Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 1-02-cr-00673-005) District Judge: Honorable Jerome B. Simandle
The opinion of the court was delivered by: Rendell, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) September 19, 2012
Before: SLOVITER, RENDELL and HARDIMAN, Circuit Judges
Defendant Dwight Turlington appeals the District Court's judgment of sentence imposed for his having violated the terms of his supervised release. Turlington contends that the District Court erred in sentencing him to a term of five years' imprisonment. He also challenges the substantive reasonableness of the sentence. For the following reasons, we will affirm.
In 2002, Turlington pled guilty to conspiring to distribute more than fifty grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. In 2004, the District Court sentenced Turlington to eighty-four months' imprisonment and sixty months' supervised release.
His sentence was less than one-third of that recommended by the Sentencing Guidelines.
On October 29, 2008, Turlington began his term of supervised release. On September 6, 2009, Turlington was charged with driving under the influence in New Jersey. Then, on December 7, 2009, New Jersey state police observed Turlington engaging in three hand-to-hand drug transactions. When the police approached Turlington and announced themselves, he attempted to flee. During flight, Turlington threw a loaded handgun to the ground. The state police eventually placed Turlington under arrest. They searched Turlington and found $245 in cash and a plastic bag of cocaine. Turlington pleaded guilty to a state charge of possessing a weapon while committing a controlled dangerous substance crime. The New Jersey Superior Court sentenced Turlington to three years' imprisonment for that offense, to run concurrently with any other federal sentence.
As a condition of his supervised release, Turlington was prohibited from committing another federal, state or local crime. He was also prohibited from possessing a firearm or destructive device. On May 26, 2011, the District Court held a revocation of supervised release hearing. At the hearing, Turlington admitted to possessing the handgun and drugs. The District Court revoked Turlington's term of supervised release and sentenced him to a sixty-month prison term. Turlington filed a timely appeal.*fn1
Pursuant to 18 U.S.C. § 3583(e)(3), a district court may revoke a term of supervised release and "require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release" provided that a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, [or] more than 3 years in prison if such offense is a class B felony . . .
In other words, a district court may impose up to a five-year term of imprisonment after revoking supervised release where the underlying offense is a class A felony. Where the underlying offense is a class B felony, a district court may only ...