United States v. Turnbull ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 98-4532
LUDENCE ALFORD TURNBULL, JR.,
Defendant-Appellant.

On Remand from the United States Supreme Court.
(S. Ct. No. 00-345)
Submitted: November 30, 2001
Decided: December 18, 2001
Before WILKINSON, Chief Judge, and WILLIAMS and
MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Stanley E. Sacks, SACKS & SACKS, Norfolk, Virginia; Doulgas C.
McNabb, Houston, Texas, for Appellant. Kenneth E. Melson, United
States Attorney, Laura Pellatiro Tayman, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. TURNBULL
OPINION
PER CURIAM:
This case is on remand from the United States Supreme Court for
further consideration in light of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (holding that "[o]ther than the fact of a prior convic-
tion, any fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt"). The Court decided Apprendi after a jury
convicted Ludence Turnbull of conspiracy to import cocaine and
cocaine base, in violation of 21 U.S.C. § 963(b) (1994); conspiracy to
distribute and possess with intent to distribute cocaine and cocaine
base, in violation of 21 U.S.C. §§ 841(a), 846 (1994); conspiracy to
launder money, in violation of 18 U.S.C. § 1956(h) (1994); money
laundering (six counts), in violation of 18 U.S.C. § 1956(a)(1)(A)
(1994); and importation of cocaine, in violation of 21 U.S.C. §§ 952,
960 (1994). The district court sentenced Turnbull to concurrent 400-
month sentences on each of the drug conspiracy counts, concurrent
240-month sentences on each of the money laundering counts, and
360 months on the importation count, and we affirmed his convictions
and sentences. United States v. Turnbull, No. 98-4532, 2000 WL
524800 (4th Cir. May 2, 2000) (unpublished), vacated, 531 U.S. 1033(2001). After reviewing his convictions and sentences for plain error
in light of Apprendi, we affirm.1 See United States v. Promise, 255
F.3d 150, 154 (4th Cir. 2001) (en banc) (discussing plain error stan-
dard of review), petition for cert. filed, Sept. 20, 2001 (No. 01-6398).
In Promise, we applied Apprendi to drug offenses in §§ 841 and
846 and held that "the specific threshold [drug] quantity must be
treated as an element of an aggravated drug trafficking offense, i.e.,
charged in the indictment and proved to the jury beyond a reasonable
doubt." Id. at 156-57 (footnotes omitted). However, in the case of
multiple counts of conviction, the guidelines instruct that if the total
punishment mandated by the guidelines exceeds the highest statutory
maximum, the district court must impose consecutive terms of impris-
onment to the extent necessary to achieve the total punishment. See
1
Because Apprendi does not affect the reasoning in our prior opinion
in this case, we adhere to that decision.
UNITED STATES v. TURNBULL 3
U.S. Sentencing Guidelines Manual § 5G1.2(d) (2000). Therefore, the
district court was obligated to impose consecutive sentences on Turn-
bull’s various convictions until it reached the total punishment of one
hundred years. United States v. White, 238 F.3d 537, 542-43 (4th
Cir.), cert. denied, ___ U.S. ___, 121 S. Ct. 2235 (2001). See also
United States v. Roberts, 262 F.3d 286 (4th Cir. 2001) (holding that
if the result of White "stacking" yields the functional equivalent of a
life sentence, defendant cannot demonstrate plain error). Conse-
quently, Turnbull cannot show that his 400-month sentence was "lon-
ger than that to which he would otherwise be subject." White, 238
F.3d at 542. We therefore find no plain error under Apprendi. Nor do
we find plain error in the district court’s application of the enhance-
ment for being a leader or organizer, USSG § 3B1.1(a) (2000), which
Turnbull alleges violates Apprendi. United States v. Kinter, 235 F.3d
192, 200-01 (4th Cir. 2000) (holding that Apprendi does not apply to
judge’s exercise of sentencing discretion within statutory range, so
long as defendant’s sentence is not set beyond maximum term speci-
fied in substantive statute), cert. denied, ___ U.S. ___, 121 S. Ct.
1393 (2001).
Accordingly, we affirm Turnbull’s convictions and sentences.2 We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
2
We deny Turnbull’s motion to hold his appeal in abeyance pending
a decision on the petition for a writ of certiorari in United States v. Prom-
ise.