Federal Appeals court throws out 114-month sentence for violent NC felon

A split panel of the 4th US Circuit Court of Appeals has thrown out a 114-month prison sentence for a North Carolina felon convicted on a gun charge. The court’s majority faulted the trial judge in the case for relying too heavily on violent acts the man committed while awaiting sentencing.

Tyzeem Kwazhon Nixon pleaded guilty in September 2022 to a federal charge of possessing a firearm while already having been convicted of an earlier felony.

“While incarcerated and awaiting sentencing, he committed several acts of violence, including multiple stabbings,” Judge Roger Gregory wrote for the Appeals Court majority. “The district court sentenced Nixon to more than double the Sentencing Guidelines range for his felon in possession charge, relying almost entirely on Nixon’s violent acts while awaiting sentencing to justify the upward departure.”

US District Judge James Dever “also disregarded a report from an unrebutted, qualified medical expert that found that Nixon’s violent conduct was the result of his mental health condition and that, if treated, Nixon would pose little continued threat to society,” Gregory wrote.

“Our Framers were skeptical of the government’s commitment to the procedural rights of the accused –– and rightly so,” Gregory added. “As such, they placed in our Constitution certain inalienable guarantees for criminal defendants, chief among them the right to a trial by a fair and impartial jury.”

“The case before us involves a means to circumvent these constitutional rights through the sentencing process, as Nixon’s sentence was more than doubled based on unrelated, subsequent conduct that could have been — but was not –– charged separately,” the 4th Circuit opinion continued.

Gregory labeled Dever’s sentencing “procedurally unreasonable.” “The district court improperly relied on dissimilar conduct in departing to a higher criminal history category and failed to give proper consideration to intervening categories and offense levels, as required by the Sentencing Guidelines,” Gregory wrote. “We also find that the district court’s rejection of expert testimony, without any counterevidence or basis for doing so, was clearly erroneous.”

“Lastly, we find that the procedural errors in this case were not harmless, as Nixon’s sentence of more than twice the proper Guidelines range is unjustified by the totality of the circumstances in this case,” he added.

Judge James Wynn joined Gregory’s opinion. Judge Pamela Harris dissented. She labeled the sentence “neither procedurally flawed nor substantively unreasonable.”

The district court’s longer sentence for Nixon was “predicated on its finding that Nixon’s criminal history substantially underrepresented his likelihood of recidivism,” Harris wrote. “That determination rested largely on Nixon’s violent conduct while in custody awaiting sentencing.”

“[T]hat conduct included multiple instances in which Nixon assaulted or stabbed his fellow inmates, one of which led to new felony charges against him,” Harris added. “For context, I would add just a bit of detail on one later incident that was important to the district court’s thinking: Upon his arrival for a court appearance at the Terry Sandford [sic] Building in Raleigh, North Carolina, Nixon was found to be concealing in his rectum a piece of metal, four inches long and sharpened at one end like a ‘makeshift … weapon.’”

“When asked by a deputy United States marshal why he had a ‘shank,’ Nixon indicated that it was for ‘people like’ the marshal who was then restraining him,” Harris wrote. “He also advised the deputy that the maximum sentence on his § 922(g) offense was 120 months, and that they ‘couldn’t do anything else to him.’”

“Accounting for all of that post-offense conduct, as well as the violent nature of Nixon’s prior felony, the sixty infractions he incurred while in state custody, and his multiple violations of post-release supervision, the district court found an extremely high risk of recidivism – ‘as close to 100 percent as it can be’ – that was not reflected in Nixon’s criminal history category,” Harris explained. “I am hard pressed to see how that amounts to an abuse of the district court’s broad discretion.”

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