United States v. Turnipseed

• Decision Date: 30 August 2022
• Docket Number: 21-1470
• Citation: 47 F.4th 608
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rontrell TURNIPSEED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

47 F.4th 608

UNITED STATES of America, Plaintiff-Appellee,

v.Rontrell TURNIPSEED, Defendant-Appellant.

No. 21-1470

United States Court of Appeals, Seventh Circuit.

Argued January 19, 2022

Decided August 30, 2022

Georgie Alexaksi, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Michael P. Schmiege, Attorney, Adam Bolotin, Attorney, Law Offices of Michael P. Schmiege, P.C., Hinsdale, IL, for Defendant-Appellant.

Before Wood, Hamilton, and Jackson-Akiwumi, Circuit Judges.

Jackson-Akiwumi, Circuit Judge.

Rontrell Turnipseed pled guilty to conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) for actions he took while participating in the Four Corner Hustlers street gang. The district court sentenced Turnipseed to 120 months' imprisonment—above the advisory sentencing guideline range. Turnipseed challenges his sentence on three grounds. First, he argues that the district court erred by applying the attempted murder guideline, as opposed to the aggravated assault guideline, in calculating the guidelines for his RICO offense. Second, he contends that he was a minor participant in the conspiracy and therefore entitled to a two-level reduction in his guidelines calculation. Third, he argues that his sentence is substantively unreasonable. We find no error and affirm.

I

In 2017, Turnipseed and ten codefendants from the Four Corner Hustlers were indicted on federal racketeering and obstruction charges. Two years later, Turnipseed pled guilty to his involvement in the racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). As part of his plea, Turnipseed signed a plea agreement detailing the acts he committed in furtherance of the conspiracy. Turnipseed admitted that the Four Corner Hustlers is a criminal enterprise engaged in racketeering activity including murder, robbery, extortion, and drug trafficking. Turnipseed also admitted that:

• On April 20, 2010, he was on a block of West Jackson Boulevard, armed with a loaded firearm, and selling heroin to customers on the street. When police arrived, he hid the firearm in a mailbox nearby. The officers recovered the firearm from the mailbox and 23 zip-lock baggies containing a total of 2.3 grams of heroin from his pocket.

• On August 31, 2012, he told a rival gang member that the rival could not sell drugs on a block of West Wilcox Street. During the exchange, he took out a handgun and fired at the rival gang member who returned fire. During the shootout, a high school student, T.S., sustained four gunshot wounds, including two "through-and-through" wounds in her right side and near her lower chest. T.S. was hospitalized for several hours and, following the incident, required counseling once a week for two years. She continues to suffer back pain.

• On September 29, 2017, he persuaded three individuals to destroy photographs and videos on his social media accounts to prevent their use in his criminal proceeding. The photographs and videos depicted him with firearms, narcotics, and other members of the Four Corner Hustlers.

At sentencing, Turnipseed agreed that his most serious conduct under the conspiracy was that he shot at the rival gang member. He insisted, however, that this constituted aggravated assault and not attempted murder. Thus, he argued, the district court should apply the aggravated assault guideline as his most serious racketeering activity.

Turnipseed also argued at sentencing that he was a minor participant in the conspiracy. He therefore requested a two-level minor-role reduction under U.S.S.G. § 3B1.2.

The district court rejected Turnipseed's arguments. It concluded that Turnipseed's most serious racketeering offense was attempted murder, which the district court noted, required a showing of malice aforethought. The district court found that Turnipseed acted with malice aforethought during the shootout with a rival gang member. The district court explained:

The sequence of events, in my mind, by a preponderance [of the evidence] is the defendant engaged in a clear thought process. It was not reckless conduct. He got into an argument, he pulled out a gun, and then shot at the person he was arguing with. He did it with malice aforethought. I believe the evidence is clear on that from his own words, from the sequence of events. This was not a shot over his head. No evidence of that ... He was arguing with the person, close enough to be heard, [when] he pulled out a gun and shot at him.

The district court further explained that the shootout led to the near-fatal shooting of an innocent high school student. Based on these findings, the district court applied the attempted murder guideline as Turnipseed's most serious racketeering activity.

