United States v. Dwight Turlington ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2586
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UNITED STATES OF AMERICA
v.
DWIGHT TURLINGTON,
Appellant
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 1-02-cr-00673-005)
District Judge: Honorable Jerome B. Simandle
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Submitted Under Third Circuit LAR 34.1(a)
September 19, 2012
Before: SLOVITER, RENDELL and
HARDIMAN, Circuit Judges
(Opinion Filed September 21, 2012)
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John A. Klamo, Esq.
Suite 115
811 Church Road
Tarragon Building
Cherry Hill, NJ 08002
Counsel for Appellant
Mark E. Coyne, Esq.
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Defendant Dwight Turlington appeals the District
Court’s judgment of sentence imposed for his having violated
the terms of his supervised release. Turlington contends that
the District Court erred in sentencing him to a term of five
years’ imprisonment. He also challenges the substantive
reasonableness of the sentence. For the following reasons, we
will affirm.
A.
In 2002, Turlington pled guilty to conspiring to
distribute more than fifty grams of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. In 2004,
the District Court sentenced Turlington to eighty-four
months’ imprisonment and sixty months’ supervised release.
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His sentence was less than one-third of that recommended by
the Sentencing Guidelines.
On October 29, 2008, Turlington began his term of
supervised release. On September 6, 2009, Turlington was
charged with driving under the influence in New Jersey.
Then, on December 7, 2009, New Jersey state police
observed Turlington engaging in three hand-to-hand drug
transactions. When the police approached Turlington and
announced themselves, he attempted to flee. During flight,
Turlington threw a loaded handgun to the ground. The state
police eventually placed Turlington under arrest. They
searched Turlington and found $245 in cash and a plastic bag
of cocaine. Turlington pleaded guilty to a state charge of
possessing a weapon while committing a controlled
dangerous substance crime. The New Jersey Superior Court
sentenced Turlington to three years’ imprisonment for that
offense, to run concurrently with any other federal sentence.
As a condition of his supervised release, Turlington
was prohibited from committing another federal, state or local
crime. He was also prohibited from possessing a firearm or
destructive device. On May 26, 2011, the District Court held
a revocation of supervised release hearing. At the hearing,
Turlington admitted to possessing the handgun and drugs.
The District Court revoked Turlington’s term of supervised
release and sentenced him to a sixty-month prison term.
Turlington filed a timely appeal.1
1
The District Court had jurisdiction pursuant to 18 U.S.C. §
3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). United States v. Young, 634 F.3d 233,
237 (3d Cir. 2011).
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B.
Pursuant to 18 U.S.C. § 3583(e)(3), a district court
may revoke a term of supervised release and “require the
defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense that
resulted in such term of supervised release” provided that
a defendant whose term is revoked under this
paragraph may not be required to serve on any
such revocation more than 5 years in prison if
the offense that resulted in the term of
supervised release is a class A felony, [or] more
than 3 years in prison if such offense is a class
B felony . . . .
In other words, a district court may impose up to a five-year
term of imprisonment after revoking supervised release where
the underlying offense is a class A felony. Where the
underlying offense is a class B felony, a district court may
only sentence the defendant to a maximum of three years’
imprisonment.
The crime for which Turlington was convicted was
considered a class A felony at the time he was originally
sentenced. However, the Fair Sentencing Act of 2010 (FSA)
reduced penalties for crack cocaine offenses so that, at the
time of his revocation hearing, the underlying offense was
classified as a class B felony. As such, he contends that the
District Court should have sentenced him to no more than
three years’ imprisonment. Turlington did not make this
argument to the District Court; therefore, we review his
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challenge to the sentence for plain error. United States v.
Lewis, 660 F.3d 189, 192 (3d Cir. 2011).2
We hold that the District Court was correct to sentence
Turlington based on the original classification of the
underlying offense as a class A felony. In Johnson v. United
States, 529 U.S. 694, 700 (2000), the Supreme Court made
clear that imposition of a new sentence for violating the terms
of one’s supervised release is part and parcel of the first
offense for which the defendant was convicted. The Court
reasoned that “postrevocation penalties relate to the original
offense,” and instructed lower courts to “attribute
postrevocation penalties to the original conviction.” Id. at
701.
