United States v. Jamal Turnquest , 497 F. App'x 155 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-3458
_____________
UNITED STATES OF AMERICA
v.
JAMAL TURNQUEST,
a/k/a POP
a/k/a P
JAMAL TURNQUEST,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-07-cr-00737-002
District Judge: The Honorable Eduardo C. Robreno
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 13, 2012
Before: SMITH and CHAGARES, Circuit Judges
ROSENTHAL, District Judge*
*
The Honorable Lee H. Rosenthal, District Judge for the United States District Court for
the Southern District of Texas, sitting by designation.
(Filed: September 17, 2012)
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
A jury convicted Jamal Turnquest of conspiracy to distribute cocaine, and
the District Court sentenced him to 264 months imprisonment. Turnquest appeals
his conviction and sentence. We will affirm.
I.
On August 6, 2008, Turnquest was indicted and charged with conspiracy to
distribute 5 kilograms or more of cocaine and 50 grams or more of crack cocaine,
in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) (“Count 1”). The
government alleged that Kareem Smith was the head of a conspiracy to distribute
cocaine and crack cocaine in parts of Philadelphia and Cecil County, Maryland
from November 2002 through September 2007 (referred to in the Indictment as the
Smith Crack Cocaine Gang or “SCCG”)). It further alleged that Turnquest was a
co-conspirator and principal manager of the SCCG.
On June 2, 2009, following a jury trial, Turnquest was convicted on Count 1.
On July 8, 2009, Turnquest filed a motion for judgment of acquittal pursuant to
Federal Rule of Criminal Procedure 29(c). On March 10, 2010, the District Court
denied Turnquest’s motion.
2
On June 28, 2010, the District Court held a hearing to assist it in sentencing
Turnquest and his co-defendants. At this hearing, the parties introduced evidence
as to the applicability, if any, of sentencing enhancements.
On July 16, 2010, the District Court issued an order determining that
Turnquest’s base offense level under U.S.S.G. § 2D1.1(c)(1) (2008) was 38.1 The
Court further concluded that two enhancements were appropriate: +2 because the
offense involved a dangerous weapon pursuant to § 2D1.1(b)(1); and +3 because
he was a principal manager in the SCCG pursuant to § 3B1.1(b).2 The Court
further determined that Turnquest had no criminal history points. Thus, the
District Court concluded that Turnquest had a total offense level of 43, a criminal
history category of I, and a sentencing guidelines range of lifetime imprisonment.
On August 10, 2010, the District Court imposed a sentence on Turnquest of
264 months imprisonment to be followed by a 5-year period of supervised release,
along with a $1,000 fine and a $100 special assessment.
1
The District Court sentenced Turnquest under the 2008 version of the Sentencing
Guidelines Manual. Thus, all references to the Guidelines Manual in this opinion are to
the 2008 version.
2
The only aspect of Turnquest’s sentence that he is appealing is the District Court’s
determination that a principal manager enhancement was appropriate. Turnquest does
not challenge the District Court’s determination of his base offense level or that the
offense involved a dangerous weapon.
3
Turnquest appealed his conviction and sentence.3
II.
A.
Turnquest argues that, although the evidence could lead a jury to conclude
that he was often in the company of Smith and that he understood that Smith was
engaging in illegal activities, the evidence was insufficient to prove that he joined
the SCCG.
We review a challenge to the denial of a motion for judgment of acquittal de
novo, viewing the evidence in the light most favorable to the government. United
States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006). We must sustain the verdict if
“any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). It is
immaterial that the evidence also permits a “less sinister conclusion” because “the
evidence need not be inconsistent with every conclusion save that of guilt.” United
States v. Brodie, 403 F.3d 123, 134 (3d Cir. 2005) (citation and quotation marks
omitted). In sum, the verdict must stand unless the insufficiency of the evidence is
clear. United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) (citation and
quotation marks omitted).
3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
4
The elements of a conspiracy charge under § 846 are: (1) a unity of purpose
between the alleged conspirators; (2) an intent to achieve a common goal; and (3)
an agreement to work together toward that goal. See United States v. Iglesias, 535
F.3d 150, 156 (3d Cir. 2008).
