                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 15-2055
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                 RANDALL PARSONS,
                                                  Appellant
                                    _____________

                     On appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (No. 2-13-cr-00104-001)
                      District Judge: Honorable Joel H. Slomsky

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  November 3, 2016

          Before: CHAGARES, HARDIMAN, and SCIRICA, Circuit Judges.

                               (Filed: November 10, 2016)
                                      ____________

                                        OPINION*
                                      ____________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
CHAGARES, Circuit Judge.

       Randall Parsons appeals the District Court’s judgment of conviction and

sentence. 1 We will affirm the District Court’s judgment.

                                              I.

       We write solely for the parties and therefore recite only the facts necessary to our

disposition. On February 14, 2011, Parsons and two other individuals, Jonathan Andrews

and Joseph Meehan, agreed to rob a CVS Pharmacy at 8525 Frankford Avenue in

Philadelphia. The robbery occurred around 8:30 p.m. that day. Parsons drove the

getaway car to the CVS parking lot and acted as a lookout while Meehan and Andrews

went into the store. Parsons and Meehan each had a handgun; Andrews carried a BB

gun. After Meehan and Andrews demanded drugs from a CVS employee, but before they

had left the premises, police arrived at the scene. By this time, Parsons had already

driven away from the scene, leaving Meehan and Andrews behind.

       As police officers confronted Meehan and Andrews inside the CVS, Meehan fired

his gun at a window in an effort to shatter it to escape. This effort failed, but he and

1
  Parsons is proceeding with this appeal pro se. On June 23, 2015, this Court appointed
counsel to represent Parsons, but Parsons filed a pro se motion on August 21, 2015 for
appointment of new counsel or, in the alternative, to proceed pro se. We granted
Parsons’s motion and appointed the Federal Public Defender to represent him in this
appeal. On November 27, 2015, Parsons filed a pro se motion for leave to proceed pro
se. He did not, however, timely comply with the Court’s order to file a waiver of counsel
form or affirmation; the Court therefore denied his request and an Assistant Federal
Public Defender made an appearance on December 22, 2015. On April 21, 2016, Parsons
again filed a pro se motion for leave to proceed with the appeal pro se and this time
included a signed waiver of counsel form. The Court granted his motion to proceed pro
se.

                                              2
Andrews were able to open a window and climb out. While outside, they encountered

more police officers, and Meehan exchanged gunfire with them before the pair escaped.

Parsons was not apprehended until about two years later, when he was arrested by federal

authorities on March 8, 2013.

       On March 7, 2013, a federal grand jury returned an indictment against Parsons.

Count One of the indictment charged Parsons with attempted Hobbs Act robbery in

violation of 18 U.S.C. § 1951. Count Two charged him with using and carrying and

aiding and abetting the use and carrying of a firearm during a crime of violence in

violation of 18 U.S.C. § 924(c)(1)-(2). After Parsons was arrested, a superseding

indictment was returned on April 11, 2013. The superseding indictment added a third

count of assaulting a federal officer in violation of 18 U.S.C. §§ 111(a)(1), (b). This

count was related to events arising from Parsons’s arrest, when he backed his car into a

police vehicle.

       On January 7, 2014, after a jury was empaneled but before trial began, Parsons

pled guilty to Count One of the superseding indictment. The Government stated on the

record that it would dismiss Counts Two and Three at sentencing and agreed that Parsons

did not brandish or discharge a firearm during the robbery and thus was not subject to the

enhancement under United States Sentencing Guidelines (“U.S.S.G.”) § 2B3.1(b)(2)(A).

       Prior to sentencing, Parsons notified the District Court that he was dissatisfied

with his lawyer and wanted to proceed pro se. The court held a hearing on September 12,

2014 and granted Parsons’s request. It also ordered that Parsons file any motions within

three weeks. A week later, Parsons filed a motion to withdraw his guilty plea and two

                                             3
motions to dismiss the indictment. He later filed eleven more motions, as well as

objections to his Presentence Report and a supplemental sentencing memorandum,

between September 24 and October 31, 2014. The District Court then granted a motion

by the Government to set a deadline for the filing of motions. It set Parsons’s deadline as

December 9, 2014 and the Government’s deadline to respond as December 23, 2014.

