Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-11-2007
USA v. Turner
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1445
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Turner" (2007). 2007 Decisions. Paper 1115.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1115
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NON-PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-1445
UNITED STATES OF AMERICA
v.
RANDY TURNER,
Appellant
________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No.: 2:05-cr-00146-001
District Judge: The Honorable David S. Cercone
________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 11, 2007
Before: SMITH, NYGAARD, and HANSEN,* Circuit Judges
(Filed: May 11, 2007 )
________________________
OPINION
________________________
*
The Honorable David R. Hansen, Senior Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
HANSEN, Circuit Judge.
Randy Turner pleaded guilty to a two-count indictment charging him with (1)
possession with intent to distribute and distributing less than five grams of cocaine
base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C), and (2)
possession with intent to distribute more than five grams of crack cocaine in violation
of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B). The District Court sentenced Turner to 188
months of imprisonment, the low end of the advisory Guidelines range. Turner
appeals his sentence as unreasonable, and we will affirm.
Based on information from a confidential informant (CI) that Turner had been
selling drugs from the CI's apartment for the previous six weeks, the Westmoreland
County Drug Task Force arranged a controlled buy of crack cocaine from Turner.
The Irwin, Pennsylvania, police also surveilled the CI's apartment on April 16, 2005,
and observed seven individuals enter and leave the apartment in the span of one hour,
consistent with drug trafficking.
The following day, an undercover officer carried out the controlled buy and
purchased 2.6 grams of crack cocaine for $200 from Turner at the CI's apartment. As
soon as the transaction was complete, other officers arrested Turner and executed a
search of the apartment with the CI's consent. The search produced an additional 18
2
grams of crack cocaine located in the apartment. A grand jury returned the two-count
indictment based on the quantity involved in the controlled buy and the additional
crack found in the apartment. Turner pleaded guilty to both counts without the
benefit of a plea agreement.
The District Court determined that Turner was a career offender based on a
1990 conviction for possession with intent to deliver heroin and cocaine and a 1997
conviction for possession with intent to deliver heroin. See United States Sentencing
Guidelines Manual (USSG) § 4B1.1(a). Under that guideline, Turner's offense level
was set at 31 (after a three-level adjustment for acceptance of responsibility), and he
was placed in Criminal History Category VI, resulting in an advisory Guidelines
range of 188-235 months. The District Court sentenced Turner at the bottom of the
advisory range to 188 months of imprisonment.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
On appeal, Turner challenges his sentence as unreasonable under United States
v. Booker, 543 U.S. 220 (2005). Turner argues that the District Court gave
presumptive weight to the Guidelines, particularly the career offender Guideline, and
that the career offender Guideline, when combined with the 100:1 ratio sentencing
3
differential between crack and powder cocaine, makes his sentence unreasonable. He
also challenges the constitutionality of the District Court's condition of supervised
release requiring him to cooperate in the collection of DNA under the DNA
Collection Backlog Elimination Act (DNA Act), 42 U.S.C. § 14135a-14135e, as an
unreasonable search under the Fourth Amendment.
In reviewing Turner's challenge to the reasonableness of his sentence, we
consider both whether the District Court considered the sentencing factors laid out
in 18 U.S.C. § 3553(a) and whether the District Court reasonably applied the
sentencing factors to the facts of the particular case. Cooper, 437 F.3d at 330. Our
review nonetheless is deferential, and we decide only "'whether the district judge
imposed the sentence he or she did for reasons that are logical and consistent with the
factors set forth in section 3553(a).'" Id. (quoting United States v. Williams, 425 F.3d
478, 481 (7th Cir. 2005)).
We reject Turner's argument that the District Court gave presumptive weight
to the advisory Guidelines range in setting his sentence. Post-Booker, the Guidelines
"continue[] to play an integral part in sentencing decisions" and "provide a natural
starting point for the determination of the appropriate level of punishment for
criminal conduct." Id. at 331. The other § 3553(a) factors are to be given
"meaningful consideration," but the district court need not make explicit findings as
4
to each § 3553(a) factor as long as the record reveals that the District Court took them
into consideration. Id. at 329. Within-Guidelines sentences are not presumptively
reasonable in this circuit, but "[a] sentence that falls within the guidelines range is
more likely to be reasonable than one outside the guidelines range." Id. at 332.
Further, the defendant still carries the burden of establishing that his sentence is
unreasonable.
Although the District Court stated that it "was obligated to give [the
Guidelines] considerable weight in fashioning an appropriate sentence" (Appellant's
App. at 93), it did not give the Guidelines presumptive weight. See United States v.
Lloyd, 469 F.3d 319, 322-23 (3d Cir. 2006) (rejecting a claim that the district court's
statement that the Guidelines were "deserving [of] great weight" indicated that the
district court gave presumptive weight to the Guidelines where the district court
considered all of the § 3553(a) factors and did not "feel shackled by the guidelines").
First, the District Court explicitly noted that the Guidelines are advisory. (Appellant's
App. at 93.) Further, the District Court considered Turner's "extensive prior criminal
record," finding him to be "clearly a career offender." (Id. at 90.) The District Court
discussed several § 3553(a) factors that led to its sentencing decision, including the
need to reflect the seriousness of the offense, the defendant's extensive prior criminal
history, the need to promote respect for the law, to provide just punishment, and to
5
deter others, and Turner's need for rehabilitation. The record reveals that the District
Court adequately considered all of the relevant § 3553(a) factors and did not give
presumptive weight to the Guidelines.
