United States v. Tracy Topaz Turner

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13034 APRIL 21, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________

D. C. Docket No. 95-06031-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TRACY TOPAZ TURNER,
a.k.a. Tony Brow,
a.k.a. Tracy Thomas,
a.k.a. Tony H. Brown,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(April 21, 2006)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
 Tracy Topaz Turner, a federal prisoner proceeding pro se, appeals the

district court’s denial of his motion to modify or correct his sentence under 18

U.S.C. § 3582(c)(2). For the reasons set forth more fully below, we affirm.

Turner was convicted by a jury of one count of conspiracy to possess and

two counts of possession with the intent to distribute cocaine base, in violation of

21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to 360 months’ imprisonment

on each count to run concurrently. Turner’s conviction and sentence were affirmed

on appeal in 1997. The record indicates that Turner filed a motion to vacate, which

was denied. Turner then filed a motion for relief from his judgment under Federal

Rule of Civil Procedure 60(b)(4) and (b)(6), arguing, among other things, that his

counsel was ineffective for failing to object to the use of prior convictions to

enhance his sentence. Turner’s motion was denied, and both the district court and

this Court denied his request for a certificate of appealability.

On April 11, 2005, Turner filed the instant motion to modify or correct his

sentence under 18 U.S.C. § 3582(c)(2). He argued that the Supreme Court’s

opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 2d 621

(2005) acted as a clarifying amendment to the guidelines and that Booker should,

therefore, be applied retroactively to permit the district court to resentence him

without the enhancements made to his sentence based on prior convictions under

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U.S.S.G. § 4B1.1. The district court denied the motion after finding that the

Booker decision did not apply retroactively. Turner’s notice of appeal sought

review of the denial of his § 3582(c)(2) motion.

On appeal, Turner does not appear to raise the same claims he raised in the

district court. Rather, he argues pro se that the district court erred by enhancing his

sentence under U.S.S.G. § 4B1.1 because he only had one prior controlled

substance conviction. He further raises a claim of “actual innocence” because he

did not meet the criteria for being a “career offender.” Lastly, he argues that his

trial counsel was ineffective for failing to object to the career offender

enhancement at sentencing.

We conclude that Turner abandoned his original argument regarding his

§ 3582(c)(2) motion by failing to offer any argument in his brief. United States v.

Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998). Furthermore, we decline to

address any of the arguments raised for the first time in Turner’s brief because

these arguments are § 2255 issues, and, as he has previously filed a § 2255 motion

in district court, he failed to properly file a motion seeking this Court’s permission

to raise the arguments as required by statute. See 28 U.S.C. §§ 2244(b)(3)(A)-(B),

2255.

AFFIRMED.

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