USA v. Robert Turner

Filing

OPINION filed: AFFIRMED, decision not for publication pursuant to local rule 206. Deborah L. Cook; Helene N. White, (authoring) and Bernice Bouie Donald, Circuit Judges.

Case: 10-3916

Document: 006111190288

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0075n.06
FILED

No. 10-3916

Jan 23, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT L. TURNER,
Defendant-Appellant.

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LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT
FOR
THE
NORTHERN DISTRICT OF
OHIO

Before: COOK, WHITE, and DONALD, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Appellant Robert Turner pleaded guilty to two
counts of distributing five or more grams of crack-cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B), and one count of distributing fifty or more grams of crack-cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A). He was sentenced to the statutory mandatory minimum term of
240 months’ imprisonment. Turner appeals his sentence, arguing that the sentencing court wrongly
relied on void prior convictions and that the United States Constitution requires that he be resentenced under the Fair Sentencing Act of 2010 and recent amendments to the United States
Sentencing Guidelines. We AFFIRM.

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I.
Turner was indicted on July 1, 2009 for violations of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and
(b)(1)(B), and 18 U.S.C. § 2. On August 29, 2009, the government filed an Information pursuant
to 21 U.S.C. § 851 to establish Turner’s prior drug-trafficking conviction in support of enhanced
penalties for the charged offenses. Turner pleaded guilty to three counts on September 4, 2009,
pursuant to a written plea agreement. The plea agreement acknowledged that due to Turner’s
previous felony drug conviction, the statutory mandatory minimum sentence for Count 4 would be
240 months of imprisonment, and discussed the possibility that Turner would be classified as a
career offender based on two additional state-court convictions.
After Turner entered his plea and before his sentencing hearing, the Ohio Supreme Court
reaffirmed its earlier pronouncements that Ohio sentences that failed to impose a statutorily
mandated period of post-release control were contrary to law and void. State v Singleton, 920
N.E.2d 958 (Ohio 2009). Turner argued that the three prior state-court convictions used to support
the enhanced penalties outlined in his plea agreement—a 1996 conviction for aggravated burglary,
a 2000 conviction for possession of crack-cocaine, and a 2000 conviction for drug trafficking—were
void under Ohio law because the sentencing courts failed to impose terms of post-release
supervision. Turner also sought relief in state court petitions to have his previous convictions
declared void; this relief was denied in three separate opinions. Turner’s appeals are still pending.
On July 22, 2010, the district court rejected Turner’s argument that his state-court convictions
could not be used to support enhanced penalties. After factoring in Turner’s status as a career
offender, an adjustment for Turner’s role in the offense, and a reduction for acceptance of
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responsibility, the court determined that Turner had an offense level of 34 and a criminal history
category of VI, and was thus subject to an advisory guideline range of 262-327 months of
imprisonment. The court varied downward and sentenced Turner to the mandatory minimum
sentence — 240 months of imprisonment. 21 U.S.C. 841(b)(1)(A)(amended 2010).
II.
In this appeal, Turner initially claimed the district court improperly used Turner’s void statecourt convictions to apply the enhancements and calculate his offense level. In his Reply brief,
however, Turner acknowledges that this argument is foreclosed by intervening precedent from the
Ohio Supreme Court in Ohio v. Fischer, 942 N.E.2d 332 (Ohio 2010). Accordingly, we turn to
Turner’s claim based on the Fair Sentencing Act.
Turner argues he should be re-sentenced under the Fair Sentencing Act of 2010 (“FSA”) and
subsequent amendments to the Sentencing Guidelines, which reduce the disparity between crackcocaine and powder-cocaine offenses from 100:1 to 18:1.
The FSA, enacted on August 3, 2010, amended several statutes to increase the amount of
crack-cocaine necessary to trigger mandatory minimum sentences. United States v. Shepherd, 408
F. App’x 945, 949 (6th Cir. 2011). Section 8 of the FSA directs the United States Sentencing
Commission to:
(1) promulgate the guidelines, policy statements, or amendments provided for in this
Act as soon as practicable, and in any event not later than 90 days after the enactment
of this Act, in accordance with the procedure set forth in section 21(a) of the
Sentencing Act of 1987 (28 U.S.C. 994 note), as though the authority under that act
had not expired; and (2) pursuant to the emergency authority provided under
paragraph (1), make such conforming amendments to the Federal sentencing

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guidelines as the Commission determines necessary to achieve consistency with other
guideline provisions and applicable law.
124 Stat. 2372, 2374 (2010)
In accordance with the above directive, the Sentencing Commission issued an emergency
amendment to the United States Sentencing guidelines, effective November 1, 2010, that amended
§ 2D1.1.(c)’s drug quantity table and reduced the base offense level for various quantities of crack
cocaine. Temporary Emergency Amendment to Sentencing Guidelines, 75 Fed. Reg. 66, 188 (Oct.
27, 2010).
After Turner filed this appeal, the United States Sentencing Commission unanimously voted
to make this amendment, now designated Amendment 750 in Appendix C of the United States
Sentencing Guidelines, retroactive. The effective date of Amendment 750 is November 1, 2011.
U.S.S.G., App. C, at 398.
In United States v. Carradine, we held that because “the Fair Sentencing Act of 2010,
contains no express statement that it is retroactive nor can we infer any such express intent from its
plain language,” it does not apply retroactively. 621 F.3d 575, 580 (6th Cir. 2010).
It is undisputed that Turner committed the instant offenses and was sentenced prior to the
FSA’s enactment.1 Accordingly, Turner’s request for re-sentencing under the FSA is foreclosed by
our previous decision in Carradine.

