UNITED STATES OF AMERICA, Aрpellee, v. DONALD TURNER, Defendant, Appellant.
Nos. 23-1848, 23-1849
United States Court of Appeals For the First Circuit
December 27, 2024
Before Rikelman, Lynch, and Aframe, Circuit Judges.
Vivian Shevitz for appellant.
Lindsay B. Feinberg, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, were on brief, for appellee.
AFRAME, Circuit Judge. Defendant-appellant Donald Turner pleaded guilty to bank robbery,
Turner previously had been convicted of numerous violent felonies and was consequently designated an armed career criminal. See
On appeal, Turner argues that his felon-in-possession conviction should be reversed because prosecuting him on this count violated his Second Amendment right “to keep and bear Arms.”
We reject these arguments. Turner waived his as-applied Second Amendment claim by failing to move timely for dismissal of the felon-in-possession count as required by
I. BACKGROUND
We draw the facts underlying Turner‘s convictions from thе government‘s recitation of the offense conduct filed in connection with the change-of-plea hearing and
Turner is a serial bank robber. On March 18, 2006, Turner entered a Gorham Savings Bank in Portland, Maine, and showed the teller a note stating that he was armed and demanding $8,000 in cash. The teller gave Turner approximately $1,800, and he left without being apprehended. Two days later, Turner entered a TD Bank North in South Portland, Maine. He handed the teller a note stating that he had a bomb and told her to give him money. The teller gave Turner $4,000. Turner was later arrested and convicted of two counts of bank robbery,
On June 24, 2011, while on supervised release for his 2006 bank robbery convictions, Turner entered a Bangor Savings Bank in Bangor, Maine. He handed the teller a note claiming that he had a bomb and demanding money. Turner was arrested and again convicted of bank robbery. This time, he was sentenced to seventy-two months’ imprisonment for the robbery, followed by twenty-four months’ imprisonment for violating the terms of his supervised release.
During the afternoon of September 10, 2020, while on supervised release for his 2011 robbery conviction, Turner entered a Bangor Savings Bank in Bangor, Maine. Turner approаched the teller and showed her a note that was not recovered but which essentially stated that he was conducting a robbery and possessed a gun. Turner did not display a firearm. The teller initially provided Turner with money from her cash drawer, much of it in one-dollar denominations. After Turner demanded larger denominations, the teller provided him with just over $1,300 in cash. Turner then placed the robbery note and money in his backpack and left though the bank‘s back door.
After publishing bank video surveillance footage, the police received several reports identifying Turner as the robber. The police eventually found Turner at an apartment in Bangor and arrested him. When the police arrested Turner, they found, among other items, $200 in United States currency and, in his waistband, a .25-caliber Titan-brand firearm.
Following Turner‘s arrest, he made a statement to the police. He said that he had robbed the bank to obtain money so that he could leave Maine before the United States Marshals arrested him for supervised release violations. He also admitted to possessing the seized firearm on the day of the robbery but denied bringing it into the bank, stating that it was missing a firing pin (a fact later confirmed through forensic examination).
On March 10, 2021, a grand jury indicted Turner for bank robbery and possessing a firearm as a convicted felon. On November 2, 2022, Turner pleaded guilty to both counts. Following his guilty рlea, the probation office brought an additional supervised release violation for committing criminal offenses while on release. On October 6, 2023, the district court held a hearing at which it sentenced Turner to 210-month concurrent sentences on the counts of conviction, revoked his supervised release, and imposed a 24-month consecutive sentence for the supervised release violations. Turner timely appealed from the judgments entered in the criminal case and the revocation proceeding.
II. DISCUSSION
A. Second Amendment Claim
We begin with Turner‘s as-applied Second Amendment claim. Although the
We conclude that Turner waived his Second Amendment argument because he did not timely move to dismiss the felon-in-possession count as required by
how Turner put his Second Amendment claim before the district court. We then explain why that presentation did not comply with Rule 12.
The district court established October 11, 2021, as the deadline for filing pretrial motions. Turner did not file any motions aside from a motion to supprеss his post-arrest statements. In June 2022, the United States Supreme Court decided New York State Rifle & Pistol Ass‘n v. Bruen, in which the Court explained that, to overcome a properly preserved Second Amendment challenge to a restriction on firearm possession, the government bears the burden of demonstrating that the restriction at issue is “consistent with the Nation‘s historical tradition of firearm regulation.” 597 U.S. 1, 24 (2022).
