US v. David Parker
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999622877-2]. Originating case number: 1:12-cr-00059-GBL-1. Copies to all parties and the district court. [999979543]. [15-4023]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4023
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LEE PARKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12−cr−00059−GBL−1)
Argued:
September 20, 2016
Decided:
December 2, 2016
Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.
Richard Daniel Cooke,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
ON BRIEF: Geremy C. Kamens, Acting Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant.
Dana J. Boente, United States
Attorney,
Christopher
Catizone,
Assistant
United
States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
David Lee Parker seeks to appeal the 111-month sentence
entered on his convictions pursuant to his guilty plea to four
counts
of
fraud
(i.e.,
access
device
fraud,
wire
fraud,
and
fraud in connection with computers, in violation of 18 U.S.C.
§§ 1029(a)(2), 1343, and 1030(a), respectively) and two counts
of
identity
theft,
in
violation
of
18
U.S.C.
§ 1028A(a).
Parker’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), and the Government moved to dismiss the
appeal
based
agreement
on
an
between
supplemental
brief
appellate
the
waiver
parties.
raising
contained
Parker
numerous
in
filed
issues,
the
a
and
pro
we
plea
se
ordered
supplemental briefing on the issue of whether the Government
breached the plea agreement at sentencing. Finding no breach and
that the appeal waiver is enforceable, we grant the Government’s
motion and dismiss the appeal.
I.
Parker
agreement
contends
by
that
failing
to
the
Government
recommend
at
breached
sentencing
the
plea
that
the
district court treat the four fraud counts individually, and
that
this
substantial
breach
rights.
constitutes
As
part
plain
of
the
error
affecting
his
plea
agreement,
the
Government promised that it would “recommend to the [district]
[c]ourt
that
at
least
[sic]
the
2
following
provisions
of
the
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Sentencing Guidelines apply.” J.A. 58. The plea agreement then
lists each fraud count -- Counts 1, 3, 5, and 6 -- with its base
offense level and loss amount. The plea agreement states that
U.S.S.G. § 2B1.1 applies to all four fraud counts.
The presentence report grouped Counts 1, 3, 5, and 6 and
calculated
a
base
offense
level
of
7
for
the
group
under
U.S.S.G. § 2B1.1(a)(1). With 20 levels in increases and a three
level reduction for acceptance of responsibility, Parker’s total
offense level was 24. Parker’s criminal history was in Category
III, and the presentence report calculated his Guidelines range
for
the
Parker
group
was
63
to
subject
imprisonment
presentence
at
on
to
Counts
report
78
months’
imprisonment.
consecutive
2
and
4
calculated
terms
(identity
these
Separately,
of
24
months’
theft),
and
the
terms
as
his
prison
Guidelines sentences for those counts. Parker contends that his
total advisory sentencing range would have been lower without
grouping.
At Parker’s initial sentencing in May 2012, the district
court orally
months’
announced
imprisonment
a
on
sentence
Counts
1,
of
concurrent
3,
and
5,
terms
a
of
78
concurrent
sentence of 60 months’ imprisonment on Count 6, and “a sentence
of 24 months consecutive to all other counts for each other for
Counts
2
and
4,”
for
a
total
sentence
the
court
concluded
amounted to 111 months’ imprisonment (rather than 112 months).
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J.A. 129. After the court excused the parties, it “adjust[ed]
[the sentence] to 111” by imposing concurrent sentences of 50
months on Counts 1, 3, and 5, “plus 60.” J.A. 133-34.
Despite
these
oral
pronouncements,
the
district
court’s
docket shows apparent revisions to Parker’s sentence on three
additional occasions: (1) a minute entry reflects the imposition
of another 111-month total prison term; (2) a June 11, 2012,
judgment
reflects
the
imposition
of
another
111-month
total
prison term; and (3) a June 19, 2012, amended judgment reflects
the
imposition
of
yet
another
111-month
total
prison
term.
Parker did not note an appeal from these judgments.
