FILED
United States Court of Appeals
Tenth Circuit
July 14, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 06-3194
ANDRE IVORY,
Defendant - Appellant.
_____________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 06-3217
PAMELA RENEA TYLER,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NOS. 04-CR-20044-01-KHV and 04-CR-20044-02-KHV)
Robin D. Fowler, Bath & Edmonds, P.A., Overland Park, Kansas, for Defendant -
Appellant, Andre Ivory.
Kurt P. Kerns, Ariagno, Kerns, Mank & White, LLC, Wichita, Kansas, for
Defendant - Appellant, Pamela Renea Tyler.
Scott C. Rask, Assistant United States Attorney, (Eric F. Melgren, United States
Attorney, with him on the brief), Kansas City, Kansas, for Plaintiff - Appellee,
United States of America.
Before HARTZ, McCONNELL, and HOLMES, Circuit Judges.
HARTZ, Circuit Judge.
Andre Ivory was indicted on federal drug charges after an informant, Tania
Atkins, purchased crack cocaine from him on several occasions. He then
proceeded to make matters worse for himself, and others, by arranging to have
Atkins murdered. Fortunately, that effort failed. There followed a series of
superseding indictments charging additional defendants with drug offenses and
offenses related to the attempted murder. Most of the defendants entered into
plea agreements, and even Mr. Ivory himself pleaded guilty to all but one of the
drug charges against him. Eventually, three defendants were tried in a joint trial:
Mr. Ivory; his girlfriend, Pamela Renea Tyler; and her brother, Mark McGee.
Mr. Ivory and Ms. Tyler (the Defendants) were convicted of conspiracy to
kill a witness, see 18 U.S.C. § 1512(a)(1)(A), (k), attempting to kill a witness, see
id. § 1512(a)(1)(A), and use of a firearm in conjunction with a crime of violence,
see id. § 924(c)(1)(A). McGee was acquitted on all charges, the Defendants were
acquitted on a charge of conspiracy to distribute cocaine, and Ms. Tyler was
acquitted on a charge of distributing cocaine. Mr. Ivory was sentenced to life
-2-
imprisonment on the drug counts to which he had pleaded guilty. On the charges
relating to the attempted murder, he was sentenced to 240 months’ imprisonment,
to be served concurrently with his sentence on the drug counts; and on the
firearms charge he was sentenced to 120 months, to be served consecutively to
the other sentences. Ms. Tyler was sentenced to 20 years’ imprisonment on each
of the three counts on which she was convicted, the terms to be served
consecutively to one another.
The Defendants appeal their jury convictions on the ground that the
prosecutor improperly commented on their failure to testify. They also raise
challenges to their sentences, primarily arguing the insufficiency of the evidence
to support various enhancements under the United States Sentencing Guidelines
(USSG). Exercising jurisdiction under 28 U.S.C. § 1291, we consolidate the two
appeals and affirm.
I. BACKGROUND
Between March 18 and March 24, 2004, Atkins, an informant for the
Lawrence, Kansas, Police Department, purchased crack cocaine from Mr. Ivory
on five occasions. On March 25 Lawrence police officers executed a search
warrant for drug evidence at the residence that Mr. Ivory shared with Ms. Tyler.
That same day, officers arrested Mr. Ivory on a charge of distributing crack
cocaine.
-3-
On April 29, while Mr. Ivory was still in jail, Atkins was shot while driving
home from work in Lawrence. Kyle Crayton, the assailant, testified at trial that
McGee had offered him money to kill Atkins. He then met with Ms. Tyler,
McGee, and McGee’s girlfriend, Chaconie Edwards, to plan the crime. Kim
Sanders, a friend of Ms. Tyler who helped determine Atkins’s whereabouts,
corroborated Crayton’s testimony that McGee had encouraged Crayton to
participate in the murder plan and that Crayton had been assigned to kill Atkins.
