                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-1-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2283




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                                                   NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                 __________

                     No. 07-2283
                     __________

          UNITED STATES OF AMERICA

                           v.

                  JERMAINE PARKS
         a/k/a TRUMAN JERMANE PARKS
               a/k/a MARCUS WRIGHT

                     Jermaine Parks,

                                       Appellant
                     __________

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
           (D.C. Criminal No. 06-cr-00509)
      District Judge: Honorable Juan R. Sanchez
                      __________

      Submitted Under Third Circuit LAR 34.1(a)
                  on June 30, 2008

Before: RENDELL, SMITH, and FISHER, Circuit Judges.

                (Filed August 1, 2008)


                     __________

             OPINION OF THE COURT
                   __________
RENDELL, Circuit Judge.

       Jermaine Parks appeals his sentence of 33 months’ imprisonment for escaping

from custody in violation of 18 U.S.C. § 751(a). He argues that (1) the sentence he

received was unreasonable and (2) the District Court denied him due process by refusing

to apply a four-level offense level reduction based on facts proven by a preponderance of

the evidence, rather than beyond a reasonable doubt. For the reasons provided below, we

will affirm.

       On June 23, 2006, Parks signed out of Luzerne Community Corrections Center

(“LCCC”), a halfway house in Philadelphia, Pennsylvania where he was serving the final

160 days of a previous sentence, to attend his daily job at Core Flex Warehouse. LCCC

placed a call to the warehouse to verify Parks’s attendance at work that day and found out

that Parks never arrived. After checking with local law enforcement and hospitals

regarding Parks’s whereabouts, LCCC placed Parks on escape status at 10:00 p.m. Parks,

upon escape, took up residence at 7817 Fayette Street in Philadelphia.

       On June 29, 2006, six days after failing to report to work, Parks was shot a number

of times in the leg in front of a house on the 7700 block of Fayette Street. The driver of a

pickup truck transported him to Germantown Hospital, where the police questioned Parks

about the situation surrounding his injuries. Parks answered the police with the false

name of “Marcus Wright” and inaccurately stated that the shooting occurred at




                                             2
Tulpehocken and Musgrave Streets, not Fayette Street. Based in part on the

misinformation relayed by Parks, the police began to investigate the incident.

       Later that day, after Parks was transferred to Albert Einstein Medical Center,

police detectives again questioned him. Parks persisted with the same false information.

At this point, the police had interviewed the driver of the pickup and had verified that the

crime scene was actually at Fayette Street. The police then asked Parks if his answers to

their questions were truthful. Parks replied that “the truth will come out in time.” (App.

35.) Subsequently, Parks’s mother arrived at the hospital and positively identified him.

With accurate information, the police were able to establish that Parks was wanted by the

United States Marshals Service for escape from LCCC.

       On July 6, 2006, in relation to this incident, Parks was charged by the state with

filing a false report, in violation of 18 Pa. C.S. § 4096, and with giving false identification

to a police officer, in violation of 18 Pa. C.S. § 4914. On September 20, 2006, a federal

grand jury indicted Parks for escaping from LCCC, and, on December 6, 2006, Parks pled

guilty to this charge.

       At sentencing for the federal offense, the defense objected to the omission by the

Presentence Investigation Report (“PSR”) of a four-level offense level reduction that

generally applies “[i]f the defendant escaped from the non-secure custody of a community

corrections center, community treatment center, ‘halfway house,’ or similar facility.”

U.S.S.G. § 2P1.1(b)(3). The PSR did not apply the four-level reduction because the



                                              3
Guidelines provide that it is unavailable “if the defendant, while away from the facility,

committed any federal, state, or local offense punishable by a term of imprisonment of

one year or more,” U.S.S.G. § 2P1.1(b)(3), and the state charges pending against Parks

were punishable by up to one year, 18 Pa. C.S. § 1104(3). Parks argued, inter alia, that he

did not commit the state offenses with which he was charged as his actions did not meet

the elements of those offenses. However, the Court overruled this objection to the PSR

and found by a preponderance of the evidence that Parks did in fact violate the state

statutes in question.

