                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-30-2006

USA v. Parker
Precedential or Non-Precedential: Precedential

Docket No. 05-3427




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                                                PRECEDENTIAL

 UNITED STATES COURT OF APPEALS FOR THE THIRD
                   CIRCUIT


                           No. 05-3427



                UNITED STATES OF AMERICA

                                v.

                  DARYL LONARD PARKER
                   a/k/a Daryl Lenard Parker
                       a/k/a Junior Parker
                         a/k/a JR Parker
                             a/k/a JR

                       Daryl Lonard Parker,
                                         Appellant


          On Appeal from the United States District Court
              for the Middle District of Pennsylvania
                      (D.C. No. 01-cr-00248-3)
          District Judge: Honorable William W. Caldwell



            Submitted Under Third Circuit LAR 34.1(a)
                         April 21, 2006

 Before: SLOVITER, AMBRO, Circuit Judges, and DuBOIS,*
                    District Judge

                     (Filed: August 30, 2006)



      *
        Honorable Jan E. DuBois, Senior District Judge for the
Eastern District of Pennsylvania, sitting by designation.
William A. Fetterhoff
Fetterhoff & Zilli
Harrisburg, PA 17101

       Attorney for Appellant

Christy H. Fawcett
Office of United States Attorney
Harrisburg, PA 17108

       Attorney for Appellee


                   OPINION OF THE COURT

SLOVITER, Circuit Judge.

        Appellant Daryl Lonard Parker appeals his sentence of
349 months imprisonment imposed following a jury verdict
finding him guilty of conspiracy to distribute more than five
kilograms of cocaine and more than fifty grams of cocaine base
(“crack”) in violation of 21 U.S.C. § 846, and guilty of
distribution and possession with intent to distribute (1) 500
grams or more, but less than 5 kilograms of, cocaine, and (2) 50
grams or more of crack in violation of 21 U.S.C. § 841(a)(1).
Appellant Daryl Parker (also referred to by his street name,
“JR”) will be referred to throughout this opinion as “Parker.”
His cousins, Travis and Michael Parker, will be referred to by
their full names. Parker does not challenge his conviction but
makes the following arguments on appeal: (1) that his sentence
is unreasonable under 18 U.S.C. § 3553(a) because of the
disparity between his sentence and that of his co-defendant, and
(2) that the District Court failed to provide a sufficient statement
of reasons for the sentence as required by 18 U.S.C. § 3553(c).
We write to provide guidance to sentencing courts presented
with sentence disparities among co-defendants.




                                 2
                                I.

        Parker was arrested in June 2001. Two months later, the
grand jury indicted him and three of his co-defendants – Travis
Parker, Michael Parker and Thaddeus Westry – with conspiracy
to distribute and possession with intent to distribute cocaine and
crack in violation of 21 U.S.C. § 846 and with distribution and
possession with intent to distribute cocaine and crack in
violation of 21 U.S.C. § 841(a)(1). Michael Parker and Thadeus
Westry pled guilty pursuant to negotiated plea agreements;
Appellants Daryl Parker and Travis Parker proceeded to trial in
August 2002.

        During the trial, two key witnesses – Juan Estrella and
Michael Parker – testified against Parker. Estrella, who sold
cocaine out of New York City prior to his arrest in June 2000,
testified that approximately every two weeks between 1998 and
1999 he would meet Parker in New York City and sell him ten to
fourteen grams of cocaine. During these meetings, Estrella
offered Parker a commission in the form of cocaine should
Parker bring new clients to Estrella.

       Parker introduced Michael Parker, his cousin, to Estrella.
After purchasing cocaine from Estrella several times, Michael
Parker in turn introduced his brother, Travis Parker, to Estrella.
Parker taught both Michael and Travis how to prepare crack by
“cooking” cocaine. After several trips to New York, Travis
Parker requested that Estrella transport cocaine to York,
Pennsylvania rather than selling it to Travis in New York City.
Estrella made the trip to Pennsylvania ten to twelve times,
selling cocaine to Travis Parker and others.

      As noted above, the jury returned a guilty verdict on
August 22, 2002, against Parker and Travis Parker on both the
conspiracy and distribution counts. On April 28, 2003, Parker
was sentenced to concurrent 349-month terms of imprisonment.1


       1
         His Guidelines sentencing range was 360 months to life
imprisonment, but his sentence reflected an 11-month adjustment
for time served on a related York County case.