Edwards corroborated Crayton’s testimony that she and Ms. Tyler had met with
him to plan the murder. To establish Mr. Ivory’s involvement, the government
played tape recordings of a number of phone conversations between Mr. Ivory
and Ms. Tyler while he was in jail.
II. DISCUSSION
A. Prosecutorial Misconduct
The recorded conversations between Mr. Ivory and Ms. Tyler do not
explicitly discuss murdering Atkins. The prosecutor contended at trial that some
of their language was code. In particular, he suggested in closing argument that
they used the word money to mean the planned murder of Atkins. The attorneys
for the Defendants responded that the word money should be taken at face
value—that the two were simply concerned about the need to pay for Mr. Ivory’s
attorney. Counsel for McGee reiterated the point, stating, “[N]ot one witness
[told] you that the reference to money is really reference to a killing. Have you
-4-
heard anybody say that other than [the prosecutor]?” R. Vol. XIII, Doc. 508 at
163. In rebuttal the prosecutor argued:
Let’s really get to the crux of the matter. What does “money” mean?
Well, the only persons that use the word “money” in those
conversations were not witnesses that could be called by the
Government. The interpretation of the word “money,” then, has to
be determined based upon—
Id. at 169–170. At this point, counsel for all three defendants moved for a
mistrial on the ground that the prosecutor had commented on their clients’ failure
to testify. The court denied the motion but instructed the jury that it should
disregard the prosecutor’s comment, that the defendants had an absolute right not
to testify, and that the jury should not consider their silence.
On appeal the Defendants challenge the denial of the request for a mistrial.
We review such a denial for abuse of discretion. United States v. Gabaldon, 91
F.3d 91, 94 (10th Cir. 1996). In determining whether a mistrial should have been
granted, we focus on “whether the defendant’s right to a fair and impartial trial
was impaired.” Id. at 93 (ellipses, brackets, and internal quotation marks
omitted).
The Defendants rely on well-settled law protecting a defendant from the
inference that silence at trial implies guilt. The leading case is Griffin v.
California, 380 U.S. 609, 615 (1965). At Griffin’s trial for first-degree murder
the judge instructed the jury that it could infer the truth of evidence against him if
he failed to testify and could “reasonably be expected to deny or explain [the
-5-
evidence] because of facts within his knowledge.” Id. at 610 (internal quotation
marks omitted). The prosecutor asked the jury to draw that inference, pointing to
evidence that Griffin had been seen with the victim on the evening of the murder,
listing facts that he would know, and then asserting that “[t]hese things he has not
seen fit to take the stand and deny or explain. And in the whole world, if
anybody would know, this defendant would know. [The victim] is dead, she can’t
tell you her side of the story. The defendant won’t.” Id. at 611 (internal
quotation marks omitted). The Supreme Court held that both the court’s
instructions and the prosecutor’s remarks violated Griffin’s privilege against self-
incrimination. Id. at 615. As the Court later explained, “Griffin prohibits the
judge and prosecutor from suggesting to the jury that it may treat the defendant’s
silence as substantive evidence of guilt.” Baxter v. Palmigiano, 425 U.S. 308,
319 (1976). We have held that
[t]he test . . . to determine whether the prosecutor’s remark will be
considered a comment on the defendant’s failure to testify is whether
the language used was manifestly intended or was of such character
that the jury would naturally and necessarily take it to be a comment
on the failure of the accused to testify.
United States v. Barton, 731 F.2d 669, 674 (10th Cir. 1984) (internal quotation
marks omitted).