The Supreme Court’s decision in McNeill v. United
States, 131 S. Ct. 2218 (2011) supports our holding. In that
case, the Court ruled that, when determining whether an
offense is a “serious drug offense” under the Armed Career
Criminal Act (ACCA), ACCA “requires a federal sentencing
court to consult the maximum sentence applicable to a
defendant’s previous drug offense at the time of his
conviction for that offense. . . . The only way to answer this
backward-looking question is to consult the law that applied
at the time of that conviction.” Id. at 2221-22 (emphasis
added). The Court continued that whether an offense is a
2
Plain error review requires us to first determine whether the
District Court committed an error that is plain. Second, we
ask whether that error affected the defendant’s substantial
rights. Third, we must decide whether to exercise our
discretion to correct that error, provided that the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings. Lewis, 660 F.3d at 192 n.2.
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serious drug offense “can only be answered by reference to
the law under which the defendant was convicted.” Id. at
2222.
The same reasoning applies here. The length of a new
term of imprisonment for violating supervised release—a
penalty which is attributed to the original conviction
according to Johnson—“can only be answered by reference to
the law under which the defendant was convicted.” McNeill,
131 S. Ct. at 2222. Section 3583(e)(3) is, like ACCA,
backward-looking; it focuses on the previous, underlying
conviction. The statute provides that a district court may
resentence a defendant “to serve in prison all or part of the
term of supervised release authorized by statute for the
offense that resulted in such term of supervised release.” 18
U.S.C. § 3583(e)(3) (emphasis added). Thus, a district court
must look to the underlying offense as it existed at the time of
his original sentencing when making decisions authorized by
§ 3583(e)(3).
The Supreme Court’s recent decision on the FSA’s
retroactivity does not change the result. Dorsey v. United
States, 132 S. Ct. 2321 (2012) addresses only the applicability
of the FSA to those defendants who were convicted of crack
cocaine offenses prior to the FSA’s effective date of August
3, 2010, but were sentenced after that date. It does not
address, or disturb, the basic principle that the FSA does not
apply to those defendants who were both convicted and
sentenced prior to the effective date of the FSA. See United
States v. Reevey, 631 F.3d 110, 115 (3d Cir. 2010) (holding
that the FSA is not retroactive to individuals convicted and
sentenced prior to the FSA’s effective date). Thus,
Turlington is incorrect to analogize his situation to that
confronted in Dorsey. He is not like those defendants who
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are convicted of the crack offense prior to the FSA effective
date, but sentenced after the effective date. He was both
convicted and sentenced prior to the FSA’s effective date.
The fact that his supervised release was revoked after passage
of the FSA is of no moment.
In sum, because, according to Johnson, the revocation
of supervised release and imposition of the term of
imprisonment relates back to the underlying conviction, and
because McNeill persuades us that, like ACCA, § 3583(e)(3)
is a backward-looking statute, we reject Turlington’s
argument that the District Court should have sentenced him as
if his underlying offense were a class B felony. Therefore,
the District Court did not plainly err in sentencing Turlington
to five years’ imprisonment, a term which was clearly
authorized by § 3583(e)(3).
Turlington also challenges the substantive
reasonableness of his sentence, which we review for abuse of
discretion. United States v. Young, 634 F.3d 233, 237 (3d
Cir. 2011). Section 3583(e) requires district courts to
consider the § 3553(a) factors when sentencing defendants
upon the revocation of supervised release. Turlington
contends that the District Court did not meaningfully consider
certain mitigating factors such as his guilty plea, his
cooperation with state and federal authorities, the fact that he
received only a three-year sentence for his state convictions,
and his efforts at rehabilitation. After reviewing the record,
we find that the District Court did, however, meaningfully
consider these factors when arriving at the five-year term of
imprisonment.
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C.
Accordingly, we will affirm the judgment of the
District Court.
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