Later, Parker filed a 28 U.S.C. § 2255 motion to vacate,
and the district court denied relief. Parker appealed, and we
concluded,
follows:
modify
in
(1)
granting
that
Parker’s
the
a
certificate
district
sentence
after
court
June
of
appealability,
lacked
6,
jurisdiction
2012,
and
thus
as
to
the
sentences issued in the June 11 and June 19 judgments were of no
effect
and
not
subject
to
appellate
review;
(2)
as
to
the
“operative” sentence for review -- a 61-month sentence on Counts
2
and
4
--
we
determined
that
this
sentence
exceeded
the
statutory maximum for those counts and noted that Parker had
preserved
the
right
statutory
maximum;
to
and
appeal
(3)
any
that
sentence
Parker
was
exceeding
sentenced
the
in
violation of the laws of the United States and that the record
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did not conclusively show he was not entitled to relief on his
contention
that
Accordingly,
Parker’s
by
counsel
order
sentence
rendered
entered
and
on
remanded.
ineffective
April
At
9,
the
assistance.
2014,
we
vacated
resentencing,
the
district court again sentenced Parker to 111 months in prison.
II.
The Government makes three arguments that we cannot reach
the issue of whether the Government breached the plea agreement.
First,
the
Government
contends
that
Parker
has
waived
any
argument on appeal by focusing on the original sentencing, not
the resentencing. Parker correctly points out, however, that the
plea agreement, which is the subject of this appeal, applies to
both the original and subsequent sentencings.
The
Government
next
argues
that
Parker
has
waived
the
argument that it breached the plea agreement by arguing before
the district court that Counts 1, 3, 5, and 6 were groupable.
Although
Parker’s
actions
before
the
district
court
can
be
construed as acceptance of the grouping, his failure to object
to the grouping does not waive his claim that the Government
breached the plea agreement.
See Puckett v. United States, 556
U.S. 129, 138 (2009).
Finally,
the
Government
argues
that
the
law-of-the-case
doctrine precludes review of Parker’s claim. Parker’s § 2255
motion argued that the Government breached the plea agreement by
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applying the two-level enhancement for more than ten victims. We
dismissed that claim in our prior order, specifically holding
that
“[t]he
Government
did
not
breach
the
plea
agreement
by
agreeing with the presentence report’s recommendation to apply a
two-level enhancement to Parker’s offense level for an offense
involving ten or more victims.” J.A. 216-17. The law-of-the-case
doctrine applies to “the same issues in subsequent stages in the
same case.”
United States v. Aramony, 166 F.3d 655, 661 (4th
Cir. 1999). Whether the Government breached the plea agreement
by
agreeing
with
the
two-level
enhancement
and
whether
the
Government breached the plea by supporting the district court’s
grouping of the fraud counts are separate issues. Our previous
decision
held
only
that
the
Government
did
not
breach
the
agreement with regard to the two-level enhancement. Therefore,
the law-of-the-case doctrine does not apply to Parker’s argument
that the Government breached the plea agreement by agreeing to
the grouping of the fraud counts.
III.
We come, then, to the core of Parker’s present argument:
that
the
Government
breached
the
plea
agreement
by
not
recommending that Counts 1, 3, 5, and 6 be treated individually,
rather than grouped. Whether the Government breached the plea
agreement is a question of law that we review de novo. United
States
v.
Lopez,
219
F.3d
343,
6
346
(4th
Cir.
2000).
“[A]
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defendant alleging the Government’s breach of a plea agreement
bears the burden of establishing that breach by a preponderance
of the evidence.” United States v. Snow, 234 F.3d 187, 189 (4th
Cir. 2000). Because Parker did not raise this objection before
the district court, our review is for plain error. See United
States
v.
Mastrapa,
509
F.3d
652,
657
(4th
Cir.
2007).