Turner pleaded guilty on November 2, 2022. Turner did not mention the Second Amendment until May 19, 2023, when he filed his sentencing memorandum. In a section entitled, “The nature and circumstances of the offense,
At the sentencing hearing, the district court resolved Turner‘s sentencing objections. The final оbjection was Turner‘s Second Amendment claim as just described. The court noted that, although the
The government argued that Turner‘s previous violent felonies were sufficiently dangerous that he lawfully could be prohibited from possessing firearms. Turner responded that the government had not “carried [its] burden,” citing an out-of-circuit district court decision. The government then added that it “could be wrong” but thought that Turner‘s Second Amendment claim “may be waived” because the time for filing motions under Rule 12 had passed “by quite a significant time.” Turner did not claim to have filed a Rule 12 motion to dismiss the indictmеnt but responded that Class v. United States, 583 U.S. 174 (2018), permitted him to raise a Second Amendment claim at any time.
Having heard the parties’ arguments, the district court stated that the objection did not “fail[] for being untimely.” Rather, the court explained that, because of Turner‘s record of violent felonies, the case was not “anywhere near the . . . line” where sentencing him under
Several pertinent facts are apparent. Turner never moved to dismiss the felon-in-possession count of the indictment. He raised the Second Amendment issue as part of an argument for sentencing leniency only аfter he had pleaded guilty to the felon-in-possession offense. The district court called the Second Amendment argument a sentencing “objection,” a label consistent with Turner‘s first presentation of the issue in his sentencing memorandum and one to which Turner did not object. The court further recognized that Turner‘s argument was a sentencing objection when it declined to find the argument untimely. And, when it ultimately rejected Turner‘s argument, it did so by overruling his “objection.”
Because Turner did not seek dismissal of the felon-in-possession count in the district court as required by Rule 12 and has not demonstrated good cause for failing to do so, we do not consider his Second Amendment argument on the merits.3 Rule 12 serves an important purpose: it eliminates “needless inefficiency in the trial process” by requiring parties to timely raise certain defenses, objections, and requests that rest on a reasonably available basis and can be resolved without a trial on the merits. United States v. Crooker, 688 F.3d 1, 10 (1st Cir. 2012); see also
The start of trial is the default deadline for filing
A late-filed
Turner also does not claim that an as-applied Second Amendment argument for dismissal of a count of an indictment falls outside of
Rather, Turner‘s only response is that the district court must have implicitly excused his noncompliance with
The district court‘s statement that Turner‘s Second Amendment argument did not “fail[] for being untimely” does not mean that the court determined that Turner complied with Rule 12 or demonstrated good cause for failing to do so. As explained already, the court did not rule that Turner could proceed with a belated motion covered by
In sum, because Turner did not move in the district court for dismissal of the felon-in-possession count and has not demonstrated good cause for failing to do so, we do not consider the argument on appeal. See Cardona, 88 F.4th at 77–78.
We add a concluding observation. This case demonstrates the importance of compliance with Rule 12 to the orderly consideration of covered claims, including motions to dismiss based on the Second Amendment. By raising a Second Amendment claim as part of a post-plea sentencing argument, Turner caused a situation in which the district court faced what it viewed as a “not insubstantial” question without briefing from the parties. Mandating compliance with Rule 12 spares district courts from having to resolve claims on inadequate records and argument caused by belated and haphazard party presentation. See Cardona, 88 F.4th at 77 (observing that compliance with Rule 12 requires “timely presentation of . . . claims to the district court” to “allow[] full development of the factual record” (quoting Crooker, 688 F.3d at 10)).
B. Sentencing Claims
Following the district court‘s resolution of Turner‘s sentencing objections -- including an objection to the presentence report‘s application of a threat-of-death adjustment under
Turner joined the government‘s request for a 180-month sentence. Turner‘s counsel emphasized that, when Turner committed the bank robbery, he “was in the middle of a mental health crisis . . . was ostensibly homeless, and . . . was suicidal.” Turner‘s counsel noted also that Turner had “asked for help from his probation officer, and, unfortunately, . . . didn‘t get it.” Finally, Turner‘s counsel highlighted that Turner had demonstrated contrition to the district court by, among other actions, withdrawing his motion to suppress and pleading guilty.
Turner then provided a lengthy allocution. He stated that he was high on drugs when hе robbed the bank and that his relapse was a response to stress from having to work during the COVID-19 pandemic in a job that exposed him to the virus.
Turner acknowledged that he felt “terrible” for scaring the teller and that hе “own[ed] what [he] did.” He also stated that he needed drug and mental-health treatment but that the Bureau of Prisons offered inadequate treatment options. After describing himself as “not a violent person,” “the hardest worker,” and “the smartest guy nine times out of ten,” Turner concluded by admitting that he had “done horrible things while on drugs,” which he had to “live with . . . every day.”
Following the argument, the district court determined, without objection, that Turner faced an advisory guideline range of 180 to 210 months. The court then explained its rationale for imposing a sentence at the top of that range. It noted the aggravated nature of the offense, stating that bank robbery was a serious “societal violation” that terrоrizes the teller and instills fear in the community. It also observed that Turner was “a thrice-convicted bank robber [who had] threatened people with violence.”
