The Honorable Jane A. Restani, Chief Judge of the * United States Court of International Trade, sitting by designation. 08-5477-cr United States v. Tyson



### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT



## SUM MARY ORDE R

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED

ON OR AFTER J

ANUARY 1, 2007, I S P E RM I T T E D AN D I S G OVE RN E D BY FE DERAL R ULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. WHEN CITING A S UMMAR Y O RD E RIN A
DO CUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL

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1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 15 day of March, two thousand ten. th 5 PRESENT: DENNIS JACOBS, 6 7 Chief Judge, 8 GERARD E. LYNCH, 9 Circuit Judge , 10 JANE A. RESTANI, * 11 Judge. 12 13 - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA, 14 15 16 Appellee, 17

-v.- 08-5477-cr 18 19 20 JOSEPH M. TYSON, 21 22 Defendant-Appellant. 23 - - - - - - - - - - - - - - - - - - - -X 24
APPEARING FOR APPELLANT: Robert G. Smith, Assistant 25 26 Federal Public Defender (Jay S.2 1 Ovsiovitch, on the brief), 2 Office of the Federal Public 3 Defender for the Western 4 District of New York, Rochester, 5 NY. 6 7 APPEARING FOR APPELLEE: Stephan J. Baczynski, Assistant 8 United States Attorney (Kathleen 9 M. Mehltretter, United States 10 Attorney), Office of the United 11 States Attorney for the Western 12 District of New York, Buffalo, 13 NY. 14 15 16 Appeal from a judgment of the United States District 17 Court for the Western District of New York (Siragusa, J.). 18 19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 20 AND DECREED that the judgment of the district court be 21 AFFIRMED

. 22 23 Defendant-appellant Joseph M. Tyson appeals from a 24 judgment of conviction entered in the United States District 25 Court for the Wes ter n D ist ric t o f N ew Yor k ( Sir agu sa, J. ), 26 fol low inga jur y t ria l. We assume the parties’ familiarity 27 with the underlying facts, the procedural history, and the 28 issues presented for review. 29 30 “The standard of review for evaluating the district 31 court’s ruling on a suppression motion is clear error as to 32 the district court’s factual findings, viewing the evidence 33 in the light most favorable to the government, and de novo 34 as to questions of law.” United States v. Rodriguez, 356 35 F.3d 254, 257 (2d Cir. 2004). 36 37 The district court properly denied Tyson’s motion to 38 suppress the tangible evidence seized from his apartment on 39 September 28, 2005. Magistrate Judge Feldman credited 40 Detective McLaughlin’s testimony that he read aloud to Tyson 41 the consent to search form and the handwritten notation 42 including “CPU & electronic storage devices” in the scope of 43 the search. The district court thus agreed with Magistrate 44 Judge Feldman that “the Government established at the3 1 [suppression] hearing, by a preponderance of the evidence, 2 that the defendant voluntarily consented to the search of 3 his residence.” There is therefore no merit in Tyson’s 4 arguments to the contrary. 5 6 “The applicability of the fruit of the poisonous tree 7 doctrine is a question of law reviewed de novo.” United 8 States v. Awadallah, 349 F.3d 42, 71 (2d Cir. 2003) 9 (internal quotation marks omitted). The district court 10 properly denied Tyson’s motion to suppress an inculpatory 11 statement he gave on October 11, 2005. Assuming arguendo 12 that Detective Lambert unreasonably seized Tyson’s apartment 13 in violation of the Fourth Amendment, the inculpatory 14 statement is “so attenuated [from the seizure] as to 15 dissipate the taint.” Wong Sun v. United States, 371 U.S. 16 471, 487, 491 (1963) (internal quotation marks omitted). 17 “[T]he Supreme Court has declined to adopt a per se or but 18 for rule that would make inadmissible any evidence [] which 19 somehow came to light through a chain of causation that 20 began with an illegal” seizure. Mosby v. Senkowski, 470 21 F.3d 515, 520 (2d Cir. 2006) (internal quotation marks 22 omitted). We instead evaluate the “causal connection” 23 between a Fourth Amendment violation and the statement at 24 issue. Brown v. Illinois, 422 U.S. 590, 603 (1975). At the 25 time Tyson provided the inculpatory statement, he was not in 26 custody and he had received Miranda warnings; there is no 27 indication of flagrant or purposeful misconduct on Detective 28 Lambert’s part. See Mosby, 470 F.3d at 521 (enumerating 29 four indicia of voluntariness). Tyson thus voluntarily 30 provided the inculpatory statement, breaking any causal 31 connection. 32 33 We apply a “particularly deferential form of abuse-of34 discretion review” to evaluate the substantive 35 reasonableness of a sentence. United States v. Cavera, 550 36 F.3d 180, 188 n.5 (2d Cir. 2008) (in banc). “We will set 37 aside a district court’s substantive determination only in 38 exceptional cases where the trial court’s decision cannot be 39 located within the range of permissible decisions.” Id. at 40 189 (internal quotation marks omitted). “[W ]e tak e i nto 41 acc oun t t he tot ali ty of the ci rcu mst anc es, gi vin g d ue 42 def ere nce to th e s ent enc ingju dge ’s exe rci se of dis cre tio n, 43 andbe ari ng in min d t he ins tit uti ona l a dva nta ges ofdi str ict 44 cou rts .” Id . a t 1 90. I n s hor t, we “pa tro l t he bou nda rie s4 1 of rea son abl ene ss, ” b ut rec ogn ize “t hat re spo nsi bil ityfo r 2 sen ten cin g i s p lac ed lar gel y i n t he pre cin cts ofth e 3 dis tri ct cou rt. ” Id. at 19 1. 4 5 Under this highly deferential standard of review, 6 Tyson’s stacked sentence of 65 years is substantively 7 reasonable. The district court explicitly decided to 8 harness the stacking provision set forth in Guideline 9 section 5G1.2(d) to effectuate the advisory Guideline 10 sentence of life imprisonment. See U.S.S.G. § 5G1.2(d). 11 While the district court recognized that Tyson is “going to 12 die in prison,” it underscored the risk he posed as a 13 “predator” of children, his “horrific conduct,” and “the 14 effect it will have on [a] 9 year old” victim. The district 15 court thus concluded that the sentence was not only 16 sufficient, but also necessary to effectuate the purposes of 17 sentencing set forth in 18 U.S.C. § 3553. Accordingly, we 18 cannot say that this sentence falls outside the range of 19 permissible decisions. 20 21 Finding no merit in Tyson’s remaining arguments, we 22 AFFIRM the judgment of the district court. 23 24 25 FOR THE COURT: 26 CATHERINE O’HAGAN WOLFE, CLERK 27 28 29 30