                                3
In May 2003, Michael Parker was sentenced to a 125-month
term of imprisonment and Travis Parker was sentenced to
concurrent 324-month terms of imprisonment. On appeal, this
court affirmed the defendants’ convictions but vacated their
sentences, remanding for resentencing in light of United States
v. Booker, 543 U.S. 220 (2005). United States v. Parker, 142
Fed. Appx. 19, 24 (3d Cir. 2005) (unpublished opinion).

       On remand, the District Court resentenced Michael Parker
and Travis Parker to 86 and 180 months of imprisonment,
respectively. By contrast, it resentenced Parker to 349 months
imprisonment, an identical term to that originally imposed. The
Government had argued in favor of imposing Parker’s original
sentence even though it had not opposed a sentence reduction in
the case of Travis or Michael Parker.

        The Government gave several reasons for urging the
District Court not to reduce Parker’s sentence: (1) Parker had a
more significant criminal history than Michael or Travis Parker,
including several violent offenses, (2) Parker’s introduction of
his younger cousins, Michael and Travis Parker, to drug dealers
in New York “transformed this drug case from a . . . small-time
drug dealing operation in York [Pennsylvania], to a big-time
drug dealing operation that was importing large quantities of
powder cocaine and crack . . . from New York to York,” App. at
48-49, and (3) Parker taught Michael and Travis Parker how to
cook cocaine into crack. The prosecutor concluded, “Defendant
defines the term recidivism. There’s no reason to believe that
his behavior would be any different if he were released early on
this offense than it has been in the past.” App. at 52.

       In adopting the Government’s recommendation, the
District Court noted that Parker has a “terrible record.” App. at
52. The Court stated that in contrast to the facts underlying the
resentencings of Travis and Michael Parker, Parker’s
circumstances presented “a very aggravated situation.” App. at
53. The District Court explained its decision to reduce only the
co-defendants’ sentences, noting that Michael Parker “was
largely responsible for the convictions” at trial and that the
younger Travis Parker “had nowhere near the criminal record
that [Parker had] made for [him]self.” App. at 53.

                                4
       Parker timely filed a notice of appeal.

                                  II.

        Parker argues that his sentence is unreasonable under
United States v. Booker, 543 U.S. 22 (2005). In Booker, the
Supreme Court held that the Sentencing Guidelines are to be
treated as advisory, rather than mandatory, under the Sixth
Amendment. Id. We have jurisdiction under 18 U.S.C. §
3742(a)(1) to review sentences for “reasonableness.” United
States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006); see
Booker, 543 U.S. at 261.2 Parker bears the burden of
establishing that his sentence is unreasonable. Cooper, 437 F.3d
at 332.

      For a sentence to be reasonable, the “record must
demonstrate the trial court gave meaningful consideration to the
§ 3553(a) factors.”3 Id. at 329. A district court need not


       2
            We reject the Government’s argument that the
“unreasonableness” standard of review articulated in Booker is
“not a ground for appeal conferring appellate jurisdiction over and
above that conferred by section 3742(a).” Appellee’s Br. at 17. As
we held in Cooper, “We have jurisdiction to review [sentences] for
reasonableness under 18 U.S.C. § 3742(a)(1) (authorizing the
appeal of sentences ‘imposed in violation of law’).” Cooper, 437
F.3d at 327.
       3
           The § 3553(a) factors, in pertinent part, are as follows:

       (1) the nature and circumstances of the offense and
       the history and characteristics of the defendant;
       (2) the need for the sentence imposed–
               (A) to reflect the seriousness of the
               offense, to promote respect for the
               law, and to provide just punishment
               for the offense;
               (B) to afford adequate deterrence to
               criminal conduct;
               (C) to protect the public from further

                                   5
“discuss and make findings as to each of the § 3553(a) factors if
the record makes clear the court took the factors into account in
sentencing.” Id. at 329. We must ensure not only that the
district court considered the § 3553(a) factors, but also that
“those factors were reasonably applied to the circumstances of
the case.” Id. Because the trial court is “in the best position to
determine the appropriate sentence in light of the particular
circumstances of the case,” our review of this application is
deferential. Id. at 330.

