United States v. Turner

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-11617 MARCH 14, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 4:08-cr-00029-SPM-WCS-14
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
TERRY PATRICK TURNER,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(March 14, 2011)
Before TJOFLAT, CARNES and BLACK, Circuit Judges.
PER CURIAM:
Terry Patrick Turner appeals his 188-month sentence imposed after he was
found guilty of conspiracy to distribute and possessing with intent to distribute
more than 50 grams of actual methamphetamine and more than 500 grams of a
mixture and substance containing methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1),(b)(1)(A)(viii), and 846. Turner claims the district court clearly erred
in applying a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1).
Specifically, he contends: (1) there was no evidence presented establishing the
time period during which he was alleged to have possessed firearms in relation to
the conspiracy; (2) there was no specific finding that firearms were possessed by
his co-defendants in furtherance of the conspiracy; or (3) that he was a member of
the conspiracy at the time of his alleged possession of the firearms. After review,
we vacate Turner’s sentence and remand for further proceedings in light of this
opinion.1
“Sentencing Guidelines subsection 2D1.1(b)(1) provides that the offense
level for a drug offense is increased by two levels ‘if a dangerous weapon
(including a firearm) was possessed.’” United States v. Hall, 46 F.3d 62, 63 (11th
Cir. 1995). “To justify a firearms enhancement, the government must either
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We review a district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1) for clear error
and the application of the Sentencing Guidelines to those facts de novo. United States v. Pham,
463 F.3d 1239, 1245 (11th Cir. 2006).
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establish by a preponderance of the evidence that the firearm was present at the
site of the charged conduct or prove that the defendant possessed a firearm during
conduct associated with the offense of conviction.” United States v. Stallings, 463
F.3d 1218, 1221 (11th Cir. 2006). The evidence presented at sentencing did not
establish that Turner had possessed any of these firearms when or where the drug
trafficking was occurring or in a manner related to the furtherance of the
conspiracy. Thus, the enhancement cannot be affirmed on this basis because the
Government failed to establish Turner himself possessed the firearms.
Section 2D1.1(b)(1) may also be applied when a firearm is possessed by a
co-conspirator if the Government proves by a preponderance of the evidence that:
“(1) the possessor of the firearm was a co-conspirator, (2) the possession was in
furtherance of the conspiracy, (3) the defendant was a member of the conspiracy at
the time of the possession, and (4) the co-conspirator possession was reasonably
foreseeable by the defendant.” United States v. Gallo, 195 F.3d 1278, 1284 (11th
Cir. 1999) (emphasis omitted).
Although the Government presented testimony from DEA Agent Kevin
Whittle as to the origin of the guns obtained by Turner’s co-conspirators, Custodio
Guerra and Jonathan Stephens, the district court specifically found that Turner, not
his co-conspirators possessed the firearms, and we cannot determine by the district
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court’s findings whether the Gallo requirements are met. Accordingly, we vacate
Turner’s sentence and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED.
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