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United States v. Mary Ann Turner, 04-4185 (2006)

Court: Court of Appeals for the Eighth Circuit Number: 04-4185 Visitors: 10
Filed: Apr. 27, 2006
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 04-4185 _ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the Mary Ann Turner, also known as * Northern District of Iowa. Mary Ann Vlazny, * * [UNPUBLISHED] Appellant. * _ Submitted: April 25, 2006 Filed: April 27, 2006 _ Before RILEY, MAGILL, and GRUENDER, Circuit Judges. _ PER CURIAM. Mary Ann Turner (Turner) pled guilty to possessing methamphetamine after having been convicted of a
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                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-4185
                                   ___________

United States of America,           *
                                    *
          Appellee,                 *
                                    *
     v.                             * Appeal from the United States
                                    * District Court for the
Mary Ann Turner, also known as      * Northern District of Iowa.
Mary Ann Vlazny,                    *
                                    *      [UNPUBLISHED]
          Appellant.                *
                               ___________

                             Submitted: April 25, 2006
                                Filed: April 27, 2006
                                 ___________

Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
                            ___________

PER CURIAM.

      Mary Ann Turner (Turner) pled guilty to possessing methamphetamine after
having been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 844(a)
and 851 (Count 1); and possessing pseudoephedrine knowing it would be used to
manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2) (Count 2). In
December 2004, the district court1 sentenced Turner to concurrent prison terms of 24
months (the statutory maximum) on Count 1 and 71 months on Count 2 (which had


      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
a Guidelines range of 57-71 months). “[I]n its discretion” and “after consideration of
the [18 U.S.C. § 3553(a)] factors,” the court pronounced an identical alternative
sentence in the event the Guidelines were later found to be unconstitutional. On
appeal, Turner’s counsel moved to withdraw and filed a brief under Anders v.
California, 
386 U.S. 738
(1967), and Turner filed a pro se supplemental brief. We
reject their arguments for the reasons discussed below.

       First, in light of Turner’s sworn statements at her change-of-plea hearing, we
see no reason to doubt the validity of her guilty plea. See Blackledge v. Allison, 
431 U.S. 63
, 74 (1977) (“Solemn declarations in open court carry a strong presumption of
verity.”). Second, sentencing on the basis of admitted drug quantities and a prior
felony drug conviction does not result in a Sixth Amendment violation. See United
States v. Alvarado-Rivera, 
412 F.3d 942
, 946 n.3 (8th Cir. 2005) (en banc) (drug
quantity), cert. denied, 
126 S. Ct. 1096
(2006); United States v. Torres-Alvarado, 
416 F.3d 808
, 810 (8th Cir. 2005) (prior conviction). Third, Turner is not entitled to
plain-error relief for erroneous sentencing under a mandatory Guidelines scheme,
because–given the identical alternative discretionary sentence announced–the record
does not establish a reasonable probability that the district court would have imposed
a more favorable sentence under advisory Guidelines. See United States v. Booker,
543 U.S. 220
, 233-37, 245, 258-59 (2005); United States v. Pirani, 
406 F.3d 543
, 550-
54 (8th Cir.) (en banc), cert. denied, 
126 S. Ct. 266
(2005). Fourth, the sentence,
which was at the top of the Guidelines range, was not unreasonable: the district court
stated it had considered the section 3553(a) factors, and we see nothing in the record
to rebut the presumption of reasonableness arising from a sentence within the advisory
Guidelines range. See 
Booker, 543 U.S. at 261-62
; United States v. Lincoln, 
413 F.3d 716
, 717-18 (8th Cir.), cert. denied, 
126 S. Ct. 840
(2005).

       As to the remaining arguments, the district court did not err in declining to
credit Turner for jail time served on a related pending state charge, see United States
v. Wilson, 
503 U.S. 329
, 331-37 (1992) (18 U.S.C. § 3585(b) credit is computed by

                                         -2-
Attorney General rather than district court), in not recommending placement at the
prison facility Turner requested, see 18 U.S.C. § 3621(b) (“The Bureau of Prisons
shall designate the place of the prisoner’s imprisonment.”), or in denying self-
surrender or furlough in the absence of exceptional circumstances, see 18 U.S.C.
§ 3143(a)(1), (b)(1), and § 3145(c); and any ineffective-assistance claim should be
raised in a 28 U.S.C. § 2255 proceeding, see United States v. Hughes, 
330 F.3d 1068
,
1069 (8th Cir. 2003).

      Having reviewed the record independently under Penson v. Ohio, 
488 U.S. 75
,
80 (1988), we find no other nonfrivolous issue. Accordingly, we affirm the judgment,
and grant counsel’s motion to withdraw.
                        ______________________________




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Source:  CourtListener

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