                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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"USA v. Turner" (2007). 2007 Decisions. Paper 1115.
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NON-PRECEDENTIAL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.




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