United States v. Wilbur Turner ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1740
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Wilbur Turner
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 21, 2020
Filed: December 4, 2020
[Unpublished]
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Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
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PER CURIAM.
Wilbur Turner appeals the nine-month prison sentence he received for violating
the conditions of his supervised release, arguing the sentence is substantively
unreasonable. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
In 2013, Turner pleaded guilty to one count of conspiracy to distribute crack
cocaine and cocaine in violation of 21 U.S.C. §§ 841(b)(1)(B), 846. The district
court1 sentenced him to 70 months (later reduced to 60 months) in prison and four
years of supervised release. Turner began serving his first term of supervised release
in December 2018. A month later, the district court revoked his supervised release
for failure to comply with mandatory drug testing and use of a controlled substance,
and imposed a seven-month prison sentence and a three-year term of supervised
release. Turner began serving his second term of supervised release in August 2019.
In April 2020, the district court again revoked his supervised release for several
violations, including failure to participate in mandatory substance abuse testing and
use of a controlled substance, and imposed a nine-month prison sentence and a one-
year term of supervised release. This appeal concerns the second revocation
sentence.
We review the substantive reasonableness of a revocation sentence under the
same deferential abuse of discretion standard we apply to an initial sentence. See
United States v. Hall, 931 F.3d 694, 696 (8th Cir. 2019). The district court abuses its
discretion when it “(1) fails to consider a relevant factor that should have received
significant weight; (2) gives significant weight to an improper or irrelevant factor; or
(3) considers only the appropriate factors but in weighing those factors commits a
clear error of judgment.” United States v. Marshall, 891 F.3d 716, 719 (8th Cir.
2018) (per curiam) (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc)).
Turner argues that his second revocation sentence is substantively unreasonable
because the district court failed to consider mitigating factors that would have
warranted a shorter sentence, particularly in light of the ongoing COVID-19
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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pandemic. First, he argues the district court gave insufficient weight to his “strong
history of employment.” Second, Turner asserts the district court failed to consider
that he is the sole financial provider for his wife and her grandchildren. Third, he
contends the district court did not take into account that his hyperthyroidism,
hypertension, and anxiety could elevate his risk of severe illness if he were to contract
COVID-19 while incarcerated.
Based on our review of the record, we find the district court sufficiently
considered the sentencing factors, 18 U.S.C. §§ 3553(a), 3583(e)(3), and did not rely
on any improper factor or commit a clear error of judgment. The district court also
addressed and gave appropriate consideration to the mitigating factors that Turner
raised in support of a lower sentence. Turner’s sentence of nine months was within
the advisory Guidelines range of 5–11 months, and nothing in the record suggests the
sentence was an abuse of the district court’s discretion. See Feemster, 572 F.3d at
464 (“[I]t will be the unusual case when we reverse a district court sentence—whether
within, above, or below the applicable Guidelines range—as substantively
unreasonable.” (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir.
2008))).
We affirm the judgment of the district court.
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