       After the deadlines expired, Parsons filed three more motions. The Government

responded to all of his outstanding motions, and Parsons filed rebuttals as well as

additional filings.

       On February 26, 2015, the District Court denied Parsons’s motion to withdraw his

guilty plea. It also denied his other outstanding motions in separate orders issued on

February 26 and 27, 2015. The court’s February 27, 2015 opinion specifically denied

Parsons’s motions to dismiss the indictment, concluding that each of his arguments was

without merit. The court scheduled sentencing for April 21, 2015.

       Between March 12 and April 13, 2015, Parsons filed two motions for

reconsideration, three motions to withdraw his guilty plea, a motion for ineffective

assistance of counsel, and a motion to continue the sentencing. The District Court denied

these motions as untimely and repetitious of motions already denied.

       Parsons was sentenced on April 21, 2015. At the sentencing, the District Court

determined that Parsons had a total offense level of 24, based on a 20-point base offense

level for attempted robbery in violation of 18 U.S.C. § 1951, a one-point enhancement for

the taking of controlled substances during the robbery pursuant to the U.S.S.G. §

2B3.1(b)(6), a six-point enhancement for creating a substantial risk of serious bodily

                                             4
injury by assaulting a law enforcement officer pursuant to U.S.S.G. § 3A1.2(c)(1), and a

three-point deduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b).

The court determined that Parsons’s criminal history score was seven and his criminal

history category was IV. Three of the seven criminal history score points were based on

a 1998 conviction for which Parsons served for eighty-seven days in pretrial detention

and was sentenced to three to twenty-three months of imprisonment with immediate

parole and one year of probation.

       Parsons objected to the application of the six-level enhancement under

section 3A1.2(c)(1), arguing that the enhancement did not apply to him because he had

already left the scene of the crime when Meehan shot at the police. He also objected to

the District Court’s calculation of his criminal history score and category, asserting that

the 1997 conviction carried a suspended sentence and that the suspended portion of the

sentence should not be considered in calculating his criminal history score pursuant to

section 4A1.1(a).

       The District Court rejected both of these arguments and determined that Parsons’s

advisory Guidelines range was 77 to 96 months of imprisonment. The District Court

ultimately sentenced Parsons to 90 months of imprisonment and three years of supervised

release, as well as restitution of $1,650 and a $100 special assessment. The District Court

also granted the Government’s motion to dismiss Counts Two and Three.

       Parsons timely appealed his sentence and conviction.




                                              5
                                             II.

       The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We

have jurisdiction under 28 U.S.C. §§ 1291 and 3742.

       Legal interpretations of the United States Sentencing Guidelines are subject to

plenary review. United States v. Jones, 740 F.3d 127, 132 (3d Cir. 2014). “Factual

findings pertaining to sentencing are reviewed for clear error, and we review application

of the Guidelines to the facts for abuse of discretion.” Id. Procedural errors at sentencing

are also reviewed for abuse of discretion, unless “an appellant fails to raise a

contemporaneous objection below,” in which case the review is for plain error. Id. “We

apply a mixed standard of review to a district court’s decision on a motion to dismiss an

indictment, exercising plenary review over legal conclusions and clear error review over

factual findings.” United States v. Stock, 728 F.3d 287, 291 (3d Cir. 2013).

       As for the District Court’s decision to dismiss Parsons’s ineffective assistance of

counsel motion as untimely, “we accord district courts great deference with regard to

matters of case management.” Drippe v. Tobelinski, 604 F.3d 778, 783 (3d Cir. 2010).

We are careful not to “interfere with a trial court’s control of its docket except upon the

clearest showing that the procedures have resulted in actual and substantial prejudice to

the complaining litigant.” Id. (quoting In re Fine Paper Antitrust Litig., 685 F.2d 810,

817–18 (3d Cir. 1982)).




