United States v. Dwight Turlington , 696 F.3d 425 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2586
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UNITED STATES OF AMERICA
v.
DWIGHT TURLINGTON,
Appellant
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 1-02-cr-00673-005)
District Judge: Honorable Jerome B. Simandle
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Submitted Under Third Circuit LAR 34.1(a)
September 19, 2012
Before: SLOVITER, RENDELL and HARDIMAN, Circuit Judges
(Opinion Filed September 21, 2012)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Defendant Dwight Turlington appeals the District Court’s judgment of sentence
imposed for his having violated the terms of his supervised release. Turlington contends
that the District Court erred in sentencing him to a term of five years’ imprisonment. He
also challenges the substantive reasonableness of the sentence. For the following
reasons, we will affirm.
A.
In 2002, Turlington pled guilty to conspiring to distribute more than fifty grams of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. In 2004, the
District Court sentenced Turlington to eighty-four months’ imprisonment and sixty
months’ supervised release. His sentence was less than one-third of that recommended
by the Sentencing Guidelines.
On October 29, 2008, Turlington began his term of supervised release. On
September 6, 2009, Turlington was charged with driving under the influence in New
Jersey. Then, on December 7, 2009, New Jersey state police observed Turlington
engaging in three hand-to-hand drug transactions. When the police approached
Turlington and announced themselves, he attempted to flee. During flight, Turlington
threw a loaded handgun to the ground. The state police eventually placed Turlington
under arrest. They searched Turlington and found $245 in cash and a plastic bag of
cocaine. Turlington pleaded guilty to a state charge of possessing a weapon while
committing a controlled dangerous substance crime. The New Jersey Superior Court
sentenced Turlington to three years’ imprisonment for that offense, to run concurrently
with any other federal sentence.
As a condition of his supervised release, Turlington was prohibited from
committing another federal, state or local crime. He was also prohibited from possessing
a firearm or destructive device. On May 26, 2011, the District Court held a revocation of
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supervised release hearing. At the hearing, Turlington admitted to possessing the
handgun and drugs. The District Court revoked Turlington’s term of supervised release
and sentenced him to a sixty-month prison term. Turlington filed a timely appeal.1
B.
Pursuant to 18 U.S.C. § 3583(e)(3), a district court may revoke a term of
supervised release and “require the defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense that resulted in such term of
supervised release” provided that
a defendant whose term is revoked under this paragraph may not be
required to serve on any such revocation more than 5 years in prison if the
offense that resulted in the term of supervised release is a class A felony,
[or] more than 3 years in prison if such offense is a class B felony . . . .
In other words, a district court may impose up to a five-year term of imprisonment after
revoking supervised release where the underlying offense is a class A felony. Where the
underlying offense is a class B felony, a district court may only sentence the defendant to
a maximum of three years’ imprisonment.
The crime for which Turlington was convicted was considered a class A felony at
the time he was originally sentenced. However, the Fair Sentencing Act of 2010 (FSA)
reduced penalties for crack cocaine offenses so that, at the time of his revocation hearing,
the underlying offense was classified as a class B felony. As such, he contends that the
District Court should have sentenced him to no more than three years’ imprisonment.
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). United States v. Young, 634 F.3d
233, 237 (3d Cir. 2011).
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Turlington did not make this argument to the District Court; therefore, we review his
challenge to the sentence for plain error. United States v. Lewis, 660 F.3d 189, 192 (3d
Cir. 2011).2
We hold that the District Court was correct to sentence Turlington based on the
original classification of the underlying offense as a class A felony. In Johnson v. United
States, 529 U.S. 694, 700 (2000), the Supreme Court made clear that imposition of a new
sentence for violating the terms of one’s supervised release is part and parcel of the first
offense for which the defendant was convicted. The Court reasoned that “postrevocation
penalties relate to the original offense,” and instructed lower courts to “attribute
postrevocation penalties to the original conviction.” Id. at 701.
