United States v. Wayne Turner

     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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