The district court then accounted for various mitigating factors, including that Turner had experienced trauma from a young age and suffered from mental-health issues and substance abuse disorder. The court did not, however, accept Turner‘s suggestion that the alleged failings by the probation department “resulted in [him] committing another bank robbery.”
Ultimately, the district court explained that:
[T]he criteria [it] find[s] most important to account for is the seriousness of the offense, which can hardly be overstated, particularly in light of remarkably similar criminal history, to provide just рunishment and to afford adequate deterrence. And . . . in this case, to protect the public from further crimes of the defendant.
Given these considerations, the court concluded that a 210-month sentence was “sufficient but not greater than necessary to correspond to the need for the sentence.”
Here, Turner contests the district court‘s sentencing determination on procedural and substantive grounds. Procedurally, he contends that the court erred by (1) declining to rule on the applicability of the threat-of-death adjustment; (2) failing to consider certain mitigating factors; (3) not adequately explaining the chosen sentence; and (4) mistaking his statements about his probаtion officer‘s conduct as indicating a lack of remorse. Substantively, Turner contends that the court overvalued his criticisms of the probation officer and criminal justice system in determining the sentence.
1. Procedural Reasonableness
We begin with Turner‘s procedural claims. Ordinarily, we review such claims for abuse of discretion. See United States v. Bruno-Campos, 978 F.3d 801, 805 (1st Cir. 2020). When, however, a defendant pursues on appeal a procedural claim that was not raised in the district court, we review for plain error. See id. That standard requires the defendant to show a clear or obvious error that affected his
a. Threat-of-Death Adjustment
Turner argues that, in determining the guideline offense level for his bank robbery conviction, the district court should have rejected the presentence report‘s application of the threat-of-death adjustment under
Turner pays little regard, however, to the district court‘s actual ruling: that it would bypass the threat-of-death issue because doing so would not affect the sentencing. Turner‘s only response is that the court had to resolve the point because a favorable ruling would have reduced his guideline offense level for the bank robbery count.
That argument fails.
The district court appropriately invoked
b. Mitigating Factors
Turner argues next that the district court ignored certain mitigating factors in selecting the sentence. In particular, Turner alleges that the court overlooked his desire for drug treatment, his view that the Bureau of Prisons provides inadequate treatment opportunities, his “hard life,” and the fact that his latest crimes were caused by COVID-related stress.
When imposing a sentence, a district court must consider all the relevant sentencing factors under
The district court imposed a sentence within the advisory guideline range after a lengthy hearing which focused primarily on Turner‘s view of the mitigating factors. Turner and his lawyer argued about Turner‘s desire for treatment, his
displeasure with criminal justice system (including the lack of treatment options at the Bureau of Prisons), and the challenges he faced during COVID-19. The presentence report also described Turner‘s upbringing and substance abuse disorder. The court stated that it had considered all this material. It expressly mentioned that Turner “struggled mightily” with a substance abuse disorder and mental health issues, factors that it considered to be mitigating. And it also stated that it understood the “vulnerability” Turner experienced because of his relapse during the COVID-19 pandemic, although this vulnerability did not, in the court‘s view, justify robbing a bank.
On this record, there is no basis for concluding that the district court overlooked Turner‘s presentation of mitigating facts, which it heard just before sentencing him. See Burgos-Balbuena, 113 F.4th at 121. It is apparent that the court considered Turner‘s substance abuse problems and the circumstances of his rеlapse; it simply did not assign those considerations the weight that Turner wanted. See United States v. Rodriguez-Monserrate, 22 F.4th 35, 41 (1st Cir. 2021). That does not constitute a procedural error.
c. Explanation of Sentence
Turner next argues that the court did not provide a sufficient explanation for choosing a sentence above the bottom of the advisory guideline range. We disagree.
We have described the “fail[ure] to adequately explain the chosen sentence” as a type of procedural error.6 United States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010). But an adequate explanation does not require a court to articulate “why it eschewed other suggested sentences.” United States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014). Indeed, even where, as here, the district court chose a sentence different from the parties’ joint recommendation, it is required only to explain “thе sentence it ultimately selects.” Burgos-Balbuena, 113 F.4th at 121 (citing United States v. Bermúdez-Meléndez, 827 F.3d 160, 165 (1st Cir. 2016)).
