United States of America v. Shadarryl Turner, a/k/a D, a/k/a Ditto, a/k/a Van Ditto, a/k/a Shad

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5315
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHADARRYL TURNER, a/k/a D, a/k/a Ditto, a/k/a Van Ditto,
a/k/a Shad,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00316-F-1)
Submitted: October 26, 2011 Decided: November 8, 2011
Before WILKINSON, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Clarke Speaks, THE SPEAKS LAW FIRM PC, Wilmington, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Shadarryl Turner pled guilty to conspiracy to commit
credit card fraud, in violation of 18 U.S.C. § 1092(b)(2)
(2006), and credit card fraud, in violation of 18 U.S.C.
§ 1092(a)(2),(5). The district court imposed a seventy-eight
month variance sentence, fifteen months greater than the high
end of the advisory Guidelines range. On appeal, Turner argues
that the district court committed procedural error by denying
counsel an opportunity to address the court before sentencing
and substantive error by imposing a variance sentence. We
affirm.
Appellate courts review a sentence for procedural and
substantive reasonableness under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This court’s review is for plain error because Turner
neither argued for a lesser sentence nor objected to the court’s
failure to invite counsel to allocute. United States v. Lynn,
592 F.3d 572, 577-78, 580 (4th Cir. 2010). Turner must
therefore demonstrate error that is plain and affects his
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993).
“Before imposing sentence, the court must: (i) provide
the defendant’s attorney an opportunity to speak on the
defendant’s behalf.” Fed. R. Crim. P. 32(i)(4)(A)(i). Although

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the district court did not elicit remarks from counsel, it
appears that Turner’s counsel had ample opportunity to have
alerted the court if he had any mitigating arguments to present.
Additionally, even if we assume that the court erred in failing
to elicit comment from counsel, Turner fails to show that the
error affects his substantial rights, as he does not explain
what arguments counsel could have offered in mitigation, or why
they would have justified a lesser sentence. We thus conclude
that Turner has not demonstrated plain error.
The substantive reasonableness inquiry requires the
court to review “whether the District Judge abused his
discretion in determining that the [18 U.S.C.] § 3553(a) [2006]
factors supported [the sentence] and justified a substantial
deviation from the Guidelines range.” Gall, 552 U.S. at 56.
The court must take “‘into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Morace, 594 F.3d 340, 346
(4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S.
Ct. 307 (2010). The court must also “give due deference to the
district court’s decision that the § 3553(a) factors . . .
justify the extent of the variance.” Id. (internal quotation
marks omitted).
Turner’s Criminal History Category was VI without
consideration of his numerous uncounted convictions, and his

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presentence report showed a continuous pattern of credit card
fraud and identity theft. We conclude that the district court
did not abuse its discretion in concluding that the nature of
the offense, Turner’s extensive criminal history, his continued
criminal conduct even after his previous sentences, and his
propensity to commit credit card fraud warranted an above-
Guidelines sentence.
Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED

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