                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-15-2003

USA v. Parker
Precedential or Non-Precedential: Non-Precedential

Docket 02-1227




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                                                                               NOT PRECEDENTIAL

                             UNITED STATES COURT OF APPEALS
                                  FOR THE THIRD CIRCUIT


                                             No. 02-1227


                                  UNITED STATES OF AMERICA

                                                   v.

                                       NATHANIEL PARKER

                                           Nathaniel Parker, Sr.,
                                                     Appellant


                             Appeal from the United States District Court
                                 for the Eastern District of Pennsylvania
                                   (D.C. Criminal No. 00-cr-00315)
                         District Court Judge: Honorable Bruce W. Kauffman


                           Submitted Pursuant to Third Circuit LAR 34.1(a)
                                        December 20, 2002

                     Before: NYGAARD, ALITO and RENDELL, Circuit Judges

                                       (Filed: January 15, 2003)


                                     OPINION OF THE COURT


RENDELL, Circuit Judge.

        Nathaniel Parker appeals his conviction and sentence for twelve counts of

possession with intent to distribute cocaine and marijuana. Parker raises three issues under

Apprendi v. New Jersey, 530 U.S. 466 (2000), and also claims that the government
encouraged false testimony and violated Brady v. Maryland, 373 U.S. 83 (1963), by failing

to inform him of dealings it had with the government informant who testified at trial. We

will affirm.

          The District Court had jurisdiction under 18 U.S.C. §3231 (2001), and we exercise

jurisdiction pursuant to 28 U.S.C. §1291 (2002). We exercise plenary review over

questions of law, including the District Court’s interpretation of Apprendi. United States v.

Barbosa, 271 F.3d 438, 452 (3d Cir. 2001). Because Parker did not raise the government

misconduct arguments at trial, we review his Brady and false testimony challenges for plain

error. United States v. Olano, 507 U.S. 725, 731-32 (1993). Plain error requires an error,

that is plain, and that substantially affects Parker’s substantial rights. Id.

          In February 2000, Parker sold cocaine to Andrew Scott, a government informant, in

a videotaped undercover operation. Parker was indicted in a superseding indictment for

violations of 21 U.S.C. § 841(a)(1)(2000) (possession with intent to deliver) and 21 U.S.C.

§ 860(a) (distribution of drugs within 1,000 feet of a school). The indictment provided

notice of a prior conviction. In December 2000, a jury found Parker guilty on twelve

counts, made specific findings concerning the quantity and type of drugs involved, and

found that Parker had two prior felony convictions involving crimes of violence or drugs.

These prior convictions qualified Parker as a career offender under U.S.S.G. § 4B1.1

(2000).

          Parker’s Presentence Investigation Report (“PSR”) indicates that the drug quantities

involved in his offenses resulted in a base offense level of 30. USSG § 2D1.1c)(5)

                                                       2
(2000). The probation officer then added a two-level enhancement because the criminal

activity was near a protected location. USSG § 2D1.2(a)(1) (2000). Finally, the probation

officer added a four-level enhancement because Parker was a career offender. Parker’s

offense level as recommended by the PSR was 37, with a criminal history category VI,

which carries a guideline range of 360 months to life. Parker sought numerous downward

departures. After a hearing, the District Court rejected most of Parker’s claims but found

that the career offender status significantly overrepresented his criminal history. The

Court granted a downward departure of two criminal history categories and five offense

levels, resulting in a guideline range of 168-210 months. Parker was sentenced to 180

months on all counts, to be served concurrently.

        Parker poses three challenges to his sentence under Apprendi: that he was found to

be a career offender without having each of his prior convictions listed in the indictment

and submitted to a jury, that enhancements used to increase his sentence were not proven

beyond a reasonable doubt, and that section 841 is unconstitutional. Parker’s first two

Apprendi arguments fail because he was sentenced to 180 months, a sentence well within

the statutory maximum of life imprisonment.1 A sentencing judge “may impose the


        1
          Because we decide that Parker’s first two Apprendi challenges fail on the grounds
that his sentence fell within the statutory maximum, it is unnecessary for us to address his
argument that his prior convictions ought to have been included in the indictment and
submitted to the jury. We note, however, that the government filed an information to
establish prior convictions, Docket No. 48, and that the District Court appears to have
submitted the question of prior convictions to the jury. Furthermore, although Parker
questions the continuing validity of the Supreme Court’s decision in Almendarez-Torres v.
United States, 523 U.S. 224, 228-35 (1998), in which the Court held that prior commission

                                                     3
minimum, the maximum, or any other sentence within the range without seeking further

authorization from [the jury] – and without contradicting Apprendi.” Harris v. United

States, 122 S. Ct. 2406, 2418 (2002). Parker’s constitutionality argument also fails

because we have already squarely rejected the contention that section 841 is

unconstitutional in light of Apprendi. United States v. Kelly, 272 F.3d 622, 624 (3d Cir.

2001).

         Parker’s claims of government misconduct also fail. Parker alleges that Scott’s

testimony identifying Parker as the drug supplier should have been excluded because the

government “knew it was a lie.” However, Parker’s allegations are mere conjectures based

on Scott’s attempt at trial to recant his prior statements identifying Parker as the drug

supplier. And, Scott’s recantation as to Parker’s role is plainly contradicted by the police

surveillance tape. Further, in the end, Scott admitted that Parker was the supplier. Scott

waivered because he was afraid that Parker would know he was the one who set him up, not

because the government told him to lie. One could conclude that any lies Scott told were

his own.




of a crime is a sentencing factor that need not be alleged in an indictment, whatever its
eventual fate, Almendarez-Torres remains binding precedent and forecloses this challenge.
Acknowledging the dicta in Apprendi contemplating an eventual reversal of Almendarez-
Torres does not permit this court to treat that reversal as a fait accompli. See, e.g., United
States v. Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000) (holding that because
“the Apprendi Court specifically declined to revisit or overrule Almendarez-Torres . . . [w]e
are bound by that case to hold that the fact of defendant’s prior felony conviction is not an
element of the offense with which he [need be] charged by indictment, but is, instead, a
sentencing factor”).

                                                     4
        Parker also alleges that the government failed to disclose the full extent of any

benefits the government had promised Scott in return for testifying. This allegation is

based on nothing more than Parker’s belief that Scott “must have had some deal on the

table.” At trial, the government provided detailed information on financial benefits that

Scott received. Furthermore, Parker was given a full opportunity to cross-examine Scott

on this matter. We find no Brady violation nor any prejudice.

        For the foregoing reasons, we will affirm the judgment of the District Court.

_________________________




                                                     5
TO THE CLERK OF COURT:

     Please file the foregoing opinion.




                                            /s/ Marjorie O. Rendell
                                          Circuit Judge
