     Case: 10-41146     Document: 00511831036         Page: 1     Date Filed: 04/23/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 23, 2012
                                     No. 10-41146
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WILLIAM HENRY TURNER, also known as Will,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:09-CR-48-13


Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
        William Henry Turner appeals his conviction and sentence for one count
of conspiring to manufacture, distribute, or possess with intent to manufacture
or distribute inter alia five kilograms or more of cocaine. He was sentenced to
235 months of imprisonment and five years of supervised release. He contends
that the evidence was insufficient to sustain his conviction; the district erred in
admitting evidence that $14,000 was seized from him and another person,
hearsay statements describing that seizure, and evidence that the leader of the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-41146

conspiracy was kidnaped after Turner stole drug proceeds; the district court
erred in denying him a mitigating role adjustment pursuant to U.S.S.G. § 3B1.2;
and the district court erred in determining the amount of cocaine attributable
to him pursuant to § 1B1.3.
      Construing the evidence in the light most favorable to the verdict, there
was sufficient evidence to sustain Turner’s conviction. See United States v.
Shum, 496 F.3d 390, 391 (5th Cir. 2007). Four of Turner’s coconspirators
testified that, in addition to transporting legitimate loads for the trucking
company, Turner knew that he was transporting cocaine and drug proceeds for
the owner of the company. One coconspirator testified that Turner transported
drugs 15 to 20 times. Several of his coconspirators also testified that Turner
knew he was supposed to conceal drug proceeds in his tractor-trailer, that he
was paid more than the rate for transporting legitimate loads, and that he knew
how to avoid weighing stations to conceal the illegal load in his tractor-trailer.
In addition, they testified that on several occasions they sold Turner large
quantities of cocaine, which he then sold or gave to his son for resale, and that
on several occasions Turner helped them coordinate the sale of cocaine to
Turner’s son. This evidence permitted the jury to infer that Turner knew of the
conspiracy to distribute cocaine and participated in the conspiracy by
transporting and distributing cocaine. See United States v. Zamora, 661 F.3d
200, 210 (5th Cir. 2011), cert. denied, 2012 WL 463784 (Mar. 19, 2012) (No.
11-8771); United States v. Maseratti, 1 F.3d 330, 338 (5th Cir. 1993). There was
nothing inherently incredible or insubstantial about the testimony of the
coconspirators linking Turner to the conspiracy. See United States v. Silva, 748
F.2d 262, 266 (5th Cir. 1984). Therefore, their testimony provided sufficient
evidence to sustain Turner’s conviction.
      Any errors in admitting evidence that $14,000 was seized from Turner and
another person, hearsay statements describing that seizure, and evidence that
the leader of the conspiracy was kidnaped after Turner stole drug proceeds were

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                                 No. 10-41146

harmless. See United States v. Sumlin, 489 F.3d 683, 688 (5th Cir. 2007). As
discussed, the evidence of Turner’s guilt was overwhelming. See United States
v. Williams, 957 F.2d 1238, 1244 (5th Cir. 1992).
      With respect to the denial of a mitigating role adjustment for being a
minimal or minor participant in the offense, Turner ignores evidence of his
involvement in the conspiracy. His contribution to the illegal activity was more
than peripheral. See United States v. Villanueva, 408 F.3d 193, 204 (5th Cir.
2005). Further, he has not demonstrated that he was the least culpable by
comparing his conduct to that of his coconspirators. Cf. § 3B1.2, comment. (n.4).
Therefore, the district court did not clearly err in denying Turner a mitigating
role adjustment pursuant to § 3B1.2. See United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); Villanueva, 408 F.3d at 203.
      The presentence report (PSR) attributed 60.5 kilograms of cocaine to
Turner based largely on his coconspirators’ trial testimony. The district court
found that the coconspirators’ testimony was credible for sentencing purposes.
Turner offered nothing, other than his unsworn assertions that his
coconspirators were lying and that he was innocent, to rebut the statements
made by his coconspirators that were contained in the PSR. Accordingly, the
district court did not clearly err in relying on the unrebutted testimony and
statements of Turner’s coconspirators to determine the amount of cocaine
attributable to Turner. See United States v. Ford, 558 F.3d 371, 377 (5th Cir.
2009); Burton v. United States, 237 F.3d 490, 500 (5th Cir. 2000). The other
factual findings Turner objects to could have been resolved by the district court
if he had objected or presented rebuttal evidence. Because he did not object, he
cannot show plain error. See United States v. Lopez, 923 F.2d 47, 50 (5th Cir.
1991).
      The judgment of the district court is AFFIRMED.




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