The district court provided a detailed explanation of the selected sentence. It focused on the seriousness of the offense, emphasizing that bank robberies are a “great . . . violation to the sense of community security.” It also mentioned Turner‘s “remarkably similar criminal history,” which included three previous bank-robbery convictions. These considerations led the court to conclude that а high-end guideline sentence was necessary to protect the public, afford adequate deterrence, and impose just punishment, even accounting for Turner‘s difficult upbringing, mental-health conditions, and substance abuse disorder. This was a sufficient explanation for a within-guideline sentence.
d. Allocution
Turner‘s last procedural claim is that the district court mistook statements he made during his allocution about his probation officer‘s failure to help him before
We disagree with Turner‘s contention thаt the district court misunderstood his allocution. It is of course true that “[a] defendant‘s acceptance of responsibility and his assertion of mitigating circumstances are not necessarily inconsistent or incompatible.” United States v. Singh, 877 F.3d 107, 119 (2d Cir. 2017). And it is also true that a defendant may show remorse while explaining his reason for breaking the law, since “motivation for engaging in criminal conduct is unquestionably a proper consideration at sentencing.” Id. at 120. Nevertheless, a court is not required to accept a defendant‘s explanation for why he committed a crime or why certain factors mitigated his criminal behavior. See, e.g., United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012).
The district court‘s statement that it did not accept that “probаtion‘s failings . . . led ineluctably to yet another bank robbery” does not suggest that the court did not understand Turner‘s point. Rather, the record shows the court simply disagreed with Turner. The court recognized that Turner may have felt “a sense of desperation” based on his perception that his probation officer did not sufficiently help him. And the court did not reject Turner‘s statements that he felt remorse for committing the robbery. But, based on Turner‘s prior record of almost identical offenses, the court concluded — reasonably — that Turner‘s response to his probation officer‘s actions did not justify his conduct, especially where there were “lower risk . . . ways” for Turner to obtain money. As the court viewed it, robbing a bank “represents something quite apart from . . . an addict trying to fund his habit.”
In sum, in rejecting Turner‘s view about the relevance of the probation officer‘s actions to his crime, the district court understood Turner‘s point, it simply disagreed with certain aspects of it. That is not procedural error, and we thus reject Turner‘s allocution-based claims.7
2. Substantive Reasonableness
Turner also argues that the district court imposed a substantively unreasonable sentence. “Challenging a sentence as substantively unreasonable is a burdensome task in any case, and one that is even more burdensome where, as here, the challenged sentence” is within the undisputed advisory guideline range. United States v. Clogston, 662 F.3d 588, 592-93 (1st Cir. 2011). “A sentence is substantively reasonable so long as the sentencing court has provided a ‘plausible sentencing rationale’ and reached a ‘defensible result.‘” United States v. Sayer, 916 F.3d 32, 39 (1st Cir. 2019) (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).
Turner claims that his sentence was substantively unreasonable because the district court assigned excessive weight to his criticisms of the probation officer and the criminal justice system. We disagrеe. These considerations were not even mentioned by the court when it explained its sentencing rationale. To be sure, the court commented on Turner‘s attempt to connect the probation officer‘s actions to his decision
Turner was before the district court for sentencing on his fourth bank robbery. Given a record replete with violent felonies, the distriсt court‘s decision to sentence Turner at the top of the advisory guideline range was a reasonable outcome.
C. Supervised Release Claim
Lastly, Turner claims that the district court committed a procedural error in failing to recognize its discretion to impose a revocation sentence concurrent with the sentences on the counts of conviction. See United States v. Reyes-Torres, 979 F.3d 1, 7 (1st Cir. 2020) (explaining that “treating the [sentencing guidelines] as mandatory” is a procedural error (quoting United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013))). Turner did not raise this argument in the district court. We therefore review it for plain error.
“[W]hen a supervised releasee ‘transgresses the criminal law as well as the conditions of supervision, there is no legal impediment in sentencing [him] both as a criminal and as a supervised release violator.‘” United States v. Tanco-Pizarro, 892 F.3d 472, 483 (1st Cir. 2018) (quoting United States v. Coombs, 857 F.3d 439, 451 (1st Cir. 2017)). And, in those circumstances, a chapter seven policy statement of the sentencing guidelines contemplates a consecutive sentence.
The record does not demonstrate that the district court believed that it was required to impose a consecutive revocation sentence. Before imposing sentence, the court recognized the advisory nature of the guidelines. In addition, Turner specifically requested that his revocation sentence run concurrently, and the government noted that “the Court is well within its discretion to sentence [] Turner to a consecutive term of two years or run it concurrently.” Further, when imposing the consecutive revocation sentence, the court stated that it was doing so to impose additional punishment in recognition that “Turner committed [the robbery] while on federal supervised release,” which it recognized as a factor that it “ha[d] to consider.” The court‘s explanation that it was relying on sentencing considerations to impose the consecutive sentence demonstrates that the court appreciated its discretion to do otherwise.8
III. CONCLUSION
For the reasons stated, we affirm the judgments.