There is, however, an important limitation on this doctrine. If a statement
by the prosecutor that might otherwise be construed as a comment on a
defendant’s failure to testify is a fair response to an argument by a defendant, we
-6-
are unlikely to find error. This proposition was adopted by the Supreme Court in
United States v. Robinson, 485 U.S. 25 (1988). In that case defense counsel had
argued that the government had not allowed the defendant to give his side of the
story. In response the prosecutor pointed out that the defendant “‘could have
taken the stand and explained it to you . . . .’” Id. at 26. The Court held that the
defendant’s right not to testify was not infringed. It reasoned:
[I]t is important that both the defendant and the prosecutor have the
opportunity to meet fairly the evidence and arguments of one
another. The broad dicta in Griffin to the effect that the Fifth
Amendment, “forbids . . . comment by the prosecution on the
accused’s silence,” must be taken in the light of the facts of that
case. It is one thing to hold, as we did in Griffin, that the prosecutor
may not treat a defendant’s exercise of his right to remain silent at
trial as substantive evidence of guilt; it is quite another to urge, as
defendant does here, that the same reasoning would prohibit the
prosecutor from fairly responding to an argument of the defendant by
adverting to that silence. There may be some “cost” to the defendant
in having remained silent in each situation, but we decline to expand
Griffin to preclude a fair response by the prosecutor in situations
such as the present one.
Id. at 33–34 (citation omitted).
We think that Robinson controls this case. After defense counsel stated
that no witness had testified that money was a code word for the murder plot, the
prosecutor could fairly point out that the only persons who used the term money
in the recorded conversations “were not witnesses that could be called by the
Government,” and therefore “[t]he interpretation of the word ‘money’ has to be
determined based upon—.” R. Vol. XIII, Doc. 508 at 169–170. Not only would
-7-
it be “unfair” to forbid the prosecutor to explain why the government produced no
witness who could testify to what the Defendants meant in their conversations,
but the context of the prosecutor’s remark in itself lessened the danger that the
jury would infer guilt from silence. To be sure, the prosecutor’s remark referred
to the failure of the Defendants to testify, but the remark’s purpose was not to
encourage the jury to infer guilt from silence by suggesting that a defendant who
does not testify must have something to hide. Rather, the clear intent was to
explain why the jury must rely on circumstantial evidence to interpret the
recorded conversation. Indeed, the prosecutor did not even suggest that the
failure of the Defendants to testify must mean that the word money referred to the
planned murder. Because the prosecutor focused on a proper inference to draw
from the Defendants’ silence— the need to use other evidence to interpret their
conversations—the jury was less likely to consider other (improper) inferences
that might be drawn. Moreover, the district court’s instruction to the jury, which
we assume that the jury tried to obey, see United States v. Templeman, 481 F.3d
1263, 1266 (10th Cir. 2007), further reduced the danger that the jury would infer
guilt from silence. We do not mean to suggest that absent defense counsel’s
argument (that the government had not produced witnesses to declare the meaning
of the word money), the government’s comment would have been acceptable, even
with the district court’s instruction. But the lessened potential for unfair
-8-
prejudice to the Defendants reinforces our view that the prosecutor’s response
was permissible.
Further supporting our conclusion are opinions from our sister circuits. In
United States v. Beverly, 369 F.3d 516, 543–44 (6th Cir. 2003), defense counsel
argued that if the defendant had committed the robberies with which he was
charged, he would not have stayed in the area. As counsel put it: “‘[T]he
government says this man robbed four banks, he stuck around Columbus for five
years, he waited as his buddies . . . made deals, ignored [the government’s] offer
and then counted on twelve white folks to set him free.’” Id. at 544. The
prosecutor responded, “We found another interesting concept of the law is if you
don’t run, you are not guilty. Ladies and gentlemen, why [the defendant] did
what he did, only he can answer. But he figured probably he didn’t get arrested
in ‘95 or ‘96, so he was okay, that these guys haven’t snitched on him.” Id. at
543–44. The circuit court affirmed the conviction because the prosecutor’s
remark, although indirectly referring to the defendants’ failure to testify to his
motive for not fleeing, was a proper response to defense counsel’s argument.
