U.S.A v. Turner

• Decision Date: 30 April 2010
• Docket Number: No. 08-4159.,08-4159.
• Citation: 604 F.3d 381
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Joel TURNER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

604 F.3d 381

UNITED STATES of America, Plaintiff-Appellee,v.Joel TURNER, Jr., Defendant-Appellant.

No. 08-4159.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 2009.

Decided April 30, 2010.

COPYRIGHT MATERIAL OMITTED

Mark Karner (argued), Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Derek T. Muller (argued), Kirkland & Ellis LLP, Chicago, IL, for Defendant-Appellant.

Before POSNER, MANION, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Joel Turner, Jr. was convicted of a drug conspiracy and firearms offense and was sentenced to 300 months in prison. He challenges the evidence upon which the district court relied in finding that he was a member of the conspiracy in January 2005 and in making its drug quantity finding. He also argues that the court erred in not considering unwarranted sentencing disparities among his codefendants and ignored sentencing factors, which resulted in an unreasonable sentence. Finding no error, we affirm.

I. Background

The government indicted sixteen defendants, including Joel Turner, Jr., on multiple counts of drug and gun crimes. Turner pled guilty to Counts One and Two of the second superseding indictment. The former count charged him with a criminal drug conspiracy, 21 U.S.C. § 846, and the latter count charged him with possession of a firearm in furtherance of a criminal drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). Turner was sentenced to 240 months on Count One and 60 months on Count Two, to be served consecutively. We already have decided the appeals of several of Turner's codefendants. See United States v. Easter, 553 F.3d 519 (7th Cir.2009) cert. denied sub nom. McKay v. United States, --- U.S. ----, 130 S.Ct. 1281, --- L.Ed.2d ---- (2010).

Turner admitted the following facts, among others, which are taken from his written plea agreement: From at least August 10, 2005, and continuing through at least August 22, 2005, Turner was a member of the Titanic Stones street gang and agreed with Darrell “Duck” Davis and others to sell controlled substances, primarily consisting of heroin. In August 2005, Turner sold heroin out of a drug house operated by the organization at 1023 Kishwaukee in Rockford, Illinois. The organization of which Turner was a part operated the drug house at 1023 Kishwaukee between August 9, 2005 and September 13, 2005. Davis supplied several members of the organization with packs of heroin and crack cocaine (cocaine base) to sell from the house during that time period. On August 10, 2005, Turner sold several individually wrapped packets of heroin to customers out of the Kishwaukee house. Each packet weighed approximately .2 grams and was sold for $20. While the organization ran the drug house at 1023 Kishwaukee, the doors of the house were fortified to prevent the police and rivals from getting in, and many members of the organization, including Turner, possessed firearms to protect the organization's drugs and drug proceeds. On August 10, 2005, in furtherance of the conspiracy charged in Count One and his heroin sales at the Kishwaukee drug house, Turner possessed a firearm for the purpose of protecting himself, the heroin, and the proceeds from the heroin sale.

In addition, Turner admitted that he was guilty as charged in Counts One and Two of the second superseding indictment. The district court accepted his guilty pleas found a factual basis for the pleas, and adjudged him guilty.

The probation office prepared a presentence investigation report (“PSR”) on Turner. The PSR attributed one to three kilograms of heroin and at least fifty grams of cocaine base to Turner, and accordingly found a base offense level of 32 under U.S.S.G. § 2D1.1(a)(3), (c)(4). However, the PSR also found that he was a career offender under U.S.S.G. § 4B1.1(a). As a result, Turner's criminal history category was VI. U.S.S.G. § 4B1.1(b). Based on his career offender status and the fact that he was convicted under 18 U.S.C. § 924(c) and another offense, the PSR found that the applicable Guideline range was the greater of (A) 211 to 248 months (the range determined by adding the mandatory minimum of 60 consecutive months to the range of 151 to 188 months determined on Count One) and (B) 262 to 327 months (the range determined using the table in § 4B1.1(c)(3) because Turner received a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1). See U.S.S.G. § 4B1.1(c)(2). Turner filed an objection to the PSR and a sentencing memorandum.