        Parker argues that his sentence is unreasonable because it
failed to take into account “the need to avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of similar conduct” as provided by §
3553(a)(6). To support this argument, Parker points to the
disparity between his sentence and that of Travis Parker, which
increased from a difference of 25 months’ incarceration after the
original sentences were imposed to a difference of 169 months’
incarceration after resentencing.


               crimes of the defendant; and
               (D) to provide the defendant with
               needed educational or vocational
               training, medical care, or other
               correctional treatment in the most
               effective manner;
       (3) the kinds of sentences available;
       (4) the kinds of sentence and the sentencing range
       established for–
               (A) the applicable category of offense
               committed by the applicable category
               of defendant as set forth in the
               guidelines . . . ;
       (5) any pertinent policy statement issued by th
       Sentencing Commission pursuant to 28 U.S.C.
       994(a)(2) that is in effect on the date the defendant is
       sentenced;
       (6) the need to avoid unwarranted sentence
       disparities among defendants with similar records
       who have been found guilty of similar conduct. . . .

                                  6
        Parker concedes that “‘a criminal defendant has no
constitutional right to be given a sentence equal in duration to
that of his or her co-defendants.’” United States v. Hart, 273
F.3d 363, 379 (3d Cir. 2001) (quoting United States v. Smith,
839 F.2d 175, 179 (3d Cir. 1988)). He also concedes that
“‘disparity of sentence between co-defendants does not of itself
show an abuse of discretion.’” Id. (quoting United States v.
Cifuentes, 863 F.2d 1149, 1156 (3d Cir. 1988).

       After Booker, district courts must “take account of the
Guidelines together with other sentencing goals” provided in §
3553(a). Booker, 543 U.S. at 259-60. We have concluded that
Congress's primary goal in enacting § 3553(a)(6) was to promote
national uniformity in sentencing rather than uniformity among
co-defendants in the same case. See United States v. Seligsohn,
981 F.2d 1418, 1428 (3d Cir. 1992) (citing United States v.
Higgins, 967 F.2d 841, 845 (3d Cir. 1992)); see also United
States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006) (“[T]he
kind of ‘disparity’ with which § 3553(a)(6) is concerned is an
unjustified difference across judges (or districts) rather than
among defendants to a single case”).4 Therefore, a defendant


       4
          In United States v. Flores, this court suggested that §
3553(a)(6) requires district courts to take into consideration
“sentencing disparities among co-defendants.” United States v.
Flores, 2006 U.S. App. LEXIS 18365, at *34-*35 (2006).
However, this suggestion was dictum. Section 3553(a)(6) was non-
dispositive in Flores because, as the Flores panel recognized, the
co-defendants in that case “were not similarly situated,” id., and the
plain language of § 3553(a)(6) provides that it is applicable only
where there is a “need to avoid unwarranted sentencing disparities
among defendants with similar records who have been found guilty
of similar conduct.” (emphasis added).

        Moreover, even if the statement in Flores were not dictum,
we would be bound to follow our previous precedential
interpretations of § 3553(a)(6): “To the extent that the decision of
a later panel conflicts with existing circuit precedent, we are bound
by the earlier, not the later, decision.” United States v. Monaco, 23
F.3d 793, 803 (3d Cir. 1994); accord Ryan v. Johnson, 115 F.3d

                                  7
cannot rely upon § 3553(a)(6) to seek a reduced sentence
designed to lessen disparity between co-defendants’ sentences.5
       Although § 3553(a) does not require district courts to
consider sentencing disparity among co-defendants, it also does
not prohibit them from doing so. So long as factors considered
by the sentencing court are not inconsistent with those listed in §
3553(a) and are logically applied to the defendant’s
circumstances, we afford deference to the court’s “broad
discretion in imposing a sentence within a statutory range.”
Booker, 543 U.S. at 233; accord Cooper, 437 F.3d at 330



193, 198 (3d Cir. 1997). This court “strictly adheres to its Internal
Operating Procedure 9.1 which provides: ‘It is the tradition of this
court that the holding of a panel in a precedential opinion is
binding on subsequent panels. Thus, no subsequent panel
overrules the holding in a precedential opinion of a previous
panel.’” Mariana v. Fisher, 338 F.3d 189, 201 (3d Cir. 2003).
       5
           Prior to Booker, “[A]s a general proposition, sentence
disparity among co-defendants [was] not a sufficient basis for
departure.” Seligsohn, 981 F.2d at 1428 (citing United States v.
Higgins, 967 F.2d 841, 845 (3d Cir. 1992)). However, we held that
“unusual circumstances” might “constitute an exception” to this
rule. Id. at 1429. One such unusual circumstance might occur, we
noted, where a prosecutor moved for a downward departure in the
case of some but not all similarly situated co-defendants. Id. at
1428. We explained, “We are well aware that the Guidelines have
transferred much discretion in the sentencing process from the
courts to the prosecution. However, we do not believe that
Congress intended that shift to be so drastic as to give the
prosecution the power to bring about downward departures for
some defendants while opposing like treatment for co-defendants
similarly situated.” Id.; see also United States v. Menyweather,
447 F.3d 625, 632 (9th Cir. 2006) (noting that a “discouraged
factor may [nevertheless] be grounds for departure under the
Guidelines if it is ‘present to an exceptional degree or in some
other way makes the case different from the ordinary case where
the factor is present.’”) (citing Koon v. United States, 518 U.S. 81,
96 (1996)); United States v. Hampton, 441 F.3d 284, 287 n.1 (4th
Cir. 2006).