United States v. Isaac, 134 F.3d 199 (3d Cir. 1998), is similar. Isaac was
charged with transporting marijuana in a boat from Jamaica to St. Thomas in the
Virgin Islands. To prove the charge, the government relied on the testimony of
two confederates, Brown and Reid. (A fourth person involved in the drug
shipment had been left behind in Jamaica.) During closing argument Isaac had
-9-
attacked the credibility of the two witnesses, who apparently did not possess
sterling characters. The prosecutor explained to the jury that his two witnesses
were the best he could do:
Raymond Isaac captained that boat from Jamaica, and the only
people who would know that Raymond Isaac captained that boat from
Jamaica are Raymond Isaac, Conrad Brown, Irvin Reid, and the
fourth individual in Jamaica. Those are the only people.
Id. at 206 (internal quotation marks omitted). On appeal Isaac argued that the
prosecutor had implied that Isaac’s failure to testify was evidence of his guilt.
Relying on Robinson, the court rejected the argument, even though the
prosecutor’s statement came “close to violating Griffin.” Id. It reasoned:
Much of [defendants’] argument was an attack on the credibility of
Brown and Reid, whose testimony was key to proving numerous
elements of the government’s case. The prosecutor began his
rebuttal by conceding that Brown and Reid were probably not the
most upstanding individuals; however, there were no paragons of
virtue present during the smuggling operation who could testify
about it. In this context, the prosecutor’s declaration . . . comes
across as an assertion that the government obtained its evidence from
the only available sources.
Id. at 207. Here, likewise, the prosecutor was trying to explain that the only
available sources for proving the meaning of money were circumstantial evidence.
Cf. United States v. Virgen-Moreno, 265 F.3d 276, 291-92 (5th Cir. 2001)
(prosecutor’s comment that the defendant had failed to call family members as
witnesses to explain tape-recorded conversations was an appropriate response to
statement by defense counsel that the government had not called scientific experts
-10-
to identify the voices on the recordings); United States v. Coleman, 349 F.3d
1077, 1087–88 (8th Cir. 2003) (prosecutor’s comment that a particular witness
not called by the government could have exercised her privilege against self-
incrimination was a fair response to defendant’s suggestion that the government
should have called the witness).
The Defendants’ reliance on Berryman v. Colbert, 538 F.2d 1247 (6th Cir.
1976), is misplaced. In that case the government made five comments regarding
the defendant’s failure to testify, including the following:
All right. Now, finally, to establish the robbery murder, the felony
murder, we are relying almost entirely upon circumstantial evidence.
Nobody was there when the robbery took place. Nobody that we can
bring here to testify. The defendants here, yes, but we can’t get them
to testify. So, it is a matter of relying upon physical facts that were
described to you by the police officer, and from those physical facts,
then you must make an inference, you must say, beyond a reasonable
doubt certain things did happen.
Id. at 1249 (internal quotation marks omitted). The Sixth Circuit concluded that
this argument, particularly the italicized sentence, was “in square violation” of
Griffin. Id. at 1250. But the prosecutor in that case had not been responding to
an argument by defense counsel. Berryman, which was decided before Robinson,
therefore had no occasion to consider the issue that was decisive in Robinson and
is therefore distinguishable on that ground from the case before us.
Finally, Ms. Tyler argues that the prejudicial impact on her of the
prosecutor’s comment cannot be justified by any need to respond to the comment
-11-
by counsel for McGee. But that comment concerned an element of the case
against all three defendants at trial, so the prosecutor could not have responded in
a manner that related only to McGee. It does not matter which defense counsel
made the comment or whether all defense counsel had agreed to divide up their
arguments and assigned a particular attorney to make the comment. Cf. United
States v. Martinez-Larraga, 517 F.3d 258, 267–69 & n.8 (5th Cir. 2008)
(prosecutor’s reference to defendants’ post-arrest silence was proper response to
argument by counsel for one of the defendants). We hold that the prosecutor’s
comment did not deprive the Defendants of a fair trial and therefore denial of the
motion for a mistrial was not an abuse of discretion.
