United States of America v. Lemuel Tyra

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2734
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
L EMUEL T YRA ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03-CR 1001—Marvin E. Aspen, Judge.
____________
A RGUED J UNE 14, 2006—D ECIDED J ULY 20, 2006
____________
Before B AUER , M ANION , and S YKES , Circuit Judges.
B AUER , Circuit Judge. Lemuel Tyra appeals from the
district court’s order sentencing him to 108 months in
prison for possession with intent to distribute more than
five grams of cocaine base (crack), 21 U.S.C. § 841(a)(1).
Tyra argues that the district court did not follow the proper
post-Booker procedures when deciding his sentence and
failed to adequately explain its reasons for imposing the
sentence that it did. Because the district court followed the
proper procedures when sentencing Tyra, we affirm the
district court’s judgment.
Tyra was arrested after selling crack on seven occasions
to a police informant. He was initially charged with seven
counts of possession with intent to distribute, but under a
plea agreement he agreed to plead guilty to one of these

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2 No. 05-2734
counts and stipulate to the facts underlying the others. He
also admitted selling 63 grams of crack a month for a period
of one year and to dealing drugs for about ten years. At
Tyra’s sentencing, which occurred after the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220
(2005), Tyra asked for a sentence below the applicable
Guidelines range. He argued primarily that a lower sen-
tence was justified because this was his first conviction and
he had been well-behaved while free on bond. The district
court concluded that the fact that this was Tyra’s first
conviction was outweighed by the seriousness of the offense
and Tyra’s admitted history as a frequent drug dealer. The
court then sentenced Tyra to 108 months of imprison-
ment—the low end of the Guidelines range.
Tyra argues that his case should be remanded because it
is not clear that the district court concluded that the
sentence imposed was “sufficient but not greater than
necessary” to meet the goals set forth in 18 U.S.C.
§ 3553(a). He contends that this court cannot assume that
the district court applied the correct standard because it did
“virtually no analysis at all” of the sentencing factors in
§ 3553(a). Tyra is not arguing that his sentence is unrea-
sonable based on a specific § 3553(a) factor. Rather, he
contends that the court failed to follow the proper sentenc-
ing procedures. This court uses a non-deferential standard
of review when determining whether the district court
followed proper post-Booker sentencing procedures. United
States v. Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir.
2005), petition for cert. filed, (U.S. Jan. 5, 2006) (No. 05-
8615). Tyra has not pointed to any case by this court
suggesting that a district court must explicitly say that the
sentence it is imposing is “sufficient but not greater than
necessary.” Furthermore, Tyra himself concedes that a
district court need not “announce any formal litany in post-
Booker sentencings” but must only make “a sufficient
statement of reasons for its sentence to allow a reviewing

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No. 05-2734 3
court some comfort that the correct standards have been
applied.”
We agree with this statement and would like to empha-
size here that district courts need not recite any magic
words at sentencing to assure us that the correct stand-
ard is being used. Instead, after Booker, district courts must
do the following. They must calculate the proper Guidelines
range and consider it even though the Guidelines are no
longer mandatory. United States v. Mykytiuk, 415 F.3d 606,
607 (7th Cir. 2005). They must also allow defendants to
point out any of the § 3553(a) factors that might justify a
sentence outside of the Guidelines range, and must consider
those factors when determining the sentence. United States
v. Dean, 414 F.3d 725, 729-30 (7th Cir. 2005). The district
court need not explicitly discuss all of the factors in
§ 3553(a), but it must show that it has given meaningful
consideration to the factors, United States v. Williams, 425
F.3d 478, 480 (7th Cir. 2005), cert. denied, 126 S. Ct. 1182
(2006), and it must articulate the factors that determined
its chosen sentence, Dean 414 F.3d at 729.
The district court did all of this when sentencing Tyra.
Tyra does not dispute that the court accurately calcu-
lated and considered the applicable Guidelines range. The
court also gave both sides a chance to argue about the
application of the sentencing factors in § 3553(a). Finally,
Tyra is incorrect when he states that the court offered
“virtually no analysis” of the § 3553(a) factors. The court
discussed both the seriousness of the offense and Tyra’s
history and characteristics—namely his extensive history of
drug dealing—when deciding to sentence him to 108
months. The court also explicitly considered Tyra’s argu-
ment that his lack of prior convictions justified a lower
sentence.
Tyra points to our decision in United States v.
Cunningham, 429 F.3d 673 (7th Cir. 2005), as an example
of a case where we have remanded for resentencing when a

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4 No. 05-2734
district court failed to sufficiently articulate the reasons for
its decision. In Cunningham, we remanded because we
found that the district court ignored the extensive evidence
Cunningham presented that his psychiatric and substance
abuse problems led to his being entrapped into committing
the offense. Id. at 678. But Tyra has not pointed to any
similarly compelling arguments that the district court
ignored at his sentencing hearing. In addition, as has
already been mentioned, the district court did consider
Tyra’s principal argument for a sentence below the Guide-
lines range. Tyra may be upset that the district court’s
explanation of its reasons for imposing the 108-month
sentence was not as long or as detailed as he would like.
But little explanation is necessary when a court decides to
impose a sentence within the Guidelines range. Dean, 414
F.3d at 730.
For the foregoing reasons, we A FFIRM Tyra’s sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-20-06

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