United States v. Jesse E. Turnbull, Also Known as Jesse E. Turnbough

Eighth Circuit

United States v. Jesse E. Turnbull, Also Known as Jesse E. Turnbough

414 F.3d 942, 2005 U.S. App. LEXIS 14420, 2005 WL 1661346

CourtCourt of Appeals for the Eighth Circuit

DecidedJuly 18, 2005

Docket03-1633

StatusPublished

Cited by15 cases

This text of 414 F.3d 942 (United States v. Jesse E. Turnbull, Also Known as Jesse E. Turnbough) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Jesse E. Turnbull, Also Known as Jesse E. Turnbough, 414 F.3d 942, 2005 U.S. App. LEXIS 14420, 2005 WL 1661346 (8th Cir. 2005).

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Opinion

PER CURIAM.

This case is before us on remand from the United States Supreme Court for further consideration in light of its decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Booker held enhancements based upon judge-found facts under the mandatory-federal Sentencing Guidelines violate the Sixth Amendment. To remedy the problem, the-Supreme Court struck down the statutory provisions which made the Guidelines mandatory, the effect of which was to “make[] the Guidelines effectively advisory.” Id. at 757.

In this case, Jesse Turnbull’s fifty-one month sentence for being an unlawful user of controlled substances in possession of a firearm was based in part upon a mandatory enhancement which violated the Sixth Amendment. Specifically, the district court 1 found Turnbull possessed between eight and twenty-four firearms as part of the offense, triggering a four-level enhancement' in Turnbull’s offense level under United States Sentencing Guideline (U.S.S.G.) § 2K2.1(b)(l)(B). Turnbull never challenged the enhancement in the district court on Sixth Amendment grounds, however, and thus we review for plain error. See Fed.R.Crim.P. 52(b).

Under plain error review, Turnbull must show a “reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” United States v. Pirani, 406 F.3d 543, 551 (8th Cir.2005) (en banc). We have reviewed the sentencing transcript and conclude Turnbull cannot show by a reasonable probability he would have received a more favorable sentence if the Guidelines were ■advisory. Although the district court sentenced him at the low end of the applicable guideline range, that fact standing alone is “insufficient ... to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error.” Id. at 553.

Having found no plain error, we reinstate our prior opinion and once again affirm Turnbull’s judgment of conviction and sentence in all respects.

1

. The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.

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PER CURIAM.

This case is before us on remand from the United States Supreme Court for further consideration in light of its decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Booker held enhancements based upon judge-found facts under the mandatory-federal Sentencing Guidelines violate the Sixth Amendment. To remedy the problem, the-Supreme Court struck down the statutory provisions which made the Guidelines mandatory, the effect of which was to “make[] the Guidelines effectively advisory.” Id. at 757.

In this case, Jesse Turnbull’s fifty-one month sentence for being an unlawful user of controlled substances in possession of a firearm was based in part upon a mandatory enhancement which violated the Sixth Amendment. Specifically, the district court 1 found Turnbull possessed between eight and twenty-four firearms as part of the offense, triggering a four-level enhancement' in Turnbull’s offense level under United States Sentencing Guideline (U.S.S.G.) § 2K2.1(b)(l)(B). Turnbull never challenged the enhancement in the district court on Sixth Amendment grounds, however, and thus we review for plain error. See Fed.R.Crim.P. 52(b).

Under plain error review, Turnbull must show a “reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” United States v. Pirani, 406 F.3d 543, 551 (8th Cir.2005) (en banc). We have reviewed the sentencing transcript and conclude Turnbull cannot show by a reasonable probability he would have received a more favorable sentence if the Guidelines were ■advisory. Although the district court sentenced him at the low end of the applicable guideline range, that fact standing alone is “insufficient ... to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error.” Id. at 553.

Having found no plain error, we reinstate our prior opinion and once again affirm Turnbull’s judgment of conviction and sentence in all respects.

1

. The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.

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414 F.3d 942, 2005 U.S. App. LEXIS 14420, 2005 WL 1661346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jesse-e-turnbull-also-known-as-jesse-e-turnbough-ca8-2005.

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