USA v. Jermaine Turner

Filing

NOT PRECEDENTIAL OPINION Coram: FISHER, GREENAWAY JR. and ROTH, Circuit Judges. Total Pages: 8. Judge: GREENAWAY JR. Authoring.

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Document: 003112377286

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Date Filed: 08/10/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1768
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UNITED STATES OF AMERICA
v.
JERMAINE TURNER,
Appellant
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. Action No. 2:12-cr-00229-001)
District Judge: Honorable Terrence F. McVerry
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 21, 2016
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Before: FISHER, GREENAWAY, JR., and ROTH, Circuit Judges.
(Opinion Filed: August 10, 2016)
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OPINION*
______________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
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GREENAWAY, JR., Circuit Judge.
Jermaine Turner (“Turner”) seeks review of the sentence he received upon
revocation of his term of supervised release. Since we find that the sentence is
procedurally and substantively reasonable, we will affirm.
I.

Background
Following a guilty plea to being a felon in possession of a firearm, Turner was

sentenced in March 2013 to a term of fifteen months of imprisonment, to be followed by
three years of supervised release. After having served his period of imprisonment,
Turner’s term of supervised release was plagued with violations, resulting in the District
Court twice modifying the conditions of his supervised release. The two modifications
failed to provide a sufficient deterrent. Turner continued to violate the conditions of his
release, culminating in a warrant being issued for his arrest and the revocation of his
supervised release. In July 2014, Turner was sentenced to eight months of imprisonment,
to be followed by two years of supervised release.
Turner’s second term of supervised release fared no better. Another revocation
hearing ensued. At that hearing, the District Court enumerated Turner’s prior violations
of supervised release and his current transgressions, including his failure to report being
arrested by Pittsburgh police,1 failure to report for a job training program, failure to report
to his probation officer, failure to remain drug-free (having tested positive for marijuana),

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These criminal charges were ultimately withdrawn.
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refusal to supply urine samples, and failure to obtain employment.
The District Court calculated Turner’s Guidelines range to be six to twelve months
of imprisonment and a non-mandatory term of supervised release. (App. 49.) Offering
evidence of a job offer, Turner’s counsel sought a sentence of time served, with a term of
supervised release. (App. 28-29.) In the alternative, counsel requested a split sentence,
with Turner serving part of his term of incarceration on work release. (App 41.) The
government sought a sentence of ten months of imprisonment with supervision to follow.
(App. 38.)
Explaining its concern over Turner’s “disrespect for the law and lack of any
meaningful employment,” (App. 50), the District Court imposed a sentence of ten months
of imprisonment, followed by one year of supervised release. The first six months of
supervised release were to be served in community confinement.
II.

Discussion2
We review a sentence imposed upon revocation of supervised release for abuse of

discretion to ensure that it is both procedurally and substantively reasonable. United
States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007). For a sentence to be procedurally
reasonable, the District Court must: (1) calculate the defendant’s Guidelines range as it
would have before United States v. Booker, 543 U.S. 220 (2005); (2) determine whether
to adjust the range based on the parties’ motions for departure; and (3) exercise its

2

The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3583(e).
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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discretion by considering the factors set forth in 18 U.S.C. § 3553(a). United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2006). When a defendant fails to preserve a
procedural objection, we review the sentencing procedure for plain error. United States
v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc). “An error is plain if it is
‘clear’ or ‘obvious,’ ‘affects substantial rights,’ and ‘affects the fairness, integrity or
public reputation of judicial proceedings.’” Id. at 259 (quoting United States v. Dragon,
471 F.3d 501, 505 (3d Cir. 2006)).
If there is no procedural error, we review the substantive reasonableness of the
sentence and will affirm the sentence “unless no reasonable sentencing court would have
imposed the same sentence on that particular defendant for the reasons the district court
provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009).
Turner argues that the sentence of ten months of confinement followed by one
year of supervised release is procedurally flawed because the District Court failed to
provide a written explanation for the above-Guidelines sentence, as required by 18 U.S.C.
§ 3553(c)(2), and because the District Court failed to give adequate consideration to the
factors set forth in 18 U.S.C. § 3553(a). He also argues that District Court failed to
consider his request for a split sentence. Turner failed to preserve these issues, so we
review them for plain error.
Turner’s first argument lacks merit since the District Court imposed a sentence
well within the Guidelines range of six to twelve months. While Turner claims that the

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sentence subjects him to sixteen months of incarceration,3 that is simply not so. The
basic flaw in his reasoning arises from his interpretation of and reliance upon U.S.S.G.
§ 7B1.3(c)(1). That section offers sentencing courts the option of substituting community
confinement for part of a term of incarceration, but it does not mandate that community
confinement always be considered the equivalent of incarceration. More importantly,
Turner’s interpretation of § 7B1.3(c)(1) – that any term of community confinement
automatically constitutes a term of incarceration – wholly ignores the statutory
framework regarding sentencing.
We turn first to the section titled “Imprisonment of a convicted person,” which
states in relevant part that “[a] person who has been sentenced to a term of imprisonment
. . . shall be committed to the custody of the Bureau of Prisons until the expiration of the
term imposed.” 18 U.S.C. § 3621(a). Once sentence is imposed, “[t]he Bureau of
Prisons shall designate the place of the prisoner’s imprisonment,” based on various
factors set forth in the statute. 18 U.S.C. § 3621(b).4 “In fact, a district court has no