A reasonable jury could conclude that the evidence, viewed in the light most
favorable to the government, sufficiently demonstrates Turnquest’s participation in
the SCCG. This evidence includes testimony by members of the SCCG that
Turnquest: sold drugs for Smith (Supp. App. 105, 271-73, 278, 314); bagged crack
for Smith (Supp. App. 100-02; 615); delivered crack to members of the SCCG
(Supp. App. 282, 287, 373A-76A); was arrested at least three times for drug
offenses that involved the SCCG (Supp. App. 284); and oversaw the SCCG’s
operations, including directing a member of the SCCG to: drive Turnquest to pick
up crack, deliver drugs to buyers in exchange for money, and rent hotel rooms for
the SCCG using money provided by Smith or Turnquest (Supp. App. 315-18, 327-
30). Moreover, Smith testified that he and Turnquest were working together in the
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cocaine business. Supp. App. 614, 624.4 Based on this and other evidence, a
reasonable jury could infer that Turnquest was a member of the SCCG.
Accordingly, the District Court did not err in denying Turnquest’s Rule 29
motion for judgment of acquittal.
B.
Turnquest argues that, at sentencing, the District Court erred in determining
that he was a manager of the SCCG and applying a three level enhancement to his
offense level under U.S.S.G. § 3B1.1. We review the District Court’s decision for
clear error. See United States v. Richards, 674 F.3d 215, 222 (3d Cir. 2012)
(“[W]here . . . sentencing adjustments require a district court to closely examine a
set of facts and determine whether they fit within the definition of the adjustment
before deciding whether to apply the adjustment, we should review that decision
for clear error only.”); see, e.g., United States v. Starnes, 583 F.3d 196, 216-17 (3d
Cir. 2009) (reviewing a district court’s determination of the defendant’s role under
§ 3B1.1 for clear error).
4
Turnquest argues that he, like the defendant in United States v. Pressler, 256 F.3d 144(3d Cir. 2001), never agreed to work with Smith or any other members of the SCCG to
achieve a common goal or advance a common interest. However, Pressler is inapposite
for primarily two reasons. First, the issue in Pressler was whether a conspiracy existed at
all, not whether a particular individual was a member of a documented conspiracy. See
Id. at 151. Second, the evidence demonstrates that Turnquest, unlike the defendant in
Pressler, was so closely connected with the conspiracy that a reasonable jury could infer
he shared a unity of purpose with — and joined — the SCCG with the intent to further its
common goals.
6
Under § 3B1.1(b), sentencing courts may increase the defendant’s offense
level by three levels where “the defendant was a manager or supervisor . . . and the
criminal activity involved five or more participants or was otherwise extensive.”
To qualify for the enhancement, the defendant must have managed or supervised at
least one other participant in the illegal activity. See U.S.S.G. § 3B1.1 cmt. n.2. A
“participant” is one who is criminally responsible for the offense, but that person
need not have been convicted. See id. cmt. n.1. A manager or supervisor is one
who “exercise[s] some degree of control over others involved in the offense.”
United States v. Chau, 293 F.3d 96, 103 (3d Cir. 2002) (quoting United States v.
Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990)).
Here, the District Court did not plainly err by determining that Turnquest
was a manager or supervisor of the SCCG under § 3B1.1. Michael Martin, who
was a member of the SCCG, testified at trial that Turnquest, inter alia, generally
oversaw the SCCG’s operations and directed him to: pick up drugs from suppliers,
deliver drugs to buyers in exchange for money, and rent hotel rooms using money
provided by Smith or Turnquest. See Supp. App. 315-18, 327-30. Similarly,
Smith testified that Turnquest was his “right-hand man.” See Supp. App. 614.
Moreover, Turnquest does not challenge the District Court’s determination that the
SCCG had at least five participants. Thus, the District Court did not plainly err by
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applying the enhancement.5
Accordingly, we will affirm.6
5
Contrary to Turnquest’s argument, the District Court’s application of an enhancement
under § 3B1.1 did not violate the rule set forth in Apprendi v. New Jersey, 530 U.S. 466(2000). Turnquest was convicted of violating 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A),
which carries a statutory maximum term of life imprisonment. See 21 U.S.C. §
841(b)(1). The District Court’s application of the enhancement did not increase
Turnquest’s potential maximum sentence, and thus, Apprendi is inapposite.
6
On July 20, 2011, Turnquest filed his briefing in this appeal through counsel. After the
briefing was filed, new counsel — Patrick Connors — was appointed for Turnquest. On
June 18, 2012, Turnquest filed a motion seeking the appointment of new counsel based
on Connors’ apparent refusal to include certain arguments that Turnquest had requested.
We construe Turnquest’s motion as one for ineffective assistance of appellate counsel.
Such a claim, however, is generally inappropriate on direct appeal. See United States v.
Thornton, 327 F.3d 268, 271-73 (3d Cir. 2003). Accordingly, we will deny Turnquest’s
claim for ineffective assistance of appellate counsel without prejudice to his right to raise
this claim on collateral attack.
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