B. Sentencing
The Defendants contend that there was insufficient evidence to support the
district court’s imposition of the following enhancements in calculating their
offense levels under the Sentencing Guidelines: (1) a four-level enhancement for
the offer of money to kill a witness, see USSG § 2A2.1(b)(2); (2) a four-level
enhancement for their leadership roles in the murder conspiracy and a two-level
enhancement to Mr. Ivory’s sentence for his role on the drug counts, see id.
§ 3B1.1(a), (c); (3) an enhancement to Mr. Ivory’s sentence based on the district
court’s drug-quantity calculation, see id. § 2D1.1(a)(3); (4) a two-level
enhancement to Ms. Tyler’s sentence for restraint of the victim, see id. § 3A1.3;
(5) a two-level enhancement to Ms. Tyler’s sentence for the use of juveniles in
-12-
the murder conspiracy, see id. § 3B1.4; and (6) a two-level enhancement to
Ms. Tyler’s sentence for obstruction of justice, see id. § 3C1.1 (2004). Ms. Tyler
also contends that the district court’s use of the preponderance-of-the-evidence
standard in determining the appropriate Guidelines range violated her rights under
the Sixth Amendment, that the district court failed to give proper consideration to
sentencing disparities, and that the discrepancy between her sentence and the
statutory penalty for attempted murder makes her sentence unreasonable.
1. Preponderance-of-the-Evidence Standard
Because of its potential impact on the other sentencing issues raised on
appeal, we first address Ms. Tyler’s contention that the district court’s use of the
preponderance-of-the-evidence standard in determining the appropriate
Guidelines range violated her Sixth Amendment rights. She relies on United
States v. Booker, 543 U.S. 220 (2005), and Cunningham v. California, 549 U.S.
270 (2007), which held that contested factual predicates for increasing a
sentencing range under mandatory guidelines must be found by a jury beyond a
reasonable doubt. We have held, however, that these holdings do not apply to
advisory guidelines, such as the federal Sentencing Guidelines. See United States
v. Rodriguez-Felix, 450 F.3d 1117, 1130 (10th Cir. 2006) (even after Booker,
district court calculating Guidelines sentencing range “may continue to find facts
by a preponderance of the evidence” because court “applies such facts in a
discretionary manner”); United States v. Ellis, 525 F.3d 960, 965 (10th Cir. 2008)
-13-
(distinguishing Cunningham on the ground that it concerned a mandatory, rather
than an advisory, sentencing scheme). We therefore reject this contention.
Accordingly, our standard of appellate review is the same as before Booker. We
review “factual findings for clear error, reversing only if a finding is wholly
without factual support in the record, or after reviewing the evidence, we are
definitively and firmly convinced that a mistake has been made.” Rodriguez-
Felix, 450 F.3d at 1130. We review de novo any claims of legal error. Ellis, 525
F.3d at 964. We address the remaining challenges below and reject them all.
2. Offer of Money to Commit Murder
USSG § 2A2.1(b)(2) provides: “If the offense involved the offer or the
receipt of anything of pecuniary value for undertaking the murder, increase by 4
levels.” The district court applied this enhancement based on (1) Crayton’s
testimony that McGee had offered him money to murder Atkins and (2) a phone
conversation between Ms. Tyler and Mr. Ivory from which it inferred that they
were complicit in McGee’s offer to Crayton. Although the Defendants point out
weaknesses in the evidence relied on by the court, the court’s finding had
adequate evidentiary support.
3. Leadership Roles in the Offenses
USSG § 3B1.1 states:
Based on the defendant’s role in the offense, increase the offense
level as follows:
-14-
(a) If the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was
otherwise extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five or
more participants or was otherwise extensive, increase by 3
levels.
(c) If the defendant was an organizer, leader, manager, or
supervisor in any criminal activity other than described in (a)
or (b), increase by 2 levels.
