United States v. Taylor

973 F.3d 414

UNITED STATES of America, Plaintiff - Appellee

v.Tyvon D. TAYLOR, Defendant - Appellant

No. 19-30222

United States Court of Appeals, Fifth Circuit.

FILED September 2, 2020

Carol Mignonne Griffing, Assistant U.S. Attorney, John Aaron Crawford, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA, for Plaintiff-Appellee.

Betty Lee Marak, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Middle & Western Districts of Louisiana, Shreveport, LA, for Defendant-Appellant.

Before WIENER, ENGELHARDT, and OLDHAM, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Tyvon Taylor appeals the 120-month sentence imposed by the district court following his plea of guilty to one count of being a felon in possession of a firearm. Taylor contends that: (1) The district court erred when it attempted to reduce the length of his sentence either by ordering that the sentence commence on a particular date or by ordering that he be given credit for time served, and (2) The sentence imposed by the district court is impermissibly ambiguous because the pronouncement that it "run concurrently with any sentence imposed by state authorities" does not specify with which state sentence or sentences, corresponding to four pending state court charges, the federal sentence will run concurrently.

We conclude that the district court's attempted reduction of Taylor's sentence was ineffectual and order a limited remand for the district court to consider, and state on the record, whether that court would have imposed the same sentence regardless. We also conclude that the sentence imposed is ambiguous because it fails to identify the specific state sentence or sentences with which the federal sentence will run concurrently. We therefore order a limited remand for the district court to consider, and state on the record, whether that court would have imposed the same sentence knowing of the ambiguity.

I.

In June 2018, a federal grand jury returned a one-count indictment charging Taylor with being a felon in possession of two firearms, viz. a .40 caliber Springfield Armory pistol and a Smith and Wesson 9mm pistol, beginning on or about August 12, 2017, and continuing until on or about August 15, 2017. In October 2018, Taylor pleaded guilty, and the district court ordered the preparation of a presentence report (PSR).

The "offense conduct" section of the PSR includes information about Taylor's involvement in shootings on August 12 and 13, 2017. That section of the PSR also includes information regarding an August 15, 2017 traffic stop of a vehicle in which Taylor was a passenger during which officers found Taylor in possession of firearms.

The PSR reflects that, during the August 12, 2017 incident, Shreveport (Louisiana) Police Department officers responded to a shooting and located a victim suffering from multiple gunshot wounds. That victim identified Taylor as his assailant. Investigators located .40 caliber and 9mm caliber shell casings at the scene.

The August 13, 2017 incident involved officers responding to a call of shots fired and observing an empty vehicle crashed into a light pole. The PSR noted that investigators located spent shell casings and live rounds in and around the vehicle. The owner stated that Taylor had borrowed the vehicle. Taylor was identified as the person driving and shooting from the vehicle prior to the crash and was observed fleeing from the vehicle prior to the arrival of the police.

As for the August 15, 2017 traffic stop, the PSR recounted that, after procuring an arrest warrant for Taylor, police had arrested him during a traffic stop of a vehicle in which he was a passenger. The driver of the vehicle stated that once police attempted to initiate the stop, Taylor had pointed two handguns at him and accused him of setting up Taylor. As noted, police located a Smith and Wesson 9mm handgun and a .40 caliber Springfield Armory handgun in the vehicle. The analysis conducted on the two firearms in Taylor's possession at the time of his arrest determined that they matched shell casings found at the scenes of the August 12 and August 13 shootings.

The PSR also listed four pending state charges:

(1) July 31, 2017 (case number 351,576) related to possession of a firearm or carrying a concealed weapon by a convicted felon and illegal use of weapons during violence;

(2) August 12, 2017 (case number 351,577) related to attempted second degree murder and possession of a firearm or carrying a concealed weapon by a convicted felon;

(3) August 13, 2017 (case number 351,999) related to illegal use of weapons or dangerous instrumentalities and possession of a firearm or carrying a concealed weapon by a convicted felon; and

(4) August 15, 2017 (case number 351,578) related to possession of a firearm or carrying a concealed weapon by a convicted felon.