                                 8
(quoting United States v. Williams, 425 F.3d 478, 481 (7th Cir.
2005)). Section 3553(a) both “sets forth numerous factors that
guide sentencing” and “guide[s] appellate courts . . . in
determining whether a sentence is unreasonable.” Booker, 543
U.S. at 261. Where appropriate to the circumstances of a given
case, a sentencing court may reasonably consider sentencing
disparity of co-defendants in its application of those factors. See
Koon v. United States, 518 U.S. 81, 109 (1996) (noting pre-
Booker that unless the Guidelines explicitly prohibit downward
departure on a particular ground, the sentencing court must
determine whether the facts of the case warrant departure on that
ground);6 see also Menyweather, 447 F.3d at 633.

        Even if § 3553(a)(6) were applicable to the co-defendants
in the present case, § 3553(a)(6) by its terms plainly applies only
where co-defendants are similarly situated. See United States v.
Davis, 437 F.3d 989, 997 (10th Cir. 2006) (“While similar
offenders engaged in similar conduct should be sentenced
equivalently, disparate sentences are allowed where the disparity
is explicable by the facts on the record.”). Here, the Court
specifically distinguished its reduction of Michael Parker’s
sentence on the grounds that Michael had assisted in convicting
his co-defendants. Cf., e.g., United States v. Boscarino, 437
F.3d 634, 638 (7th Cir. 2006) (“[A] sentencing difference is not
a forbidden ‘disparity’ if it is justified by legitimate
considerations, such as rewards for cooperation.”). It also
properly distinguished Travis Parker’s reduction in sentence,
noting that he has a far less extensive criminal record than
Parker. Cf., e.g., United States v. Plouffe, 445 F.3d 1126, 1132
(9th Cir. 2006) (“Because Plouffe's criminal history was
different from that of his co-defendant, the district court had a


       6
         Koon’s ruling that abuse of discretion was the appropriate
standard in certain sentencing situations was superseded by 18
U.S.C. § 3742(e), which set forth standards of review on appeal,
including de novo review of departures from the applicable
Guidelines range. However, Booker found § 3742(e) to be
unconstitutional and excised it from the Sentencing Reform Act.
See generally United States v. Menyweather, 447 F.3d 625, 631
(9th Cir. 2006).

                                 9
reasonable basis under the advisory Sentencing Guidelines for
the difference in the sentence each received . . . .”).

       Parker has not met his burden of establishing that his
sentence is unreasonable. The sentencing court reasonably
applied the relevant § 3553(a) factors to Parker’s case after
giving them meaningful consideration.

        Parker also argues that the District Court failed to give a
sufficient statement of reasons under 18 U.S.C. § 3553(c) for its
imposition of sentence. Section 3553(c) requires that a
sentencing court “state in open court the reasons for its
imposition of the particular sentence.” Because Parker did not
object to this at the time of sentencing, we review this claim for
plain error. United States v. Pruden, 398 F.3d 241, 248 (3d Cir.
2005).

        We have also considered carefully Parker’s argument that
the sentencing judge failed to provide a sufficient statement of
reasons for his reimposition of Parker’s sentence. At
resentencing, the District Court heeded counsel’s arguments and
sufficiently articulated its basis for reimposing Parker’s original
sentence. It was not required to comment explicitly on every
§3553(a) factor because “the record makes clear the court took
the factors into account in sentencing.” Cooper, 437 F.3d at 329.
The Court clearly considered the applicable Guidelines range;
the nature, circumstances and seriousness of Parker’s offense;
Parker’s history and characteristics; the need for specific and
general deterrence; and the need to impose a sentence promoting
respect for the law and providing just punishment. See §
3553(a). It did not plainly err.
        We will affirm the judgment of the District Court.




                                10
