United States of America v. Tyrelle Smiley

United States Court of Appeals
For the Eighth Circuit
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No. 23-2605
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United States of America
Plaintiff - Appellee
v.
Tyrelle Smiley
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: March 11, 2024
Filed: April 25, 2024
[Unpublished]
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Before COLLOTON, Chief Judge, ERICKSON and KOBES, Circuit Judges.
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PER CURIAM.
Tyrelle Smiley went on a spree through several small towns in Nebraska,
burgling churches, businesses, and a post office. After a stint in state prison for the
church and business burglaries, he went straight into federal pre-trial custody and
pleaded guilty to forcibly breaking into the post office with intent to commit a
larceny or other depredation, 18 U.S.C. § 2115. The district court sentenced him to
30 months in prison, varying up from his Guidelines range of 18 to 24 months and

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explaining that Smiley’s time in state prison had not deterred him, so his federal
sentence needed to be incrementally higher to prevent him from striking again. See
18 U.S.C. § 3553(a)(2)(B).
On appeal, both Smiley and the Government argue that we should remand
because the court varied up based on a clearly erroneous fact—that Smiley broke
into the post office after he was released from state prison. We agree. The sentence
is vacated, and we remand for resentencing. See United States v. Holmes, 192 F.
App’x 583, 584 (8th Cir. 2006) (per curiam).
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