Case: 13-10205 Document: 00512642223 Page: 1 Date Filed: 05/27/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-10205
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 27, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
WAYNE ANTHONY TURNER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-195-1
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
Wayne Anthony Turner appeals his conviction and sentence for
possession of forged securities and aiding and abetting the possession of forged
securities. See 18 U.S.C. §§ 2, 513(a). The district court sentenced Turner to
120 months of imprisonment, above the guidelines range of 46 to 57 months.
Turner argues that his sentence is substantively unreasonable because the
district court based the upward variance on prior convictions involving only
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-10205 Document: 00512642223 Page: 2 Date Filed: 05/27/2014
No. 13-10205
minor offenses and because the district court relied primarily on what it
considered the inadequate sentences imposed in those cases. He further
contends that, because the district court relied on those prior convictions in
imposing a sentence outside the guidelines range, it subjected Turner to double
jeopardy in violation of the Fifth Amendment of the Constitution.
In setting a sentence above the guidelines range, the district court
considered, as it may, Turner’s prior convictions and numerous reoffenses
following light sentences. See United States v. Herrera-Garduno, 519 F.3d 526,
531 (5th Cir. 2008); United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004).
The district court’s consideration of such prior criminal conduct does not
implicate the Double Jeopardy Clause. Sekou v. Blackburn, 796 F.2d 108, 112
(5th Cir. 1986). Furthermore, as to the extent of the variance, we have upheld
similar upward variances in prior cases. United States v. Brantley, 537 F.3d
347, 348-50 (5th Cir. 2008); United States v. Jones, 444 F.3d 430, 433, 441-42
(5th Cir. 2006). Turner has failed to show that the district court abused its
discretion in setting his sentence. See Gall v. United States, 552 U.S. 38, 51
(2007).
Turner additionally argues that he was denied his right to counsel when
an attorney who was the law partner and son of his appointed counsel
represented him in the sentencing phase without his consent or the district
court’s authorization. While such unauthorized substitution may be
inadvisable and not compensable, we find no authority for reversing on that
ground. To the extent that the circumstances in this matter may give rise to a
claim of ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668 (1984), Turner has made no such argument to this court.
The judgment of the district court is AFFIRMED.
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