Taylor committed the offense of being a felon in possession of a firearm in connection with the commission of attempted second degree murder, so the PSR applied United States Sentencing Guideline ("U.S.S.G.") § 2A2.1(a)(2), which relates to attempted murder, to compute Taylor's base offense level.¹ An increase for a victim sustaining serious bodily injury and a reduction for timely acceptance of responsibility produced a total offense level of 26. That offense level, combined with his criminal history score of 12 and criminal history category of V, produced a guidelines sentencing range of 110 to 137 months, capped at 120 months by a statutory maximum.²

Taylor did not object to the PSR, but he did file a sentencing memorandum in which he requested that his sentence be at the low end of the guidelines range and run concurrently to any sentences imposed in the four pending state court charges, pursuant to U.S.S.G. § 5G1.3(c) :

If ... a state term of imprisonment is anticipated to result from another offense that is relevant conduct to the instant offense of conviction under provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.³

At the sentencing hearing, the district court adopted the factual findings contained in the PSR. The court characterized the relevant conduct as "attempted murder arising out of possession of a firearm by a convicted felon" and involving "not mere possession, but the firing of two different pistols, one a 9-millimeter, one a .40 caliber, both of which were in the possession of this defendant." The sentencing court observed that "[i]t does appear that the multiple charges that [defense counsel] referred to appear to be somewhat temporally related, I think within ... 13 to 16 days." The district court also stated,

Now, I want to make this really clear on the record. Your sentence in this court is going to be run at the same time with any sentence that the state imposes. The state sentence could be longer or it could be shorter than the sentence I imposed on you today. Nonetheless, for the federal part and state part, if the state proceeds, you will serve your state sentence in state custody first, before you are transferred to a federal prison.

It is possible that if the state sentences you—let me just pick a number—to 15 years, how much of that you will actually serve in state custody, I don't know. But in federal custody that will be running at the same time as the state sentence ...

... and it's possible that you could—if they give you a 20-year sentence, that you could serve all of your time in state custody, receive credit for federal custody concurrently, and never see the inside of a federal prison. That's possible.

At the sentencing hearing, defense counsel asked "the Court to specifically give Mr. Taylor the credit for time served from the date he was taken into federal custody, which is the July 9 of 2018 date." Defense counsel noted that Taylor had already served nine or ten months on the state court charges prior to that date, and he speculated that the Bureau of Prisons would not credit Taylor for that time in state custody. Defense counsel suggested that the district court "go back and make the sentence retroactive to the July 9 of 2018 date."

The district court observed that the guidelines sentence had been substantially increased because of the relevant conduct but determined that the application of the attempted murder guideline was appropriate. The court sentenced Taylor to the within-guidelines statutory maximum of 120-months imprisonment and a three-year period of supervised release.

In pronouncing the sentence, the district court stated, "[t]he judgment in this particular matter will show that this sentence is to run concurrently with any sentence imposed by state authorities on the conduct described, and this Court will begin the federal sentence as of the time he is taken into federal custody, which is July 9, 2018." The written judgment provides, "[t]his sentence shall run concurrently with any sentence imposed by state authorities on the conduct described. Defendant shall receive credit for time served from July 9, 2018." At the sentencing hearing, defense counsel objected to the sentence to the extent that the statutory maximum sentence deprived Taylor of the benefit of a guilty plea.

Taylor here takes issue with the sentence imposed by the district court for two reasons. He first contends that the district court erred when it attempted to reduce the length of his sentence either by giving him credit for time served in federal custody prior to the sentencing (as did the oral pronouncement) or by commencing his sentence retroactively (as did the written judgment). Taylor also claims that the sentence is impermissibly ambiguous because it does not specify with which state sentence or sentences (corresponding to the four pending state court charges) the federal sentence will run concurrently. Taylor requests that we vacate his sentence and...