using plain error where “a defendant has failed to object to a purported error before the sentencing court” (quoting United States v. Knight, 266 F.3d 203, 206 (3d Cir. 2001))
How later courts described this case
- using plain error where “a defendant has failed to object to a purported error before the sentencing court” (quoting United States v. Knight, 266 F.3d 203, 206 (3d Cir. 2001))
Written by the judges who cited it.
The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 23-1352
_______________
UNITED STATES OF AMERICA
v.
TYSHEEN GOTT,
also known as LB,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 20-cr-108-1)
District Judge: Hon. Malachy E. Mannion
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 23, 2024
Before: KRAUSE, BIBAS, and AMBRO, Circuit Judges
(Filed: October 11, 2024)
_______________
OPINION*
_______________
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
KRAUSE, Circuit Judge.
Appellant Tysheen Gott raises a variety of challenges to his conviction and
sentence for his role in a drug-trafficking conspiracy in violation of 21 U.S.C. § 846, §
841(a)(1), and § 841(b)(1)(A). With the exception of the District Court’s imposition of a
general sentence across several counts, which the Government concedes as error, none
have merit. Thus we will vacate and remand to the District Court to correct its general
sentence, and we will affirm in all other respects.
I. DISCUSSION1
On appeal, Gott contends (1) that he received ineffective assistance of counsel
and, in addition, that the District Court erred in (2) declining to take judicial notice of
documents from a separate proceeding, (3) its drug quantity calculation, (4) its
application of various sentencing enhancements, and (5) its imposition of a general
sentence on Counts 2–9 in excess of the statutory maximum. We address these
arguments in turn.
A. Ineffective Assistance of Counsel
First, we address Gott’s contention that he received ineffective assistance of
counsel. We do not consider ineffective-assistance claims on direct appeal unless “the
record is sufficient to allow determination of ineffective assistance of counsel” without an
evidentiary hearing. United States v. Polk, 577 F.3d 515, 520 (3d Cir. 2009) (internal
quotation marks omitted). That standard is not met here.
1
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
Gott’s primary contentions are that his counsel—who admitted on the record to
being an alcoholic—did not acquire medical records from his hospitalization and
outpatient recovery after he was shot in 2016 and refused to file an objection when the
Government filed an Information to Establish Prior Conviction under 21 U.S.C. § 851.
But the record has not been sufficiently developed to support a determination that his
counsel’s strategy was unreasonable or that Gott was prejudiced. See Massaro v. United
States, 538 U.S. 500, 505 (2003). Without an evidentiary hearing, we cannot tell whether
alcoholism affected his counsel’s representation, nor can we resolve the parties dispute
about the possible effect of his hospitalization and recovery in 2016. We thus decline to
consider Gott’s ineffective-assistance claim at this stage.
B. Judicial Notice
Gott also contends the District Court should have taken judicial notice of a
different judge’s opinion from another drug dealer’s case because the opinion reflected
that this dealer was known by the same nickname, L.B., that the Government ascribed to
Gott.
Gott is correct, as a general matter, that “[j]udicial records are a source of
reasonably indisputable accuracy when they record some judicial action such as
dismissing an action, granting a motion, or finding a fact,” and “[c]ourts can properly
notice prior judicial acts for the purpose of acting upon them.” United States v.
Ferguson, 681 F.3d 826, 834 (6th Cir. 2012) (internal quotation marks omitted). But
notice of a judicial opinion is appropriate “not for the truth of the facts recited therein, but
for the existence of the opinion.” S. Cross Overseas Agencies, Inc. v. Wah Kwong
3
Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999). Here, Gott requested notice not for
the existence of the opinion, but to establish the truth of the facts in it. The District Court
thus did not err in concluding that “we don’t judicially take notice of or admit court
opinions” for that purpose. App. 237.
C. Drug Quantity Calculation
We review a district court’s calculation of the drugs attributable to a defendant in a
narcotics conspiracy for clear error, and “[w]e permit some degree of estimation . . .
because the government usually cannot seize and measure all the drugs that flow
through” such a large operation. United States v. Williams, 974 F.3d 320, 378 (3d Cir.
2020) (internal quotation marks omitted). Still, the information underlying these
calculations “must have ‘sufficient indicia of reliability to support its probable
accuracy.’” United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993) (quoting U.S.S.G. §
6A1.3(a)).
In this case, Gott argues that the drug estimates in the Presentence Investigation
Report fall short of that standard.2 His argument, however, rests on a selective reading of
the record. For example, he contends the calculation of drugs purchased by one witness
erroneously assumed she bought one brick of heroin and fentanyl every day, when she
2
The Government urges us to review for plain error on the ground that Gott did not
preserve his argument concerning drug quantity. See United States v. Couch, 291 F.3d
251, 252–53 (3d Cir. 2002) (using plain error where “a defendant has failed to object to a
purported error before the sentencing court” (quoting United States v. Knight, 266 F.3d
203, 206 (3d Cir. 2001))). But Gott did preserve the argument by protesting “internal
inconsistencies” between testimony and the Government’s notes and objecting that “the
government is asking the Court to rely upon unreliable information to determine that 14
kilograms is the appropriate drug quantity.” App. 624.