       The PSR did reduce Parks’s offense level by two for acceptance of responsibility,

for a total offense level of 11. Parks’s criminal history category of VI, the maximum,

along with the offense level, resulted in an advisory Guidelines sentencing range of 27-33

months. Parks’s counsel recommended “a bottom of the guideline sentence or lower” to

properly account for the fact that, according to Parks, he only escaped from LCCC and

lied to the police in order to avoid an unspecified threat to his life. (App. 153.) The

District Court, however, did not take this recommendation, and imposed a top-of-the-

Guidelines sentence of 33 months’ imprisonment. The defendant filed a timely notice of

appeal.

       The District Court had subject matter jurisdiction over Parks’s case pursuant to

18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742.



                                              4
       Parks’s first contention on appeal is that the 33-month prison sentence was

unreasonably long. In evaluating such a claim, we review the sentence for both

procedural and substantive reasonableness. United States v. Lessner, 498 F.3d 185, 203

(3d Cir. 2007). As we explained in Lessner, “[t]o be procedurally reasonable, a sentence

must reflect a district court’s meaningful consideration of the factors set forth in 8 U.S.C.

§ 3553(a).” Id. Thus, a district court “‘should set forth enough to satisfy the appellate

court that [it] has considered the parties’ arguments and has a reasoned basis for

exercising [its] own legal decisionmaking authority.’” Id. (quoting Rita v. United States,

127 S.Ct. 2456, 2468 (2007)). In addition, “[f]or a sentence to be substantively

reasonable, a district court must apply the § 3553(a) factors reasonably to the

circumstances of the case.” Id. at 204. This deferential standard is appropriate because

the district court is “in the best position to determine the appropriate sentence in light of

the particular circumstances of the case.” United States v. Cooper, 437 F.3d 324, 330 (3d

Cir. 2006).

       Parks maintains that his motivation for his escape and subsequent untruthfulness

with the police — the alleged threat to his life — and the fact that he just barely missed

qualifying for the § 2P1.1(b)(3) offense level reduction called for a downward variance

from the Guidelines range.1 The record demonstrates that the District Court considered


  1
    In arguing that his marginal disqualification from the § 2P1.1(b)(3) reduction made a
below-Guidelines sentence appropriate, Parks relies on United States v. Grove, 150 F.
Supp. 2d 1270 (M.D. Ala. 2001). We are not bound by this case, as it is from the Middle

                                               5
whether the nature and circumstances of Parks’s escape warranted a downward variance,

including both parties’ positions on the issue, along with the PSR, Parks’s courtroom

statement and prior correspondence to the Court, the Guidelines range, and the other

§ 3553(a) sentencing factors, in determining an appropriate sentence. The District Court

placed particular emphasis on Parks’s significant criminal history, history of substance

abuse, and need for vocational skills. Based on these variables, the District Court found

that a top-of-the-Guidelines sentence of 33 months was necessary to adequately punish

Parks, meet Parks’s rehabilitation needs, and deter him and others from committing

similar crimes in the future. Because the record satisfactorily shows that the District

Court meaningfully considered the factors set forth in § 3553(a) and reasonably applied

them to the circumstances of this case, we must reject Parks’s argument that his sentence

was unreasonable.

       The second contention by Parks, that his right to due process was violated by fact

finding at sentencing using a preponderance of the evidence standard, was raised with the

intention to preserve the issue for review by the United States Supreme Court. Parks

concedes that we held in United States v. Grier that “[f]acts relevant to [the] application




District of Alabama. Also, the facts in Grove are clearly distinguishable. For instance,
the defendants in Grove voluntarily returned to the non-secure facility from which they
escaped. Id. at 1272. On the contrary, Parks did not voluntarily return to LCCC and
Parks continually lied to police to avoid detection while in the hospital.

                                              6
of the Guidelines” may be found by a preponderance of the evidence. 475 F.3d 556, 567

(3d Cir. 2007).

       For the foregoing reasons, we will AFFIRM the Judgment and Commitment Order

of the District Court.

_________________




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