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

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT 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.

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

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 GERARD E. LYNCH,

9 Circuit Judge,

10 JANE A. RESTANI,*

11 Judge.

12

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14 UNITED STATES OF AMERICA,

15

16 Appellee,

17

18 -v.- 08-5477-cr

19

20 JOSEPH M. TYSON, 

21

22 Defendant-Appellant.

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24

25 APPEARING FOR APPELLANT: Robert G. Smith, Assistant

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 Western District of New York (Siragusa, J.),

26 following a jury trial. 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 the
3

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 take into

41 account the totality of the circumstances, giving due

42 deference to the sentencing judge’s exercise of discretion,

43 and bearing in mind the institutional advantages of district

44 courts.” Id. at 190. In short, we “patrol the boundaries
4

1 of reasonableness,” but recognize “that responsibility for

2 sentencing is placed largely in the precincts of the

3 district court.” Id. at 191. 

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

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