United States v. Turner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4421
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAUNA RENEE TURNER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-02-151)
Submitted: August 26, 2005 Decided: October 11, 2005
Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jacqueline A. Hallinan, HALLINAN LAW OFFICES, P.L.L.C., Charleston,
West Virginia, for Appellant. Kasey Warner, United States
Attorney, Michael L. Keller, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Launa Renee Turner pled guilty to aiding and abetting
possession of a quantity of cocaine with intent to distribute on
July 3, 2002, 21 U.S.C.A. § 841(a)(1) (West 2000 & Supp. 2005), 18
U.S.C. § 2 (2000) (Count One), and was sentenced to a term of
fifty-one months imprisonment. Turner appeals her sentence,
contending that the district court plainly erred, in light of
United States v. Booker, 125 S. Ct. 738 (2005), by calculating her
sentence based on its determination that she was responsible for
other drugs and currency seized at her arrest, as well as the drug
equivalent of vehicles and household items that the court
determined were bought with proceeds of drug sales, in violation of
the Sixth Amendment. Id. at 756. Turner also argues that the
court plainly erred by failing to treat the guidelines as advisory,
id. at 757, and clearly erred in denying her an adjustment for
acceptance of responsibility. U.S. Sentencing Guidelines Manual
§ 3E1.1 (2002). For the reasons explained below, we affirm.
When Turner and her boyfriend, Darrell Spence, were
arrested on July 3, 2002, law enforcement authorities seized an
ounce and a half of cocaine, as well as quantities of marijuana,
MDMA, and hydrocodone. Turner was released on bond. After her
guilty plea, she cooperated with authorities, but her bond was
revoked in August 2002 after she tested positive four times for
cocaine use. At Turner’s sentencing, without objection, the
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district court adopted the probation officer’s recommendation to
convert to marijuana equivalents all the drugs and money seized
when Turner and Spence were arrested, as well as a boat, a trailer,
a vehicle, and over $20,000 in household goods purchased with cash.
Turner’s base offense level was 26, USSG § 2D1.1(c)(7), based on
100-400 kilograms of marijuana equivalent. The court subtracted
two levels under the safety valve provision in § 2D1.1(b)(6).
Despite Turner’s cooperation and her testimony at Spence’s
sentencing hearing, the district court decided against giving her
a further reduction for acceptance of responsibility because of her
continued use of illegal drugs while on pretrial release. Turner’s
final offense level was 24. She was in criminal history category
I, making her guideline range 51-63 months. The court imposed a
sentence of fifty-one months imprisonment.
Turner first argues that the calculation of her offense
level violated the Sixth Amendment because her base offense level
was increased based on facts found by the court that were not
charged in the indictment, presented to a jury, or found beyond a
reasonable doubt. Because she did not raise this issue in the
district court, our review is for plain error. United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To establish error,
Turner must show that the court imposed a guideline sentence
greater than the maximum authorized by the facts she admitted.
Booker, 125 S. Ct. at 756; Hughes, 401 F.3d at 547.
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Turner argues that her base offense level should have
been 14, because she pled guilty to possessing cocaine with intent
to distribute on July 3, 2002, and approximately thirty-nine grams
of cocaine was seized that day. An offense involving 25-50 grams
of cocaine has a base offense level of 14, USSG § 2D1.1(c)(14),
while a base offense level of 26 applies when the offense involved
500 grams to two kilograms of cocaine. USSG § 2D1.1(c)(7).
However, in her presentence interview, Turner admitted to facts
that justified the base offense level of 26. Turner told the
probation officer that she and Spence began buying a kilogram of
cocaine every other week in October 2001 and, before their arrest
in July 2002, were distributing a kilogram of cocaine every other
week. Therefore, no Sixth Amendment violation occurred. United
States v. Evans, 416 F.3d 298, 300-301 (4th Cir. 2005) (holding
that there is no Sixth Amendment error when the sentence does not
exceed the maximum authorized by facts the defendant admitted).
We review the district court’s decision that Turner had
not accepted responsibility for clear error. Denial of the
adjustment because of continued criminal conduct after indictment
is not clearly erroneous. United States v. Kidd, 12 F.3d 30, 34
(4th Cir. 1993). We conclude that the district court did not
clearly err in denying Turner the adjustment for continued drug use
on pretrial release.
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Finally, in her supplemental brief, Turner asserts that
the district court erred in applying the guidelines as a mandatory
scheme to deny her a reduction for acceptance of responsibility.
The court undeniably regarded the guidelines as mandatory, and
therefore erred. United States v. White, 405 F.3d 208, 216-17 (4th
Cir. 2005) (holding that, “even in the absence of a Sixth Amendment
violation, the imposition of a sentence under the former mandatory
guidelines regime rather than under the advisory regime outlined in
Booker is [plain] error”). However, a defendant must show that the
error affected her substantial rights. White, 405 F.3d at 217-22.
To make this showing, a defendant must “demonstrate, based on the
record, that the treatment of the guidelines as mandatory caused
the district court to impose a longer sentence than it otherwise
would have imposed.” Id. at 224.
Turner points out that the court stated, “I just feel
like it would fly in the face of the Guidelines for me to [make the
adjustment] in this instance.” In addition to this statement, the
court later stated explicitly that it was “bound by the guidelines
. . .” and that Turner should be “sentenced at the bottom of the
guidelines.” The district court did not indicate, however, that it
would have preferred a lesser sentence. The court stated that
Turner’s sentence was “a significant sentence, which reflects the
seriousness of the offenses you’ve committed.” Thus, Turner has
failed to demonstrate that the plain error in sentencing her under
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a mandatory guidelines scheme affected her substantial rights.
See White, 405 F.3d at 224 (finding that defendant failed to meet
burden of demonstrating actual prejudice where “the district court
made certain statements suggesting that it was content to sentence
[the defendant] within the guideline range”).
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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