                                              6
                                            III.

                                            A.

       Parsons challenges his sentence on two bases, both of which he had raised during

his sentencing proceedings. First, he contends that the District Court erred in applying a

six-level enhancement pursuant to U.S.S.G. § 3A1.2(c)(1) because he had already left the

scene when his confederates shot at law enforcement officers. Second, he argues that the

District Court improperly calculated his criminal history score and category by counting

his 1997 sentence as a regular sentence instead of a suspended sentence.

                                             1.

       Section 3A1.2(c)(1) of the advisory Guidelines provides that a six-level

enhancement is warranted if,

       in a manner creating a substantial risk of serious bodily injury, the
       defendant or a person for whose conduct the defendant is otherwise
       accountable . . . knowing or having reasonable cause to believe that a
       person was a law enforcement officer, assaulted such officer during the
       course of the offense or immediate flight therefrom.

Parsons primarily contends 2 that the enhancement does not apply because he had already

left the scene while Meehan shot at the police, and therefore the assault of law


2
  Parsons also appears to assert that at sentencing, the Government presented no evidence
that Meehan and Andrews actually assaulted the police officers. He raises a number of
points with respect to the crime scene evidence in his reply brief. However, Parsons did
not object to the portion of the PSR establishing the facts underlying the enhancement.
Instead, he first challenged the application of this enhancement in his sentencing
memorandum on the basis that the Government had made different representations
regarding the applicability of the enhancement in a pre-plea conversation. Both in his
filings and at sentencing, Parsons also made arguments regarding his lack of knowledge
                                             7
enforcement cannot be attributed to him. The District Court disagreed, reasoning instead

that Parsons was “accountable for the foreseeable conduct of Mr. Meehan and Mr.

Andrews with respect to the gun fight . . . .” Supp. App. 122; id. at 119.3

       The District Court’s determination was correct. Although Parsons left the scene of

the crime and may not have known that his confederates had shot at law enforcement

officers, he is nevertheless “otherwise accountable” for their conduct. Section

1B1.3(a)(1)(B) of the Guidelines defines relevant conduct and specifies that a defendant

is accountable for the conduct of others with whom he jointly undertakes criminal

activity — defined as “a criminal plan, scheme, endeavor, or enterprise undertaken by the

defendant in concert with others, whether or not charged as a conspiracy” — so long as

the conduct is within the scope of, in furtherance of, and reasonably foreseeable in

connection with the jointly undertaken criminal activity. See also U.S.S.G. §

1B1.3(a)(1)(B), cmt. 4(B)(i) (noting that a getaway driver for an armed bank robbery is

responsible for amount of money taken and any assault on the bank teller); cmt. 3(D)



that his confederates would assault a police officer. See Supp. App. 115, 120 (“If I’m not
even there how could I be in concert with the defendants . . . ?”). At no point did Parsons
challenge the underlying facts: that he agreed to drive Meehan and Andrews to the CVS
in order to commit armed robbery, that both he and Meehan carried firearms, and that
Meehan did in fact shoot at officers while fleeing the CVS. In fact, Parsons objected to a
number of other facts in the PSR, including language about parking the getaway car at the
front door of the CVS, but chose not to challenge the facts relevant to this enhancement.
He cannot belatedly do so now.
3
 At sentencing, District Court also based the enhancement on the events of March 8,
2013, when Parsons backed up his car into a police car after being apprehended for his
arrest. The Government has conceded that Parsons’s assault on the officers during his
arrest does not support the application of the section 3A1.2(c)(1) enhancement.

                                             8
(noting that “the criminal activity that the defendant agreed to jointly undertake, and the

reasonably foreseeable conduct of others in furtherance of that criminal activity, are not

necessarily identical” and raising example that both defendants in a robbery are

accountable for the assault of a victim by only one defendant).

       Parsons appears to argue that because he drove away before Meehan discharged

his firearm, it was not “reasonably foreseeable” that Meehan would use the firearm.