The Supreme Court’s decision in McNeill v. United States, 131 S. Ct. 2218 (2011)
supports our holding. In that case, the Court ruled that, when determining whether an
offense is a “serious drug offense” under the Armed Career Criminal Act (ACCA),
ACCA “requires a federal sentencing court to consult the maximum sentence applicable
to a defendant’s previous drug offense at the time of his conviction for that offense. . . .
The only way to answer this backward-looking question is to consult the law that applied
at the time of that conviction.” Id. at 2221-22 (emphasis added). The Court continued
that whether an offense is a serious drug offense “can only be answered by reference to
the law under which the defendant was convicted.” Id. at 2222.
2
Plain error review requires us to first determine whether the District Court committed an
error that is plain. Second, we ask whether that error affected the defendant’s substantial
rights. Third, we must decide whether to exercise our discretion to correct that error,
provided that the error seriously affects the fairness, integrity or public reputation of
judicial proceedings. Lewis, 660 F.3d at 192 n.2.
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The same reasoning applies here. The length of a new term of imprisonment for
violating supervised release—a penalty which is attributed to the original conviction
according to Johnson—“can only be answered by reference to the law under which the
defendant was convicted.” McNeill, 131 S. Ct. at 2222. Section 3583(e)(3) is, like
ACCA, backward-looking; it focuses on the previous, underlying conviction. The statute
provides that a district court may resentence a defendant “to serve in prison all or part of
the term of supervised release authorized by statute for the offense that resulted in such
term of supervised release.” 18 U.S.C. § 3583(e)(3) (emphasis added). Thus, a district
court must look to the underlying offense as it existed at the time of his original
sentencing when making decisions authorized by § 3583(e)(3).
The Supreme Court’s recent decision on the FSA’s retroactivity does not change
the result. Dorsey v. United States, 132 S. Ct. 2321 (2012) addresses only the
applicability of the FSA to those defendants who were convicted of crack cocaine
offenses prior to the FSA’s effective date of August 3, 2010, but were sentenced after that
date. It does not address, or disturb, the basic principle that the FSA does not apply to
those defendants who were both convicted and sentenced prior to the effective date of the
FSA. See United States v. Reevey, 631 F.3d 110, 115 (3d Cir. 2010) (holding that the
FSA is not retroactive to individuals convicted and sentenced prior to the FSA’s effective
date). Thus, Turlington is incorrect to analogize his situation to that confronted in
Dorsey. He is not like those defendants who are convicted of the crack offense prior to
the FSA effective date, but sentenced after the effective date. He was both convicted and
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sentenced prior to the FSA’s effective date. The fact that his supervised release was
revoked after passage of the FSA is of no moment.
In sum, because, according to Johnson, the revocation of supervised release and
imposition of the term of imprisonment relates back to the underlying conviction, and
because McNeill persuades us that, like ACCA, § 3583(e)(3) is a backward-looking
statute, we reject Turlington’s argument that the District Court should have sentenced
him as if his underlying offense were a class B felony. Therefore, the District Court did
not plainly err in sentencing Turlington to five years’ imprisonment, a term which was
clearly authorized by § 3583(e)(3).
Turlington also challenges the substantive reasonableness of his sentence, which
we review for abuse of discretion. United States v. Young, 634 F.3d 233, 237 (3d Cir.
2011). Section 3583(e) requires district courts to consider the § 3553(a) factors when
sentencing defendants upon the revocation of supervised release. Turlington contends
that the District Court did not meaningfully consider certain mitigating factors such as his
guilty plea, his cooperation with state and federal authorities, the fact that he received
only a three-year sentence for his state convictions, and his efforts at rehabilitation. After
reviewing the record, we find that the District Court did, however, meaningfully consider
these factors when arriving at the five-year term of imprisonment.
C.
Accordingly, we will affirm the judgment of the District Court.
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