United States v. Richard Turner
706 F. App'x 345
| 9th Cir. | 2017Background
- Defendant Richard E. Turner pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2).
- The district court sentenced Turner to 46 months’ imprisonment.
- Turner appealed, arguing (1) the sentence was improperly based on the need for education and treatment in violation of Tapia v. United States, and (2) the district court erred in treating Nevada Revised Statute § 453.321 as a categorical "controlled substance offense" under the Guidelines.
- Turner did not preserve these arguments at sentencing; the Ninth Circuit therefore reviewed both issues for plain error.
- The Ninth Circuit found no plain error on the Tapia claim but held the district court plainly erred in treating NRS § 453.321 as categorically a controlled substance offense because Nevada’s schedules include substances not on the federal controlled substances list.
- The court vacated Turner’s sentence and remanded for the district court to determine divisibility of NRS § 453.321 and, if necessary, apply the modified categorical approach; it did not reach substantive-reasonableness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court violated Tapia by basing the sentence on need for education/treatment | Government: Court properly considered education/treatment as a § 3553(a)(2)(D) factor; no Tapia violation | Turner: Sentence was imposed or lengthened to promote education/treatment in violation of Tapia | No plain error; district court did not impose or lengthen sentence to promote treatment under Tapia |
| Whether NRS § 453.321 is categorically a "controlled substance offense" under the Guidelines | Government: NRS § 453.321 is a controlled substance offense for sentencing purposes | Turner: NRS § 453.321 is overbroad because Nevada lists substances not on the federal schedules | Plain error found; NRS § 453.321 is overbroad and not categorically a controlled-substance offense; remand to consider divisibility and modified categorical approach |
Key Cases Cited
- Tapia v. United States, 564 U.S. 319 (2011) (sentencing court may not impose or lengthen a sentence to promote rehabilitation such as education or treatment)
- United States v. Valencia-Barragan, 608 F.3d 1103 (9th Cir. 2010) (plain-error review where defendant did not preserve sentencing objection)
- Madrigal-Barcenas v. Lynch, 797 F.3d 643 (9th Cir. 2015) (Nevada controlled-substance lists include substances not on the federal list)
- United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (framework: first review procedural error, then substantive reasonableness)