US v. Shadarryl Turner, No. 10-5315 (4th Cir. 2011)
Annotate this CaseCourt Description: Unpublished opinion after submission on briefs: Affirmed
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5315 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHADARRYL TURNER, a/k/a D, a/k/a Ditto, a/k/a Van Ditto, a/k/a Shad, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:09-cr-00316-F-1) Submitted: October 26, 2011 Decided: November 8, 2011 Before WILKINSON, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. R. Clarke Speaks, THE SPEAKS LAW FIRM PC, Wilmington, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Shadarryl Turner pled guilty to conspiracy to commit credit card fraud, in (2006), and credit card § 1092(a)(2),(5). violation fraud, of in 18 U.S.C. violation § 1092(b)(2) of 18 U.S.C. The district court imposed a seventy-eight month variance sentence, fifteen months greater than the high end of the advisory Guidelines range. On appeal, Turner argues that the district court committed procedural error by denying counsel an opportunity to address the court before sentencing and substantive error by imposing a variance sentence. We affirm. Appellate courts review a sentence for procedural and substantive reasonableness discretion standard. (2007). under a deferential abuse of Gall v. United States, 552 U.S. 38, 51 This court s review is for plain error because Turner neither argued for a lesser sentence nor objected to the court s failure to invite counsel to allocute. 592 F.3d therefore 572, 577-78, demonstrate substantial rights. United States v. Lynn, 580 (4th Cir. error that is 2010). plain Turner and must affects his United States v. Olano, 507 U.S. 725, 732 (1993). Before imposing sentence, the court must: (i) provide the defendant s attorney defendant s behalf. an opportunity to speak Fed. R. Crim. P. 32(i)(4)(A)(i). 2 on the Although the district appears that court did Turner s not elicit counsel had remarks ample from counsel, opportunity to it have alerted the court if he had any mitigating arguments to present. Additionally, even if we assume that the court erred in failing to elicit comment from counsel, Turner fails to show that the error affects his substantial rights, as he does not explain what arguments counsel could have offered in mitigation, or why they would have justified a lesser sentence. We thus conclude that Turner has not demonstrated plain error. The court to substantive review reasonableness whether the inquiry District requires the abused his Judge discretion in determining that the [18 U.S.C.] § 3553(a) [2006] factors supported [the sentence] and justified a substantial deviation from the Guidelines range. Gall, 552 U.S. at 56. The the court must take into account totality of the circumstances, including the extent of any variance from the United States v. Morace, 594 F.3d 340, 346 Guidelines range. (4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct. 307 (2010). district The court must also give due deference to the court s decision that the justify the extent of the variance. § 3553(a) factors . . . Id. (internal quotation marks omitted). Turner s consideration of Criminal his History numerous Category uncounted 3 was VI convictions, without and his presentence report showed a continuous pattern of credit card fraud and identity theft. We conclude that the district court did not abuse its discretion in concluding that the nature of the offense, Turner s extensive criminal history, his continued criminal conduct propensity to even commit after credit his previous card fraud affirm. We sentences, and warranted an dispense with his above- Guidelines sentence. Accordingly, we 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 4
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