United States of America v. Bradley E. Turner

United States Court of Appeals
For the Eighth Circuit
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No. 21-2764
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Bradley E. Turner
lllllllllllllllllllllDefendant - Appellant
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No. 21-2773
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Bradley E. Turner
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: April 11, 2022
Filed: June 13, 2022
[Unpublished]
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.
While on supervised release following a 168-month term of imprisonment and
two prior revocations, Bradley E. Turner possessed methamphetamine with intent to
distribute. He was convicted for violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), &
851. The district court1 imposed a sentence of 63 months on the methamphetamine
conviction and a revocation sentence of 33 months to run consecutively. Mr. Turner
does not challenge his revocation sentence.
As to the 63-month sentence, Mr. Turner argues the district court committed
procedural error when it departed upwardly from criminal history Category III to IV
based on a substantially understated criminal history. See U.S. Sentencing Guideline
§ 4A1.3(a). Mr. Turner concedes the district court was permitted to consider
criminal activity too old to have received criminal history points. See United States
v. Sullivan, 853 F.3d 475, 479 (8th Cir. 2017). He argues specifically that the district
court: (1) inadequately explained the basis for the departure, and (2) failed to take
into account the fact that some of his old and presently unscored criminal history had
been scored and considered for his earlier sentence and revocations.
We reject these arguments. Mr. Turner had dozens of convictions that were old
and not scored for present purposes. Many of these convictions were for assaults,
including domestic abuse assaults and assault against an officer, as specifically
identified by the district court. Combined with the fact that Mr. Turner had spent
more than an intervening decade incarcerated, the district court reasonably viewed
Mr. Turner’s history, in total, as reflecting a level of violence and incorrigibility in
1The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.
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excess of that typically associated with a criminal history Category III. The district
court departed upwardly by only one criminal history category, resulting in a
Guidelines range increase from 51–63 months to 63–78 months. And, the court then
imposed a sentence at the 63-month overlap. The fact that some of Mr. Turner’s older
criminal history had been considered at earlier sentencings or revocations does little
to suggest the district court misapprehended his dangerousness.2
To the extent that Mr. Turner relies on cases indicating a district court must
consider potential intermediate criminal history categories when deciding the extent
of a section 4A1.3 departure, we reject his argument as applied to the present one-
category departure. See Sullivan, 853 F.3d at 479; United States v. Azure, 536 F.3d
922, 931 (8th Cir. 2008); United States v. Hacker, 450 F.3d 808, 812 (8th Cir. 2006).
We affirm the well-reasoned judgment of the district court.
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2The government argues our review is only for plain error. Finding no error,
plain or otherwise, we need not apply the more stringent analysis.
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