United States v. Turpin

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 29, 2004
• Docket: 04-4085
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-4085

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KEVIN JEROME TURPIN,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph Robert Goodwin, District Judge. (CR-01-261)

Submitted: June 25, 2004 Decided: July 29, 2004

Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Matthew A. Victor, VICTOR, VICTOR & HELGOE, L.L.P., Charleston, West Virginia, for Appellant. Kasey Warner, United States Attorney, R. Gregory McVey, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Kevin Jerome Turpin appeals his jury trial conviction for

conspiracy to distribute and possess with intent to distribute more

than 50 grams of cocaine base, 5 kilograms of cocaine powder, and

100 kilograms of marijuana, in violation of 18 U.S.C. § 846 (2000).

Turpin contends that the evidence presented at trial is

insufficient to sustain his conviction. The verdict of a jury must

be sustained if there is substantial evidence, taking the view most

favorable to the government, to support it. Glasser v. United

States, 315 U.S. 60, 80 (1942). “[S]ubstantial evidence is

evidence that a reasonable finder of fact could accept as adequate

and sufficient to support a conclusion of a defendant’s guilt

beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849,

862 (4th Cir. 1996) (en banc). In evaluating the sufficiency of

the evidence, this court does not review the credibility of

witnesses and assumes the jury resolved all contradictions in the

testimony for the government. United States v. Sun, 278 F.3d 302,

313 (4th Cir. 2002). After careful review of the record in the

light most favorable to the government, and assuming the jury

resolved all contradictions in the testimony for the government, we

conclude that the evidence presented at trial was sufficient to

sustain Turpin’s conviction. Glasser, 315 U.S. at 80; Sun, 278

F.3d at 313; Burgos, 94 F.3d at 862 (setting forth the elements of

conspiracy).

- 2 - Turpin contends that the district court erred by failing

to reduce his sentence pursuant to the Safety Valve provision of

U.S. Sentencing Guidelines Manual § 5C1.2 (2000). In general, this

court reviews a district court’s factual findings for clear error

and its application of the sentencing guidelines de novo. United

States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). In

conducting this review, this court gives due regard to the district

court’s opportunity to judge the credibility of witnesses. 18

U.S.C. § 3742(e) (2000). To qualify for sentencing under the

safety valve provision, a defendant must meet all five criteria set

out in 18 U.S.C. § 3553(f)(1)-(5) (2000), which are incorporated

into USSG § 5C1.2(a)(1)-(5). A defendant who meets these criteria

may be sentenced within the guideline range without regard to any

statutory minimum sentence. Id. Here, the parties agree that

Turpin meets the first four criteria. However, after careful

review of the record, we agree with the district court that Turpin

did not truthfully disclose all he knew about the conspiracy.

Accordingly, we affirm the district court’s determination that

Turpin did not meet the fifth criterion of § 5C1.2(a), and thus

does not qualify for a sentence reduction below the statutory

minimum. Daughtrey, 874 F.2d at 217; USSG § 5C1.2(a)(1)-(5).

We decline to address Turpin’s remaining sentencing

claims, as Turpin is subject to a ten-year mandatory minimum. USSG

§ 5G1.1(b); United States v. Pillow, 191 F.3d 403, 404 (4th Cir.

- 3 - 1999). We therefore affirm Turpin’s conviction and sentence. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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