United States v. Turner Baker , 543 F. App'x 980 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15874
Non-Argument Calendar
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D.C. Docket No. 1:92-cr-01025-MP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TURNER BAKER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(November 12, 2013)
Before PRYOR, JORDAN and FAY, Circuit Judges.
PER CURIAM:
Turner Baker appeals the revocation of his supervised release and his
sentence of 33 months of imprisonment. See 18 U.S.C. § 3583(e)(3). Baker
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argues that the evidence was insufficient to establish that he violated the conditions
of his supervised release by possessing with intent to distribute marijuana,
possessing drug paraphernalia, and fleeing or eluding law enforcement. Baker also
challenges the procedural reasonableness of his sentence. We affirm.
The record supports the decision of the district court to revoke Baker’s
supervised release. Officer Tony Lipski of the Gainesville Police Department
testified that he activated his siren to alert Baker to stop for a traffic offense, but
Baker fled from the officer, weaved through travel and bicycle lanes, and drove
into oncoming traffic at varying speeds. Lipski observed Baker making “quick
furtive movements with his arm . . . in a scooping motion” while he was driving.
Baker told Lipski that possessing marijuana was a “trivial violation” before
officers discovered in the passenger seat of Baker’s vehicle a backpack containing
nine plastic bags of marijuana and approximately $50 in cash. Lipski testified that,
in his experience, the packaging of the marijuana and its close proximity to the
cash suggested that the drugs were intended for distribution. The district court was
entitled to discredit Baker’s testimony that he was confused and disoriented when
he committed the traffic offenses, that the backpack belonged to his girlfriend,
Donna Arnold, and that he was unaware of the marijuana in the backpack. And the
district court was entitled to treat Baker’s testimony as substantive evidence of his
guilt. See United States v. Ellisor, 522 F.3d 1255, 1272 (11th Cir. 2008). Baker
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elicited testimony from an investigator and his probation officer that Arnold later
claimed the marijuana, but the investigator also testified that Arnold stated that she
had told Baker about the marijuana. The district court found that “the evidence
and all inferences that can be drawn from it” proved that Baker had “12 grams or
nine baggies” of marijuana “that he did in fact possess . . . with intent to distribute”
and that the video “substantiate[d] the testimony of Officer Lipski” about
“eluding.” The record supports the finding that the government proved by a
preponderance of the evidence that Baker possessed marijuana with the intent to
distribute, possessed drug paraphernalia, and fled from a police officer. See United
States v. Robinson, 893 F.2d 1244, 1245 (11th Cir. 1990).
Baker’s sentence is reasonable. The district court correctly calculated
Baker’s advisory guideline ranges, “consider[ed] all of the factors set forth in the
guidelines,” see 18 U.S.C. § 3553(a), and imposed sentences at the low end of the
guideline ranges. The district court revoked Baker’s three terms of supervised
release for assault with a dangerous weapon during a bank robbery, id. § 2113(a),
(d), using a firearm during a crime of violence, id. § 924(c), and possessing a
firearm as a convicted felon, id. § 922(g). As an armed career criminal, Baker
faced a maximum sentence of life imprisonment for possessing a firearm, id.
§ 924(e)(1), a Class A felony, id. § 3559(a)(1), for which he faced a longer
sentence upon revocation of his supervised release. Baker’s most serious violation
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of his supervised release, possessing with intent to distribute marijuana, was a
Grade A violation, see U.S.S.G. § 7B1.1(a)(1); Fla. Stat. § 775.084(4)(C)(1)(d),
and his advisory guideline range was 24 to 30 months of imprisonment for assault
and using a firearm and 37 to 46 months of imprisonment for possessing a firearm.
See U.S.S.G. § 7B1.4(a). The district court advised Baker of the sentencing ranges
for a Grade A violation and that he faced a maximum statutory penalty of five
years of imprisonment for each of his three violations of supervised release, which
also was consistent with being sentenced for a Grade A violation, see 18 U.S.C.
§ 3583(e)(3). In response to Baker’s request to reduce his sentence for time served
in state custody, the district court varied below the guideline ranges and sentenced
Baker to concurrent terms of 20 months for assault, 20 months for using a firearm,
and 33 months for possessing a firearm. The district court did not abuse its
discretion.
We AFFIRM the revocation of Baker’s supervised release and his sentence.
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