Dorsey Useless in Pre-FSA Convict's Supervised Release Appeal

We suspect that a number of drug offenders thought the Supreme Court's Dorsey v. U.S. ruling would be a get-out-of-jail free card. It's not. Dorsey addresses only the applicability of the Fair Sentencing Act (FSA) to those defendants who were convicted of crack cocaine offenses prior to the FSA's effective date — August 3, 2010 — but sentenced after that date.

As the Third Circuit Court of Appeals points out, it does not extend the FSA to defendants who were both convicted and sentenced prior to the effective date of the FSA. Defendants like Dwight Turlington.

In 2002, Turlington pleaded guilty to conspiring to distribute more than 50 grams of cocaine base. The district court sentenced him to 84 months' imprisonment and 60 months' supervised release. His sentence was less than one-third of that recommended Sentencing Guidelines term.

Turlington began his term of supervised release in October 2008. The next year, he ran into trouble.

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 ran. During flight, Turlington threw a loaded handgun to the ground. The state police eventually placed Turlington under arrest, and found $245 in cash and a plastic bag of cocaine on him.

Turlington pleaded guilty to a state charge of possessing a weapon while committing a controlled dangerous substance crime. He was sentenced to three years' imprisonment for that offense, to run concurrently with any other federal sentence.

Since Turlington was prohibited from possessing a firearm or committing another crime under the terms of his supervised release, the district court revoked Turlington's supervised release and sentenced him to a 60-month prison term.

Under 18 U.S.C. § 3583(e)(3), a district court may impose up to a five-year term of imprisonment after revoking supervised release if the underlying offense is a class A felony. Where the underlying offense is a class B felony, a district court may only sentence the defendant to a maximum of three years' imprisonment.

The Fair Sentencing Act of 2010 (FSA) reduced penalties for crack cocaine offenses so that, at the time of his revocation hearing, the underlying offense was classified as a class B felony. As such, Turlington argued that the district court should have sentenced him to no more than three years' imprisonment. (Since Turlington didn't make this argument to the district court, so the Third Circuit was stuck reviewing his sentence for plain error.)

Because, according to Johnson v. U.S., the revocation of supervised release and imposition of the term of imprisonment relates back to the underlying conviction, and because McNeill v. U.S. indicates that § 3583(e)(3) is a backward-looking statute, the Third Circuit rejected Turlington's argument that the district court should have sentenced him as if his underlying offense were a class B felony.

Related Resources:

• U.S. v. Turlington (Third Circuit Court of Appeals)
• Court: We Don't Like It, But It's Not Plainly Unreasonable (FindLaw's Fourth Circuit Blog)
• Waiver of Appeal Applies to Supervised Release Terms (FindLaw's Fifth Circuit Blog)