United States v. Terry Patrick Turner

511 F. App'x 840
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 28, 2013
Docket11-14921
StatusUnpublished
Cited by2 cases

This text of 511 F. App'x 840 (United States v. Terry Patrick Turner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Terry Patrick Turner, 511 F. App'x 840 (11th Cir. 2013).

Opinions

PER CURIAM:

In 2011, we vacated the sentence imposed on Terry Patrick Turner and remanded for further proceedings. We con-eluded that the government had failed to show that Mr. Turner himself possessed certain firearms, and as a result there was no basis for assessing a two-level enhancement under USSG § 2Dl.l(b)(l). The record was also unclear as to whether the enhancement could be applied based on the possession of firearms by Mr. Turner’s co-conspirators. See United States v. Turner, 417 Fed.Appx. 880, 882 (11th Cir. 2011).

On remand, the district court again applied the two-level enhancement, and sentenced Mr. Turner to 188 months in prison for conspiring to possess methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 846. Relying on the evidence presented at the initial sentencing hearing, the district court found that Mr. Turner’s co-conspirators had possessed firearms in furtherance of the drug conspiracy and that the requirements under United States v. Gallo, 195 F.3d 1278, 1284 (11th Cir.1999), had been met. Mr. Turner now appeals.

Following review of the record, and with the benefit of oral argument, we affirm. In our view, the district court’s factual findings on the Gallo requirements are not clearly erroneous.

I

Under § 2Dl.l(b)(l), a defendant’s sentence can be enhanced for the possession of a firearm by another person if four requirements are met: “(1) the possessor of the firearm was a co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the defendant was a member of the conspiracy at the time of the possession, and (4) the co-conspirator possession was reasonably foreseeable by the defen[842]*842dant.” Gallo, 195 F.3d at 1284 (11th Cir. 1999).

We review the district court’s findings of fact under § 2D1.1 for clear error, and the application of the guidelines to those facts de novo. See Gallo, 195 F.3d at 1280. A district court’s subsidiary Gallo findings are factual ones that we review only for clear error. See, e.g., United States v. Pham, 463 F.3d 1239, 1246 (11th Cir.2006) (“[T]he district court did not clearly err by finding that it was reasonably foreseeable that a firearm would be possessed by a co-conspirator.”); United States v. Fields, 408 F.3d 1356, 1359 (11th Cir.2005) (“The district court did not clearly err in finding that [the co-conspirators’] possession of the firearms was in furtherance of their drug conspiracy_”). We will not set aside a factual finding unless we are “left with a definite and firm conviction that a mistake has been committed.” Jones v. Childers, 18 F.3d 899, 904 (11th Cir.1994) (citations and internal quotation marks omitted).

II

In 2009, a jury convicted Mr. Turner for his involvement in a methamphetamine distribution conspiracy in northern Florida. Co-conspirators Celso and Custodio Guerra supplied the drugs. Mr. Turner financed several methamphetamine purchases from the Guerra brothers through various liaisons, including co-conspirator Jonathan Stephens. The evidence at the initial sentencing hearing indicated that Mr. Turner had provided a rifle to Custo-dio Guerra, which Mr. Guerra then sold to an undercover Drug Enforcement Administration agent who testified at the hearing. During this transaction, Mr. Guerra also indicated that Mr. Turner had another gun available for sale. Mr. Turner had also provided Mr. Stephens with a firearm, which authorities recovered during Mr. Stephens’ subsequent arrest on other charges.

On remand, the district court made the following findings:

The government has demonstrated through reliable evidence that the defendant had a relationship with co-conspirators Guerra and Stephens that involved the exchange of firearms in trafficking in methamphetamine. Guerra and Stephens possessed firearms during the time the defendant was a member of the drug conspiracy. Guerra and Stephens possessed the firearms in furtherance of the conspiracy to protect themselves, their drugs, and their money, during drug transactions. The possession was reasonably foreseeable to the defendant because he provided the firearms to the co-conspirators and the firearms were used for protection during drug transactions that the defendant financed.

R:631 at 7-8. The district court concluded that the enhancement was appropriate based on the co-conspirators’ firearm possession.

On appeal, Mr. Turner asserts that the evidence does not support the district court’s findings that the gun possession was in furtherance of the conspiracy and that the gun possession was reasonably foreseeable to him. He does not challenge the district court’s other subsidiary Gallo findings.

A

Mr. Turner first argues that the record lacks evidence directly connecting the co-conspirators’ possession of firearms to the drug conspiracy. We disagree.

More than mere gun possession is often required to affirm a district court’s application of a § 2Dl.l(b)(l) enhancement. See United States v. Stallings, 463 F.3d 1218, 1221 (11th Cir.2006) (requiring [843]*843some nexus between the firearm and the drug crime). To permit an enhancement based on a co-conspirator’s firearm possession, that possession must have been “in furtherance” of the conspiracy, a phrase which has been construed to mean that “the firearm helped, furthered, promoted, or advanced” the conspiracy. See United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir.2002) (discussing “in furtherance” in the context of 18 U.S.C. § 924(c)). In Mr. Turner’s case, the district court specifically found that the co-conspirators possessed the firearms for the purpose of “protect[ing] themselves, their drugs and their money.” This finding, we conclude, was not clearly erroneous.

The record includes testimony from Agent Kevin Whittle, an undercover DEA agent who purchased guns and drugs on various occasions during the conspiracy. Agent Whittle testified that he purchased a Mauser rifle from Mr. Custodio Guerra, and discussed purchasing a .45 semi-automatic handgun from Mr. Guerra. Agent Whittle further testified that Mr. Guerra received both guns from “Pat,” who he understood to be Mr. Turner, and that Mr. Guerra discussed his personal practice of being armed during drug transactions. Although Mr. Guerra was not separately armed during his transaction with Agent Whittle, that did not prevent the district court from reasonably inferring that Mr. Guerra generally used guns for protection — including the one he received from Mr. Turner — while selling drugs. After all, the transaction between Mr. Guerra and Agent Whittle was not a drug transaction, and Mr.

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511 F. App'x 840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-terry-patrick-turner-ca11-2013.