At Turner's sentencing hearing, the court found that the residence at 821 Buckbee was a drug house from which the conspirators sold heroin between 2002 and 2005 (the conspirators operated several different drug houses), that Turner was arrested in the Buckbee house on January 18, 2005, and that Turner sold heroin from the Buckbee house. The court also considered that Turner was incarcerated from January 26 until his release on July 27, 2005, and that shortly after his release from custody, he became involved in the conspiracy at the drug house at 1023 Kishwaukee. From all the evidence, the court found that Turner was involved in the conspiracy at least as of January 18, 2005, and again became involved in the conspiracy upon his release from custody in late July that same year. (The court said that Turner never really left the conspiracy; he just was not an active member while incarcerated.) These findings were based on all the evidence, including that part of the trial testimony of codefendant Ambrose Jones (who had testified at the trial of three of Turner's codefendants) which the court found sufficiently reliable, as well as on information in Turner's PSR about his January 18, 2005 arrest at the Buckbee house.

The sentencing court assessed the drug amount even though that issue was trumped by Turner's status as a career offender. In making the drug quantity finding, the court reviewed the transcripts of the sentencing hearings of codefendants Darrell Davis and Jamaul McKay and considered its finding that Turner was involved in the conspiracy during the operation of the drug house at 1023 Kishwaukee for a thirty-day period. The court also relied on its previous finding that slightly over one-half of one kilogram of heroin was sold out of the Kishwaukee house during that thirty-day period. The court determined that Turner was responsible for all the quantities sold out of the Kishwaukee house during that thirty-day period.

The sentencing court also considered whether Turner was responsible for a quantity of drugs sold at any other time period. The court noted its finding that Turner was involved in the conspiracy at the Buckbee house and, based on testimony from McKay's sentencing hearing, found “that there were quantities sold at that house” and that “almost another half kilo was sold.” In addition, the court relied on the credible trial “testimony as to approximately what was sold out of each drug house,” which included the testimony of codefendants Bobby Harris and Dupree Turner, who gave information about the organization's operations. The sentencing court found Turner responsible for a total quantity of 700 grams to one kilogram of heroin, resulting in a base offense level of 30 under U.S.S.G. § 2D1.1(c)(5). Turner was sentenced to 240 months on Count One and a consecutive 60 months on Count Two.

II. Discussion

Turner argues that the district court's finding that he was involved in the conspiracy in January 2005 and its drug quantity finding were not based on a preponderance of the evidence. He also argues that the court erred in believing that it could not consider sentencing disparities among codefendants. And he argues that his sentence is substantively unreasonable when weighed against the sentencing factors.

We review de novo whether the district court followed proper sentencing procedures and we review factual findings for clear error. United States v. Pulley, 601 F.3d 660, 661-62 (7th Cir.2010). We defer to a district court's credibility finding, “which can virtually never be clear error.” Id. (citing United States v. Acosta, 534 F.3d 574, 584 (7th Cir.2008)). The substantive reasonableness of a sentence is reviewed for an abuse of discretion, and we presume that a properly calculated, within-Guidelines sentence is reasonable. Id.

A. Findings Regarding Turner's Involvement in the Conspiracy and Drug Quantity

Turner contends that the sentencing court's finding that he was involved in the conspiracy on January 18, 2005, and its resulting drug quantity finding were not supported by a preponderance of the evidence. He maintains that these erroneous findings made his career offender range seem closer to the advisory Guideline range than it was, and the sentencing court could have considered the difference in deciding whether his career offender status overstated his criminal history.

The government must establish the drug quantity by a preponderance of the evidence. United States v. Cox, 536 F.3d 723, 729 (7th Cir.) cert. denied, --- U.S. ----, 129 S.Ct. 770, 172 L.Ed.2d 760 (2008). A sentencing court may “rely on information that has ‘sufficient indicia of reliability to support its probable accuracy.’ ” Pulley, 601 F.3d at 665, 2010 WL 537574, at *3 (quoting United States v. Rollins, 544 F.3d 820, 838 (7th Cir.2008)). When a court relies on information contained in a presentence report, “the defendant bears the burden of showing that the presentence report is inaccurate or unreliable.” United States v. Heckel, 570 F.3d 791, 795 (7th Cir.2009) (quotation omitted). A defendant's bare denial of information in a presentence report is insufficient to challenge its accuracy and reliability. Id.

In the case of a jointly undertaken criminal activity, a defendant may be held accountable for “ ‘all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.’ ” United States v. Soto-Piedra, 525 F.3d 527, 531 (7th Cir.2008...