United States v. John Turnage

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1790
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
John Turnage, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 1, 2006
Filed: February 9, 2006
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Before ARNOLD, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
A jury found John Turnage guilty of possessing more than 5 grams of cocaine
base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and the district
court1 sentenced him to 360 months in prison and 8 years of supervised release. On
appeal, his counsel has moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), and Turnage has filed a pro se supplemental brief.
For the reasons discussed below, we affirm the judgment of the district court and grant
counsel’s motion to withdraw.
1
The Honorable Rodney S. Webb, United States District Judge for the District
of North Dakota.
First, we conclude that the district court did not err in denying Turnage’s
suppression motion. See United States v. Williams, 431 F.3d 1115, 1117 (8th Cir.
2005) (standard of review). While police are required to engage in some independent
verification of information provided to them by a previously unknown informant, they
did so adequately in this case. See United States v. Amaya, 52 F.3d 172, 173-74 (8th
Cir. 1995). Also, even if we assume for the sake of argument that Turnage made a
substantial preliminary showing that police intentionally or recklessly omitted facts
from the search warrant application that made it misleading, he did not make a
substantial preliminary showing that the application could not support a finding of
probable cause if the omitted facts had been included. See United States v. Wells, 223
F.3d 835, 838 (8th Cir. 2000).
Second, we conclude that the evidence is sufficient to support Turnage’s
conviction. See United States v. Barrow, 287 F.3d 733, 736 (8th Cir.) (standard of
review; elements of offense), cert. denied, 537 U.S. 1024 (2002). In finding that
Turnage intended to distribute the crack, the jury was entitled to believe the
government witnesses’ testimony and disbelieve Turnage’s testimony. See United
States v. Fellers, 397 F.3d 1090, 1099 (8th Cir.), cert. denied, 126 S. Ct. 415 (2005).
Third, we conclude that the district court’s denial of Turnage’s downward-
departure motion is unreviewable because the court stated that it recognized its
authority to depart. See United States v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005).
Finally, having reviewed the record independently pursuant to Penson v. Ohio,
488 U.S. 75 (1988), we conclude that there are no nonfrivolous issues for appeal.
Accordingly, we affirm the judgment of the district court, and we grant counsel’s
motion to withdraw.
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