2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-21-2012

USA v. Dwight Turlington

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2586

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Recommended Citation

"USA v. Dwight Turlington" (2012). 2012 Decisions. Paper 402.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ 

No. 11-2586

_____________

UNITED STATES OF AMERICA

v.

DWIGHT TURLINGTON,

Appellant 

_____________

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

_____________ 

Submitted Under Third Circuit LAR 34.1(a)

September 19, 2012

Before: SLOVITER, RENDELL and HARDIMAN, Circuit Judges

(Opinion Filed September 21, 2012) 

_____________

OPINION OF THE COURT 

_____________

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
2

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.
5

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 
6

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.