The commentary to § 3B1.1 provides the following guidance for
determining which enhancement is appropriate:
In distinguishing a leadership and organizational role from one of
mere management or supervision, titles such as “kingpin” or “boss”
are not controlling. Factors the court should consider include the
exercise of decision making authority, the nature of participation in
the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority
exercised over others. There can, of course, be more than one person
who qualifies as a leader or organizer of a criminal association or
conspiracy. This adjustment does not apply to a defendant who
merely suggests committing the offense.
Id., cmt. n.4. The Defendants challenge the four-level enhancement for their roles
in the murder conspiracy and Mr. Ivory challenges the two-level enhancement on
the drug counts.
There is no dispute that the murder conspiracy involved at least five
participants. But Mr. Ivory contends that “[t]he evidence . . . did not establish
that [he] gave directions to anyone regarding any plot to kill Tania Atkins” and
-15-
that his conversations with Ms. Tyler did not “constitute being an organizer or
leader.” Ivory Br. at 42. We disagree. The district court could properly
determine that Mr. Ivory was a leader based on his phone calls with Ms. Tyler, in
which, it could be inferred, he pressured her to carry out the plan to kill Atkins
and discussed with her both who could be chosen to perform the murder and the
best time of day for the crime. After all, he was the one who would benefit most
from the murder. As for Ms. Tyler, she claims that she was merely a manager of
the murder conspiracy and that she therefore should have received only a three-
level enhancement for her role. But the court reasonably found that she was the
“pivot point” of the conspiracy. R. Vol. VII, Doc. 502 at 15:10.
Turning to the drug charge against Mr. Ivory, it involved fewer than five
participants, so § 3B1.1(c) applied. Under that provision the defendant “needs
merely to give some form of direction or supervision to someone subordinate in
the criminal activity for which the sentence is given.” United States v. Backas,
901 F.2d 1528, 1530 (10th Cir. 1990) (defendant was a supervisor under USSG
§ 3B1.1(c) because he supervised another person, a doorman, in a drug-
distribution scheme). The district court based this enhancement on Cheek’s
testimony that she called Mr. Ivory to purchase drugs and Mr. Ivory sent a person
to deliver drugs to her at a convenience store. Although Mr. Ivory contends that
“[t]here was no evidence as to what the respective roles were between [Mr. Ivory]
and [the delivery person],” Ivory Br. at 40, the court could reasonably believe
-16-
Cheek’s testimony and find that Mr. Ivory had directed a subordinate to make the
delivery.
4. Drug Quantity Calculation
Mr. Ivory’s sentence on the drug charges to which he pleaded guilty was
based on the quantity of drugs involved in this criminal activity. See USSG
§ 2D1.1(a)(3). The district court found that quantity to be 170.1 grams of crack
cocaine and therefore calculated an offense level based on at least 150 grams of
crack cocaine. See id. § 2D1.1(c)(3). Of the total 170.1 grams, 102 grams was
attributed in the presentence investigation report (PSR) to Mr. Ivory’s sales to
Cheek. On appeal Mr. Ivory contends only that Cheek’s testimony does not
support a finding of 102 grams but a “drug amount closer to 70 than 100 grams.”
Ivory Br. at 39. Reducing the 102 grams to 70 grams would reduce the 170.1
gram total to 138.1 grams, which is about 12 grams below the 150-gram threshold
for the enhancement imposed by the court.
In our view, the evidence supported the district court’s choice of the
offense level. The court could reasonably view the PSR calculation as a
conservative estimate; and the court further observed that the PSR had not relied
on drug transactions referred to in Ms. Tyler’s grand jury testimony, which could
“offset” a reduction for any excess in the PSR calculation (by accounting for at
least 12 grams). R. Vol. II, Doc. 486 at 84. We note that Mr. Ivory raises no
challenge on appeal to the district court’s reliance on Ms. Tyler’s testimony. The
-17-
district court’s attribution to Mr. Ivory of at least 150 grams of crack cocaine was
not clearly erroneous.
