, we affirm the district court's We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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