U.S.
v.
Tyler

United States Court of Appeals, Second CircuitSep 20, 2007
241 Fed. Appx. 779 (2d Cir. 2007)

No. 05-5155-cr.

September 20, 2007.

Appeal from judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge).

UPON DUE CONSIDERATION AND AFTER ARGUMENT, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that judgment of the district court be AFFIRMED.

Ruth M. Liebesman, Law office of Ruth M. Liebesman, Esq., New York, NY, for Appellant.

Kelly Currie, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney, Susan Corkery, Margo K. Brodie, Assistant United States Attorneys, on the brief), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Appellee.

PRESENT: ROGER J. MINER, CHESTER J. STRAUB and JOSE A. CABRANES, Circuit Judges.


SUMMARY ORDER

Defendant-appellant Darryl Tyler appeals from a judgment of conviction, after a jury trial, in the District Court of racketeering in violation of 18 U.S.C. § 1962(c); racketeering conspiracy in violation of 18 U.S.C. § 1962(d); narcotics conspiracy in violation of 21 U.S.C. § 846; and conspiracy to commit murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5). On appeal, Tyler argues that (1) he was improperly sentenced on the basis of judge-found facts; (2) the District Court erroneously denied him a downward departure on the basis of the victim's conduct in provoking his murder pursuant to U.S.S.G. § 5K2.10, the childhood abuse suffered by defendant-appellant, and evidence of his pre-arrest rehabilitation; (3) the District Court further erred by refusing to sentence him for manslaughter pursuant to New York Penal Law § 125.25 rather than murder; and (4) his criminal history was improperly calculated. We assume the parties' familiarity with the facts and procedural history of the case.

We have considered all of appellants' arguments and find them to be without merit. We also conclude that, in sentencing defendant-appellant Tyler, the District Court made no procedural error and that the sentence is not unreasonably lengthy. The judgment of the District Court is AFFIRMED.