Accordingly, Parker must show “(1) an error, (2) that is plain,
(3) that affects the defendant's substantial rights, and (4)
that
seriously
affects
the
fairness,
integrity,
or
public
reputation of judicial proceedings.” United States v. Dawson,
587 F.3d 640, 645 (4th Cir. 2009).
“[W]e will not hold the Government to promises that it did
not actually make in the plea agreement.” United States v. Obey,
790 F.3d 545, 547 (4th Cir. 2015). The record does not reflect
that the Government promised Parker that the fraud counts would
be treated separately. Instead, the plea agreement stated that
“the United States and the defendant will recommend to the Court
that
at
least
the
following
provisions
of
the
Sentencing
Guidelines apply,” J.A. 58, and then listed each of the four
fraud counts and each count’s applicable base offense level and
loss amount. Despite Parker’s arguments to the contrary, the
plea agreement does not demonstrate that the parties understood
the
four
grouped
counts
would
be
treated
individually.
Plea
agreements are construed using principles imported from contract
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law, United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997),
and are interpreted by the agreement’s “plain language in its
ordinary sense,” United States v. Jordan, 509 F.3d 191, 195 (4th
Cir.
2007).
applicable
It
is
undisputed
Guideline
for
all
that
U.S.S.G.
four
fraud
§
2B1.1
counts,
is
and
the
Parker
concedes that the counts were subject to mandatory grouping. See
U.S.S.G. § 3D1.2 (“When the offense level is determined largely
on the basis of the total amount of harm or loss,” counts “shall
be grouped together into a single Group” under subsection (d),
which expressly lists § 2B1.1 as a Guideline for which offenses
covered by it “are to be grouped”). Both defense counsel and the
Government are familiar with sentencing procedures. See J.A. 32
(district judge noting during the colloquy that defense counsel
“is a very experienced criminal defense attorney”). Thus, the
logical
reading
of
the
plea
agreement
is
that
it
does
not
address whether the fraud counts would be grouped because both
parties knew they had to be as a matter of law. Furthermore, if
the
parties
were
going
to
stipulate
to
something
that
is
contrary to the Guidelines, it is reasonable to expect the plea
agreement
to
state
that
explicitly.
Parker
has
presented
no
evidence demonstrating that the Government promised to treat the
fraud counts individually, and the plea agreement contained no
language precluding the Government from arguing that the fraud
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should
be
grouped.
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Accordingly,
we
find
that
the
Government did not plainly breach the plea agreement.
IV.
Even if one were persuaded by the rather awkward phrasing
of the plea agreement that the Government committed a breach of
the agreement, any such breach is, manifestly, harmless in the
circumstances of this case. An error is harmless and will not be
corrected
if
“it
did
not
affect
the
defendant’s
substantial
rights.” United States v. Lewis, 633 F.3d 262, 271 (4th Cir.
2011). “A defendant’s substantial rights are affected if the
error affected the outcome of the district court proceedings.”
Dawson, 587 F.3d at 645 (internal quotation marks omitted).
The district court correctly grouped the fraud counts, as
it was required to do under the Sentencing Guidelines. Moreover,
the trial
times,
court
providing
has
sentenced
lengthy
Parker
to
explanations
111
for
months
its
numerous
exercise
of
discretion. At the first sentencing, the district court wanted
to impose a 111-month sentence but incorrectly apportioned the
counts. After we vacated the sentence and ordered resentencing,
the
district
reallocated
court
the
again
months
sentenced
among
the
Parker
to
111
months
but
counts
to
be
within
the
statutory maximums. Because the district court properly grouped
the counts and repeatedly imposed a 111-month sentence, Parker
cannot
plausibly
establish
that
9
his
substantial
rights
were
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affected
by
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the
Government’s
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alleged
breach
of
the
plea
agreement. See generally United States v. Savillon–Matute, 636
F.3d
119,
123
harmlessness
(4th
inquiry”
Cir.
2011)
approach
(applying
in
analyzing
“assumed
error
challenge
to
sentence).
V.
For
the
foregoing
reasons,
the
Government’s
motion
to
dismiss is GRANTED and this appeal is
DISMISSED.
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