4
really bought one every other day. But that witness actually testified that she bought “a
brick every day or every other day.” App. 436 (emphasis added). Similarly, Gott claims
that another witness estimated she purchased only two bricks from him every day, but her
testimony reflects that she bought as many as four bricks in a day. He also protests that
the District Court erred in adopting the estimate that one brick is equivalent to one gram
of drugs, claiming the DEA lab report reflected an average of approximately 0.5 grams
per brick. But the same report makes clear that some bricks contained considerably more
than one gram of drugs, and one of Gott’s suppliers testified that the baggers he
employed used roughly one gram of drugs per brick.
On this record, we cannot say the District Court clearly erred in arriving at its drug
calculation.
D. Sentencing Enhancements
Gott next takes issue with the three sentencing enhancements applied by the
District Court.
First, Gott argues that he did not qualify as an organizer or leader of the
conspiracy under U.S.S.G. § 3B1.1(a) and, instead, was “at most” a manager or
supervisor, pointing to evidence that he engaged in “[m]arketing, maintaining relations
with customers and suppliers, [and] negotiating prices.” Opening Br. 59. These
activities, he contends, correspond to what we recognized in United States v. Adair, 38
F.4th 341 (3d Cir. 2022). But Adair does not set out a definitive list of factors and,
indeed, acknowledged that engaging in conduct consistent with being a manager or
supervisor “does not preclude [a defendant] from also being a leader.” 38 F.4th at 355.
5
The question, rather, is whether the defendant exercised the “high-level directive
power or influence over criminal activity needed for the leader enhancement,” id. at 354,
and in Gott’s case, he did. Gott had runners to service customers, sought to create bank
accounts under other people’s names to hide proceeds, and regularly dispatched
subordinates to obtain drugs in New Jersey. Although some of Gott’s conduct was
consistent with being a middleman, there was sufficient evidence of his “high-level
directive power or influence” for the District Court to reasonably conclude the leadership
enhancement was warranted. Id.
Second, Gott objects to the District Court’s application of the enhancement for
engaging in criminal conduct as a livelihood under U.S.S.G. § 2D1.1(b)(16)(E).
According to Gott, the District Court wrongly focused on revenue rather than income in
applying the enhancement. But the Court’s statements on the record make it clear that it
was, in fact, focused on Gott’s involvement in drug activity since 1998 and his
occupation exclusively as a drug dealer since 2014. Gott points to no contrary evidence
in the record, and the Court’s findings provide ample support for this enhancement.
The third enhancement to which Gott objects is for maintaining a premises for the
purpose of manufacturing or distributing drugs under U.S.S.G. § 2D1.1(b)(12). As he
describes it, the distribution or storage of drugs was “at most, incidental or collateral use
of the residence,” Opening Br. 64, whereas the enhancement is appropriate only when
drug distribution is the sole use of the premises. Gott is mistaken. For the premises
enhancement to apply, the Government need only prove, by a preponderance of the
evidence, that the defendant “(1) knowingly (2) open[ed] or maintain[ed] any place (3)
6
for the purpose of manufacturing or distributing a controlled substance.” United States v.
Carter, 834 F.3d 259, 261 (3d Cir. 2016) (quoting United States v. Johnson, 737 F.3d
444, 447 (6th Cir. 2013)) (alterations in original). And here, the evidence at trial,
including testimony of customers who purchased on the premises, established that Gott
had stored and sold drugs at the residence for many years.
E. Statutory Range
Lastly, Gott argues that the District Court’s sentence exceeds the statutory
maximum of twenty years on Counts 2–9, which charge violations of 21 U.S.C. §
841(b)(1)(C). The Court imposed a general sentence of “[t]hree hundred (300) months
[twenty-five years] on Counts 1 through 9, to run concurrently.” App. 6. As the
Government concedes, this was error because “[u]nder the Sentencing Guidelines, a
district court must impose a sentence on each count.” United States v. Andrews, 681 F.3d
509, 532 (3d Cir. 2012). The District Court did so for Count 1, but not for Counts 2–9.
Thus, we will vacate Gott’s sentence and remand “for the limited purpose of allowing the
District Court to clarify the sentence imposed on each count of conviction.” Id.
II. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s judgment of
conviction, vacate Gott’s sentence, and remand to the District Court for the limited
purpose of clarifying the sentence imposed on each count of conviction.
7