2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-16-2012

USA v. Dwight Turlington

Precedential or Non-Precedential: Precedential

Docket No. 11-2586

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Recommended Citation

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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)

_____________
2

John A. Klamo, Esq. 

Suite 115

811 Church Road

Tarragon Building

Cherry Hill, NJ 08002

 Counsel for Appellant

Mark E. Coyne, Esq.

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

 Counsel for Appellee 

_____________

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 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. 
3

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 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

 

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).
4

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. Turlington did not make this 

argument to the District Court; therefore, we review his 
5

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 

 

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.
6

serious drug offense “can only be answered by reference to 

the law under which the defendant was convicted.” Id. at 

2222. 

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 
7

are convicted of the crack offense prior to the FSA effective 

date, but sentenced after the effective date. He was both 

convicted and 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. 
8

C.

Accordingly, we will affirm the judgment of the 

District Court.