5. Restraint of the Victim
USSG § 3A1.3 provides a two-level increase in the offense level for any
offense when “a victim was physically restrained in the course of the offense.”
The commentary to section 1B1.1 defines physically restrained as “the forcible
restraint of the victim such as by being tied, bound, or locked up.” Id. § 1B1.1,
cmt. n.1(K). The examples in the commentary are illustrative but not exhaustive.
See United States v. Roberts, 898 F.2d 1465, 1470 (10th Cir. 1990).
At trial Crayton testified that he drove a stolen car to Atkins’s place of
work in Lawrence, rammed the stolen vehicle into the front of her van as she was
leaving work, and shot at her through her windshield as she tried to back up.
(Fortunately, his gun jammed so he had to flee—in Edwards’s nearby
car—without accomplishing his task.) The district court ruled that Atkins was
physically restrained during the offense:
Crayton carried out this attempted murder by forcibly restraining the
victim by blocking her car so that she could not escape while he shot
at her and he intentionally rammed the stolen Oldsmobile into her
mini van. And in doing so, temporarily prevented her from
continuing on her way home from work or from escaping in the
attack.
R. Vol. VII, Doc. 502 at 9.
-18-
On appeal Ms. Tyler does not challenge the underlying facts but argues, in
essence, that Atkins was not physically restrained because she was not chased and
tackled, as in United States v. Checora, 175 F.3d 782, 790 (10th Cir. 1999)
(victim physically restrained within the meaning of § 3A1.3 when two defendants
chased and tackled him to prevent his escape). But Checora stated that restraint
occurs when “the defendant’s conduct . . . ke[pt] the victim within bounds or
under control.” Id. at 791. In this case the record supports a finding that the
purpose of ramming Atkins’s vehicle was to trap or immobilize her; because she
could not move forward, Crayton could more readily shoot her. She was being
kept “within bounds or under control” to make her a better target. We find no
error in the district court’s decision to impose the two-level enhancement.
6. Use of Juveniles
USSG § 3B1.4 provides, “If the defendant used or attempted to use a
person less than eighteen years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense, increase by 2 levels.” The
commentary to § 3B1.4 defines “used or attempted to use” to include “directing,
commanding, encouraging, intimidating, counseling, training, procuring,
recruiting, or soliciting,” see id., cmt. n.1. Ms. Tyler challenges the district
court’s finding that she had enlisted the help of two juveniles—Martinez and
Cortez—in the murder conspiracy, contending that (1) the court erred in applying
this enhancement because there was no evidence regarding their ages; and (2)
-19-
even though Martinez and Cortez had assisted in transporting to Lawrence the
stolen car used by Crayton when shooting at Atkins several days later, the
enhancement does not apply because transporting the vehicle was not part of the
offense.
On the first point, contrary to the assertion in her appellate brief, Ms. Tyler
did not object in district court to the PSR’s statements regarding the ages of
Martinez and Cortez. The court therefore could properly deem the ages to be
admitted. See United States v. Tindall, 519 F.3d 1057, 1061–62 (10th Cir. 2008).
As for the juveniles’ role in the conspiracy, Martinez and Cortez were
needed because Crayton refused to drive the stolen car from Ms. Tyler’s house in
Kansas City, Kansas, to Lawrence, where Atkins was to be killed. In United
States v. Tran, 285 F.3d 934, 937–38 (10th Cir. 2002), we held that the
defendants had “used” a juvenile to commit bank fraud when they had employed a
16-year-old driver to transport them from the airport to local banks, where the
defendants cashed counterfeit checks. Here, two juveniles, at Ms. Tyler’s
request, facilitated the offense by transporting the stolen vehicle to a more
convenient location for use in the murder plan. The district court properly
applied § 3B1.4.
7. Obstruction of Justice
USSG § 3C1.1 (2004) provides:
-20-
If (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense, increase the offense level by 2 levels.