1

Turner claims he is nonetheless entitled to application of the FSA because his case is still
on direct appeal. However, like Turner, the defendant in Carradine also raised his FSA claim on
direct appeal.
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Turner also argues that the recent guideline amendment would reduce his base offense level
from 34 to 26. While this amendment is retroactive, the commentary following Amendment 750
expressly states that “offenders . . . sentenced at the statutory mandatory minimum . . . cannot have
their sentences lowered by an amendment to the guidelines.” U.S.S.G., App. C, at 394. Because
Turner was sentenced to the statutory mandatory minimum sentence, rather than under the crackcocaine guidelines, Amendment 750 does not affect his sentence.
Next, Turner claims that failure to apply the FSA to cases on direct review violates his right
to equal protection and due process under the Fifth Amendment. In support, Turner primarily relies
on the Supreme Court’s decision in Griffith v. Kentucky, 479 U.S. 314 (1987), where the Court held
that the new procedural rule announced in Batson v. Kentucky, 476 U.S. 79 (1986), applied to cases
on direct review. As part of its rationale, the Griffith Court stated that “selective application of new
rules violates the principle of treating similarly situated defendants the same.” Id. at 323. Although
the Court specifically limited its holding in Griffith to “new rule[s] for the conduct of criminal
prosecutions,” id. at 328, Turner attempts to apply Griffith to the instant matter by classifying the
statutory amendments under the FSA as procedural changes, rather than substantive. This is a
stretch. In any event, regardless of the classification, we are bound by the “general savings statute”
set forth in 1 U.S.C. § 109. Under 1 U.S.C. § 109:
The repeal of any statute shall not have the effect to release or extinguish any penalty,
forfeiture, or liability incurred under such statute, unless the repealing Act shall so
expressly provide, and such statute shall be treated as still remaining in force for the
purpose of sustaining any proper action or prosecution for the enforcement of such
penalty, forfeiture, or liability.
1 U.S.C. § 109.
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Unlike situations where the Supreme Court announces a new procedural rule, when Congress
repeals a statute § 109 “requires us to apply the penalties in place at the time the crime was
committed, unless the new enactment expressly provides for its own retroactive application.”
Carradine, 621 F.3d at 580. See also United States v. Robinson, 405 F. App’x 72, 73 (7th Cir. 2010)
(“[The defendant] has offered nothing to suggest that Griffith applies equally to amendments to
legislation that alter penalties but create no new rights, procedural or otherwise.”).
Turner maintains that § 109 “cannot justify a disregard of the will of Congress as manifested
either expressly or by necessary implication in a subsequent enactment.” Great N. Ry. Co. v. United
States, 208 U.S. 452, 465 (1908). We do not disagree; § 109 is intended to effectuate Congress’s
will. According to Turner, the legislative history of the FSA demonstrates the will of Congress to
immediately end the “discriminatory injustice” inherent in pre-FSA sentences. Therefore, applying
sentences under the pre-FSA statutory scheme, in accordance with § 109, is contrary to
Congressional intent. If § 109 does not apply, Turner asserts, we should follow the common-law
abatement rule, which states that the repeal of a statute, or the re-enactment of a statute with different
penalties, “abate[s] all prosecutions which ha[ve] not reached final disposition in the highest court
authorized to review them.” Bradley v. United States, 410 U.S. 605, 607-08 (1973).
Although Turner correctly points out that the preamble to the FSA states its goal is to “restore
fairness to Federal cocaine sentencing,” neither that phrase, nor the legislative history cited by
Turner, supports that Congress desired, either expressly or by implication, for the FSA to have
retroactive application to sentences already imposed but still on direct review.

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In the absence of clear intent by Congress that the FSA should apply retroactively to cases
on direct review, compliance with § 109 does not offend Turner’s right to due process or equal
protection.2
Turner additionally argues that applying a pre-FSA sentence to his case constitutes cruel and
unusual punishment because the “national consensus” is that the 100:1 crack-cocaine to powdercocaine sentencing ratio under the pre-FSA statutory scheme is excessive. We have previously held
that the twenty-year mandatory minimum sentence for crack-cocaine offenses does not violate the
Eighth Amendment’s prohibition against cruel and unusual punishments. See United States v.
Dunson, 940 F.2d 989, 995 (6th Cir. 1991) (abrogated on other grounds by United States v.
Ferguson, 8 F.3d 385 (6th Cir. 1993). Although an individual who commits the same crimes as
Turner today will now be subject to a lower mandatory-minimum sentence under the FSA, that does
not compel a finding that the pre-FSA sentence is a cruel and unusual punishment.
We are not unsympathetic to Turner’s claims. There is, indeed, an element of unfairness in
all line drawing. However, because we are concerned with the retroactive effect of a statute, the
retroactive/prospective line must be drawn by Congress.
For the reasons stated above, we affirm.

2

To the extent Turner also asserts an equal protection challenge based on the disparate
sentences between crack-cocaine and powder-cocaine under the pre-FSA statutory scheme, that
claim fails under our prior precedent. See United States v. Wimbley, 553 F.3d 455, 463 (6th Cir.
2009).
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