Turner would have preferred that the District Court ignore the career offender
Guidelines altogether and base his sentence on the quantity of drugs involved and his
criminal history score, which would have placed him in category IV, without
consideration for the career offender Guideline. While his prior convictions may not
have been violent, the District Court was correct to apply the Guidelines as written
and then determine whether the non-violent nature of his prior convictions mitigated
toward a lesser sentence. Booker does not allow a district court to ignore the
Guidelines wholesale; the District Court appropriately started with a properly-
calculated Guidelines sentence in determining Turner's sentence. See United States
v. Grier, 475 F.3d 556, 564-65 (3d Cir. 2007) (en banc) ("District courts must still
conduct the full Guidelines analysis in every case. . . . The only change is that the
final Guidelines range does not bind the district court, but merely serves as one of a
number of factors to be considered in fashioning the ultimate sentence."); United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) ("Courts must continue to
calculate a defendant's Guidelines sentence precisely as they would have before
Booker.").
6
Turner also argues that his sentence is unreasonable based on the 100:1
crack/powder cocaine sentencing differential built into the Guidelines. We recently
clarified that "[p]ost-Booker a sentencing court errs when it believes that it has no
discretion to consider the crack/powder cocaine differential incorporated in the
Guidelines-but not demanded by 21 U.S.C. § 841(b)-as simply advisory at step three
of the post-Booker sentencing process (imposing the actual sentence after considering
the relevant § 3553(a) factors)." Gunter, 462 F.3d at 249. We also made clear,
however, that "the district court is under no obligation to impose a sentence below the
applicable Guidelines range solely on the basis of the crack/powder cocaine
differential," and that it may not "categorically reject the 100:1 ratio and substitute
its own, as this is verboten." Id.
This case is distinguishable from Gunter, which involved use of the drug
quantity table contained in USSG § 2D1.1(c) to calculate the defendant's advisory
Guidelines sentencing range. See id. at 238-39 (explaining the large disparity
between Guidelines ranges under USSG § 2D1.1 based on the difference between
crack and powder cocaine). As detailed in Gunter, Congress established differing
statutory minimum and maximum sentences in 21 U.S.C. § 841(b) based on the
quantity of drugs involved in an offense and required one hundred times more powder
cocaine than crack cocaine for inclusion in a particular statutory range. Id. at 239-40.
7
The Sentencing Commission "incorporated the ratio root and branch into its
calculation of every cocaine offender's guideline sentencing range," id. at 248
(internal marks omitted), in establishing the drug quantity tables in USSG § 2D1.1(c),
which Gunter held to be not binding under Booker, id.
Turner's advisory sentencing range was not based on the drug quantity table in
USSG § 2D1.1(c). Rather, because he was a career offender, his advisory Guidelines
range was calculated under USSG § 4B1.1, which establishes the defendant's offense
level based solely on the statutory maximum penalty for the offense of conviction as
set by Congress. Turner faced a statutory maximum of 40 years on Count 2, §
841(b)(1)(B), resulting in an offense level of 34 (before adjustments for acceptance
of responsibility), USSG § 4B1.1(b)(B). Had Turner's offense involved 18 grams of
powder cocaine instead of crack cocaine, he would have faced a statutory maximum
of 20 years, § 841(b)(1)(C), with a resulting offense level of 32, USSG § 4B1.1(b)(C).
This two-level difference is not based on the 100:1 ratio built into the Guidelines in
§ 2D1.1, the concern at issue in Gunter, but rather on the 100:1 ratio used by
Congress in § 841(b) to establish the applicable statutory maximum sentences for
drug crimes. Of course, once the appropriate advisory Guidelines range was
established under the career offender Guideline, the district court was then free to
treat that range as advisory under Booker.
8
The record reveals that the District Court treated the Guidelines as advisory
once it correctly calculated the advisory Guidelines range and appropriately
considered the relevant factors under § 3553(a). The District Court considered
Turner's arguments about his age and his drug addiction and reasonably relied on his
extensive criminal record and past involvement in drug trafficking in sentencing
Turner within the Guidelines range. Turner's 188-month sentence is reasonable.
Turner did not challenge the District Court's imposition of the supervised
release special condition requiring him to cooperate in DNA collection; we therefore
review his Fourth Amendment constitutional challenge for plain error. See United
States v. Pojilenko, 416 F.3d 243, 249 n.6 (3d Cir. 2005). We have previously held
that the DNA Act survives Fourth Amendment scrutiny. See United States v.
Sczubelek, 402 F.3d 175, 182-87 (3d Cir. 2005), cert. denied, 126 S. Ct. 2930 (2006).
Turner has thus failed to establish that imposing the special condition of cooperating
in DNA collection under the DNA Act plainly violated his constitutional rights. See
Pojilenko, 416 F.3d at 249 n.6 (noting that "any error is not 'plain' when it was not
'clear under current law'").
We will affirm the District Court's judgment of sentence.
9