Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-31-2006
USA v. Tyree
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2698
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Tyree" (2006). 2006 Decisions. Paper 1027.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1027
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2698
UNITED STATES OF AMERICA
v.
SCOTT TYREE,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 02-cr-00019-1)
District Judge: Honorable William L. Standish
Submitted Under Third Circuit LAR 34.1(a)
May 16, 2006
Before: RENDELL, VAN ANTWERPEN and WEIS, Circuit Judges.
(Filed May 31, 2006 )
OPINION OF THE COURT
RENDELL, Circuit Judge.
Scott Tyree pleaded guilty in 2003 to traveling in interstate commerce for the
purpose of engaging in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b),
and transporting a minor in interstate commerce with the intent that such minor engage in
sexually explicit conduct for the purpose of producing a visual depiction of such
conduct, in violation of 18 U.S.C. § 2251(a). Prior to the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), the District Court sentenced Tyree to a
180-month term of imprisonment on the first count and a 235-month term on the second,
to be served concurrently. On appeal, we upheld his conviction but remanded for
resentencing in light of Booker. United States v. Tyree, 123 F. App’x 508, 510 (3d Cir.
2005). On remand, the District Court imposed an identical sentence, which Tyree now
appeals.
Tyree challenges his resentencing on three grounds. First, he argues that the
District Court unconstitutionally enhanced his sentence beyond the statutory maximum
based on facts that were neither found by a jury nor admitted as part of his guilty plea.
See Booker, 543 U.S. at 244. Under the United States Sentencing Guidelines, the
District Court was to apply one of three guidelines to Tyree’s violation of 18 U.S.C. §
2423(b), each of which resulted in a different sentence. The District Court determined,
based on its own factual findings, that the guideline resulting in the highest sentence
applied here. Tyree contends that this decision effectively increased his statutory
maximum beyond that provided for by the facts he had admitted, in violation of Booker
and Apprendi v. New Jersey, 530 U.S. 466 (2000).
Though Booker rendered the Sentencing Guidelines advisory, district courts must
nevertheless calculate the correct guidelines range applicable to a defendant’s particular
2
circumstances before imposing a sentence. United States v. Cooper, 437 F.3d 324, 330
(3d Cir. 2006). This requires “precisely the same exercise in judicial fact finding” as it
did prior to Booker, so long as the sentencing court does not treat the resulting guidelines
range as mandatory. United States v. Miller, 417 F.3d 358, 363 (3d Cir. 2005). Because
the District Court clearly recognized that its Guidelines calculation was only advisory,
and because the sentence it imposed for the violation of 18 U.S.C. § 2423(b) did not
exceed the statutory maximum set forth in that provision, we conclude that the District
Court did not err in determining the facts necessary to ascertain the applicable guideline
range for Tyree.
Tyree’s second claim is that the District Court relied on improper information to
arrive at a sentence. In particular, Tyree contends that the District Court should not have
considered his confession to the FBI, his counsel’s in-court statements, and the
government’s review of evidence to determine which guideline applied to his crimes.
Because such evidence was neither an “admission” of facts for Booker purposes nor a
stipulation as to which guideline should apply, Tyree argues that it was improper under
Booker for the District Court to rely upon it.
We reject this argument. Whether the information relied upon by the District
Court qualifies as an admission or stipulation does not bear on the question of whether
the District Court could rely on it in determining sentencing facts. A sentencing court is
permitted to find facts based on a preponderance of the evidence in order to determine a
3
defendant’s advisory Guideline range. Cooper, 437 F.3d at 330. Here, the District Court
relied primarily on Tyree’s confession to the FBI to determine the facts relating to his
criminal conduct, and there is no suggestion that the confession was involuntary or
otherwise invalid. It was clearly proper for the District Court to rely upon it in making
factual findings pertaining to Tyree’s sentence. Nor has Tyree identified any specific
statements by his counsel or by the government that the District Court improperly
considered, and we have found none.
Finally, Tyree argues that his resentencing was unconstitutional because he could
have received a sentence for pre-Booker conduct above that which he would have
received under the applicable Guidelines range. Tyree contends that the Booker remedy
– resentencing under an advisory Guidelines scheme – exposed him to an increase in his
maximum sentence in violation of the ex post facto principle of the Due Process Clause.
We disagree. “[A]pplication of Booker’s remedial holding to cases pending on direct
review does not violate the ex post facto principle of the Due Process Clause.” United
States v. Pennavaria, 445 F.3d 720, 724 (3d Cir. 2006). The Supreme Court clearly
instructed that its remedial holding in Booker should be applied to all cases on direct
review. Booker, 543 U.S. at 268. Moreover, Tyree had fair warning that his conduct
exposed him to a prison term of up to 20 years under 18 U.S.C. § 2251 and that his
sentence could be enhanced based on judge-found facts as long as the sentence did not
exceed the statutory maximum. See Pennavaria, 445 F.3d at 723-24.
4
For the foregoing reasons, we will affirm the sentence imposed by the District
Court.
5