The district court also found that Turnipseed was not a minor participant in the conspiracy. Specifically, the district court stated:

The other defendants who have pled guilty and been sentenced, Mr. Sims and DeAndre Spann, there is no evidence of them being involved in violence. If there is such evidence, it hasn't been brought to my attention. What they pled to are simple drug crimes, in essence. They pled to racketeering, but it [is] related to drug activity. And so I think the fact that a person is willing to kill to protect drug territory and [ ] is armed when he's selling drugs is someone who can't be characterized under the definitions set forth in the guideline as someone who is a minor participant.

Based on the district court's findings, Turnipseed had a total offense level of 26, a criminal history category of I, and sentencing range of 63 to 78 months. The district court sentenced Turnipseed to 120 months' imprisonment, followed by three years' supervised release.

In imposing the sentence, the district court weighed the 18 U.S.C. § 3553(a) factors, specifically identifying aggravating and mitigating factors. Relevant here, the district court considered Turnipseed's social media posts an aggravating factor. The district court acknowledged that Turnipseed was an aspiring rap artist with a recording contract, and that some of his social media posts were promotional material for that career. But outside of photos and videos relating to his rap career, the district court found that several posts showed that Turnipseed was a felon in possession. The district court rejected Turnipseed's argument that the guns in those videos and photos were fake; the court reasoned that if they were, Turnipseed would not have committed obstruction in attempting to delete the photos and videos.

The district court also considered Turnipseed's history with gun violence an aggravating factor. The district court stated:

You were shot at the age of 14. And you've seen a number of people shot. Your being shot is not your fault. But you ought to know having been shot yourself how dangerous it is to go shooting guns. And I find that an aggravating circumstance. You saw firsthand the carnage that happens in your neighborhood when people shoot up people, and you've participated in it.

The district court considered the severity of Turnipseed's conduct as an additional aggravating factor. Turnipseed joined the gang when he was seventeen years old and remained involved until his arrest in his early twenties. As part of the gang, the district court found, Turnipseed was armed and ready to kill to protect drug property. The district court also noted that Turnipseed's actions resulted in the shooting of an innocent student. The district court explained that "an inch either way," T.S. would have died and Turnipseed would possibly be facing life in prison. The district court also considered T.S.'s victim impact statement and that T.S. would live with the trauma of the shooting for the rest of her life.

In mitigation, the district court noted that Turnipseed had a rough childhood, grew up in a violent neighborhood, and suffered significant childhood trauma. The district court acknowledged that Turnipseed's brother was a victim of gang violence, and Turnipseed had witnessed people shot to death. The district court also considered an expert report submitted on Turnipseed's behalf.

In the end, the district court found the advisory sentencing guidelines too low. The district court explained that the guidelines did not take into account many of Turnipseed's crimes, such as committing obstruction or being a felon in possession of a firearm on more than one occasion. In imposing an above-guideline sentence, the district court made clear that it would impose the same sentence regardless of whether it applied the aggravated assault guideline or found Turnipseed a minor participant. This appeal followed.

II

We review sentencing decisions in two steps. United States v. Porraz , 943 F.3d 1099, 1102 (7th Cir. 2019). First, we ensure that the district court did not commit any significant procedural error, such as improperly calculating the applicable guidelines range. Id. Second, if we find no procedural error, we examine the substantive reasonableness of the sentence under an abuse of discretion standard. Id.

Turnipseed raises three arguments related to his sentence. He says that the district court erred by: (1) applying the attempted murder guideline as the most serious underlying racketeering activity; (2) finding that he was not a minor participant in the conspiracy; and (3) imposing a substantively unreasonable sentence. We review each argument in turn.

A. Attempted Murder Guideline

Turnipseed first argues that the district court should have applied U.S.S.G. § 2A2.2 which governs aggravated assault, as opposed to U.S.S.G. § 2A2.1, which covers attempted murder. We review the district court's application of the sentencing guidelines for procedural error de novo and the district court's factual findings for clear error. United States v. Cherry , 855 F.3d 813, 815-16 (7th Cir. 2017).

The RICO guideline instructs courts to use the offense level applicable to one of the predicate offenses underlying the RICO charge...