3

Turner arrives at his sixteen month term of incarceration by combining the ten
months of incarceration with the six months of community confinement.
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Examining 18 U.S.C. § 3621(b), the Supreme Court concluded that the time a
defendant spent in a treatment center during pretrial proceedings could not be credited
towards his sentence because the time in the treatment center did not constitute “official
detention.” Reno v. Koray, 515 U.S. 50, 52 (1995). While the present case presents a
different factual scenario, the Supreme Court’s reasoning supports the conclusion that a
term of imprisonment can only be spent under the supervision of the Bureau of Prisons,
and that, by definition, time in community confinement cannot be considered
imprisonment.
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power to dictate or impose any place of confinement for the imprisonment portion of the
sentence[, since] the power to determine the location of imprisonment rests with the
Bureau of Prisons.” United States v. Serafini, 233 F.3d 758, 778 n.23 (3d Cir. 2000)
(emphasis omitted).
As part of a sentence, a court may impose a term of supervised release. 18 U.S.C.
§ 3583(a). The term of supervised release may include various conditions, some of
which are mandatory and some of which are discretionary. 18 U.S.C. § 3583(d). The
discretionary conditions set forth in 18 U.S.C. § 3563(b) include the requirement that a
defendant “reside at, or participate in the program of, a community corrections facility
(including a facility maintained or under contract to the Bureau of Prisons) for all or part
of the term of [supervised release].” 18 U.S.C. § 3563(b)(11). Under this statutory
scheme, community confinement is not the equivalent of imprisonment. Cf. Serafini, 233
F.3d at 777 (“It is true that under section § 5C1.1 of the Guidelines, ‘community
confinement’ cannot constitute ‘imprisonment’ for purposes of fulfilling the requirement
that one-half of a split sentence be satisfied by imprisonment.”). Since the six months of
community confinement are clearly part of Turner’s term of supervised release and not
his term of imprisonment, his sentence was within the Guidelines range. As a result, the
District Court was not required to provide a written explanation for the sentence pursuant
to 18 U.S.C. § 3553(c)(2). Therefore, we find that the District Court committed no
procedural error.
Turner also argues that the District Court failed to give meaningful consideration
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to the § 3553 factors. For its consideration to be “meaningful,” the Court need not
“discuss a defendant’s clearly nonmeritorious arguments, or otherwise ‘discuss and make
findings as to each of the § 3553(a) factors if the record makes clear the court took the
factors into account in sentencing.’” Bungar, 478 F.3d at 543 (quoting United States v.
Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). “Because of the ‘fact-bound nature of each
sentencing decision,’ there is no ‘uniform threshold’ for determining whether a court has
supplied a sufficient explanation for its sentence.” United States v. Merced, 603 F.3d 203,
215 (3d Cir. 2010) (quoting Tomko, 562 F.3d at 567). “[T]he district court must furnish
an explanation ‘sufficient for us to see that the particular circumstances of the case have
been given meaningful consideration within the parameters of § 3553(a).’” Id. at 216
(quoting United States v. Levinson, 543 F.3d 190, 196 (3d Cir. 2008)).
Reviewing the transcript of the sentencing proceeding demonstrates that the
District Court gave meaningful consideration to the § 3553(a) factors. During Turner’s
allocution, the Court engaged in a thoughtful discussion with him regarding the need for
him to stop “committing crimes, and smoking weed, and taking drugs, and finding the
easy way around.” (App. 34.) The Court emphasized the need for Turner to obtain
employment. (App. 34, 50.) This concern was repeated by the probation officer who
stated that she believed that Turner needed a term of incarceration during which he could
obtain a GED, along with skills he could use in seeking employment. (App. 37.) The
Court also “expressed concern over [Turner’s] disrespect for the law,” and acknowledged
the Probation Office’s “extensive and repeated efforts to assist [Turner] in making better
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decisions and being a better role model for [his] child.” (App. 50.) Additionally, the
Court, having accepted Turner’s original guilty plea, sentenced him, and presided over
numerous revocation hearings, clearly was familiar with him and his background.
Turner’s assertion that the Court focused on only one factor – Turner’s failure to abide by
his supervised release conditions – is simply not supported by the record.
Turner also argues that the District Court failed to address his request for a split
sentence. However, the Court’s statement that “a term of imprisonment appears
necessary to provide you with structure and impress upon you the seriousness of your
conduct,” (App. 50) expresses the Court’s belief that incarceration, rather than a split
sentence, was necessary in this case. Based on the record before us, we see no abuse of
discretion in this decision.
III.

Conclusion
Since we find the District Court committed no procedural error and imposed a

substantively reasonable sentence, we will affirm the judgment of conviction.

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