Supp. App. 120. 4 That position is contradicted by undisputed facts: Parsons drove

Meehan and Andrews to the store in order to carry out the robbery, hence undertaking the

criminal scheme in concert. Both Meehan and Parsons were armed with firearms;

Meehan’s firing the firearm was within the scope of and in furtherance of the armed

robbery. Parsons also acknowledges that there was reasonably foreseeable risk of bodily

injury to law enforcement. We conclude that the District Court did not improperly apply

the section 3A1.2(c)(1) enhancement.

                                             2.

       Parsons also challenges the calculation of his criminal history score and category.

He contends that his criminal history score should have been six, not seven, which would




4
  Parsons also argues that because he had personally “departed long before the police
arrived on the scene,” the assault did not occur during his “immediate flight.” Parsons
Br. 10. This misses the mark, as it is undisputed that Meehan shot at police officers while
in immediate flight from the offense — that is, the armed robbery. Because Parsons is
accountable for the conduct of his confederates pursuant to U.S.S.G § 1B1.3, he is
accountable for his confederates’ assault on the officers while they fled.

                                             9
result in a criminal history category of III, not IV. 5 Parsons contends that although he

was sentenced to three to twenty-three months of imprisonment for his 1998 conviction,

he received a suspended sentence for all but the eighty-seven days he served in pretrial

detention. Section 4A1.2(b) of the Guidelines requires the Court only to count the

portion of the sentence that was not suspended. For Parsons, this would mean that the

District Court should have only added two points under section 4A1.1(b) for sentences of

at least 60 days but under one year and one month, rather than three points under section

4A1.1(a) for sentences over a year and one month.

       The District Court’s factual determination that the sentence for the 1998

conviction was not a suspended sentence was not clearly erroneous. It reviewed the

sentencing records from the 1998 conviction submitted by the United States Probation

Office. Those records indicate that Parsons pled guilty and was sentenced to “three (3) to

twenty-three (23) months with immediate parole followed by one (1) year reporting

probation.” Supp. App. 195. The records do not contain any indication that the sentence

was a suspended sentence. Parsons argues that functionally, a suspended sentence and a

sentence of immediate parole are the same. However, even though a defendant may

serve the same amount of time under a suspended sentence and a sentence with

immediate parole, “parole is not equivalent to other actions, such as suspension, that

result in a shorter sentence served.” United States v. Frias, 338 F.3d 206, 211 (3d Cir.

5
  Parsons received three criminal history points apiece from two convictions in 1998 and
2001 because each conviction carried a sentence exceeding one year and one month. He
also received one criminal history point for his 2010 conviction for which he was
sentenced to one year probation.

                                             10
2003). Therefore, we conclude that District Court did not err in calculating Parsons’s

criminal history score and category.

                                              B.

       Parsons also challenges the sufficiency of the superseding indictment. These

challenges fail because Parsons entered an unconditional guilty plea to Count One of the

indictment and therefore has waived all of these issues. When a criminal defendant

pleads guilty, “he may not thereafter raise independent claims relating to the deprivation

of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v.

Henderson, 411 U.S. 258, 267 (1973). Accordingly, we will not consider his arguments

regarding the sufficiency of the superseding indictment.

                                              C.

       Finally, we reject Parsons’s challenge to the District Court’s dismissal of his April

4, 2015 motion for ineffective assistance of counsel as untimely. The District Court did

not overstep its substantial discretion to manage its docket by setting deadlines,

especially given Parsons’s prolific filings. See Drippe, 604 F.3d at 783. The District

Court initially set a motions deadline of October 3, 2014. It then set a second, extended

deadline of December 9, 2014. It even accepted several late filings from Parsons that

were filed after that second deadline. It had already ruled on all of those motions in

February 2015 before Parsons chose to file this motion. Moreover, the denial of this




                                              11
motion on timeliness grounds did not cause any substantial prejudice. Parsons is free to

raise the issue in a post-conviction collateral petition. 6

                                               IV.

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




6
    We have considered Parsons’s other arguments and deem them to be without merit.
                                               12