The enhancement applies to “threatening, intimidating, or otherwise unlawfully
influencing a co-defendant, witness, or juror, directly or indirectly, or attempting
to do so.” Id., cmt. n.4(a). On appeal Ms. Tyler contends that the enhancement
cannot be sustained on the basis of testimony at sentencing by Detective Scott
Bonham regarding various incidents. But the district court imposed the two-level
enhancement based on Edwards’s trial testimony that Ms. Tyler had threatened
her; it did not rely on Bonham’s testimony. Ms. Tyler does not dispute the
sufficiency of Edwards’s testimony to support the enhancement. Because
Ms. Tyler does not challenge the sufficiency of the evidence actually relied upon
by the district court, she is not entitled to relief.
8. Consideration of Sentencing Disparities
Ms. Tyler challenges the procedural reasonableness of the district court’s
sentence, contending that it failed to give proper consideration to the disparity
between similarly situated defendants, as required by 18 U.S.C. § 3553(a)(6). But
§ 3553(a)(6) does not require the sentencing court to compare the sentences of
codefendants; rather, it looks to uniformity on a national scale. See United States
v. Davis, 437 F.3d 989, 997 (10th Cir. 2008). Moreover, a sentencing court is not
-21-
required to provide a specific discussion of the § 3553 factors for a sentence
falling within the range suggested by the Guidelines. See United States v. Ruiz-
Terrazas, 477 F.3d 1196, 1202 (10th Cir. 2007). All that is required is that the
court provide “a general statement noting the appropriate guideline range and how
it was calculated.” Id. (internal quotation marks omitted). We are satisfied that
the district court did this. As we stated in United States v. Verdin-Garcia, 516
F.3d 884, 898 (10th Cir. 2008):
[I]t is not enough to say, as Appellants do here, that the court failed
for instance to discuss the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty [of] similar conduct. Appellants must have raised a
nonfrivolous argument below showing, by more than hand-waving or
conclusory statements, the likelihood of a sentencing disparity if the
Guidelines were followed. This they did not do.
(citation and internal quotation marks omitted). Ms. Tyler failed to make such a
showing; indeed, she did not complain in district court about a sentencing
disparity. Therefore she is not entitled to relief.
9. Discrepancy Between Guidelines and Statutory Penalty
Ms. Tyler contends that the district court’s sentence is “presumptively
unreasonable because application of the enhancements far exceed the potential
punishment Congress intended to impose for [her] offense.” Tyler Br. at 43. She
further contends that “[i]f the maximum penalty by statute is 20 years and yet the
guidelines sentence is life, then it seems that guidelines are presumptively
-22-
unreasonable since they more than triple the punishment authorized by statute.” 1
Id. We disagree. To begin with, Ms. Tyler’s sentence (on her conviction of three
offenses, not just the attempted murder) is 60 years, not life. More importantly,
there is nothing presumptively unreasonable about imposing consecutive
sentences to reach a sentence within the Guidelines range. On the contrary, a
sentence within the Guidelines range is presumptively reasonable. See United
States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). Of course, if the
Guidelines range exceeds the statutory maximum, the statute must prevail. But if
the defendant has been convicted of several offenses, it is hardly unreasonable to
stack the statutory sentences to reach a presumptively reasonable Guidelines
sentence. See USSG § 5G1.2(d) (providing for consecutive sentences to produce
combined sentence equal to advisory Guidelines sentence). We discern no error.
III. CONCLUSION
We AFFIRM the convictions and sentences of Mr. Ivory and Ms. Tyler.
1
A 2008 amendment to 18 U.S.C. § 1512(a)(3)(B)(ii) struck “20 years” and
inserted “30 years” as the maximum punishment for attempted murder of a
witness. Court Security Improvement Act of 2007, Pub. L. No. 110-177, § 205,
121 Stat. 2537 (2008).
-23-