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


1-29-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4888




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"USA v. Parmelee" (2008). 2008 Decisions. Paper 1684.
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                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 06-4888
                                     ___________

                           UNITED STATES OF AMERICA


                                            v.

                            VERNON EARL PARMELEE,

                                                           Appellant.
                                     ___________

              On Appeal from an Order of the United States District Court
                              for the District of New Jersey
                                      (98-cr-00618)
                  District Judge: Honorable Joseph A. Greenaway, Jr.
                                      ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 3, 2008

      Before: FUENTES, JORDAN, Circuit Judges, and DUBOIS,* District Judge.

                           (Opinion Filed: January 29, 2008)


                              OPINION OF THE COURT




      *
       Honorable Jan E. DuBois, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.

                                           -1-
FUENTES, Circuit Judge:

       Vernon Parmelee appeals his 140-month sentence accompanying his jury

conviction for four counts of possession of child pornography in violation of 18 U.S.C. §

2252A(a)(5)(B). He argues that the District Court erred in sentencing based

predominantly on extra-verdict factfinding made by a preponderance of the evidence.

Because Parmelee’s claims are foreclosed by the law of the case doctrine, and because

Parmelee’s sentence was reasonable, we will affirm.1

                                             I.

       As we write for the parties, we will recount only those facts necessary to our

analysis. This is the third time Parmelee’s sentence is being reviewed by this Court.

Parmelee’s first sentence, issued August 21, 2000, was calculated using former United

States Sentencing Guidelines (“Guidelines”) § 2G2.4, which applied to convictions for

possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). However, within the

text of Guidelines § 2G2.4 is a cross-reference to the Guidelines section for a more

serious offense, trafficking in child pornography:

       If the offense involved trafficking in material involving the sexual
       exploitation of a minor (including receiving, transporting, shipping,
       advertising, or possessing material involving the sexual exploitation of a
       minor with intent to traffic), apply § 2G2.2 . . . .

At the sentencing hearing, the District Judge stated that he could find by a preponderance



       1
       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We
have jurisdiction pursuant to 18 U.S.C. § 3742(a).

                                            -2-
of the evidence that the requisites for the trafficking cross-reference had been established.

However, the District Judge interpreted the then-recent Supreme Court decision in

Apprendi v. New Jersey, 530 U.S. 466 (2000), to preclude the imposition of “a sentence

for a more aggravated offense than the one on which the indictment was secured and the

convictions secured.” (App. 236-37.) Applying § 2G2.4, without the cross-reference to §

2G2.2, the District Court imposed a 48-month sentence.

       The government appealed the District Court’s interpretation of Apprendi to this

Court. See United States v. Parmelee, 319 F.3d 583 (3d Cir. 2003) (“Parmelee I”). We

defined the issue on appeal as “whether a sentencing court can apply the trafficking

cross-reference of U.S.S.G. § 2G2.4(c)(2) to enhance a defendant’s sentence for

possession of child pornography, when the court finds by a preponderance of the evidence

that the requisites for the trafficking cross-reference have been established, even though

the defendant was convicted only of possession of materials depicting a minor engaged in

sexually explicit conduct.” Id. at 590. We concluded that the District Court erred,

holding that “[i]n those cases in which a sentencing factor or enhancement does not

increase the penalty for a crime beyond the prescribed statutory maximum, Apprendi is

not implicated and the facts supporting the sentencing factor or enhancement need not be

charged in an indictment or submitted to a jury.” Id. at 591 (citing Harris v. United

States, 536 U.S. 545, 563-65 (2002)). After finding that the District Judge would not

violate the Fifth or Sixth Amendments by applying the cross-reference to § 2G2.2 after



                                             -3-
judicial factfinding by a preponderance of the evidence, we held that application of the

cross-reference to § 2G2.2 was mandatory. Parmelee I, 319 F.3d at 594.

       On resentencing, the District Court again found by a preponderance of the

evidence that Parmelee intended to traffic child pornography, and therefore applied the

cross-reference to § 2G2.2. The District Court imposed a prison sentence of 140 months.

Parmelee appealed this resentencing.

       While Parmelee’s appeal was pending, the Supreme Court decided United States v.

Booker, 543 U.S. 220 (2005), which rendered the Guidelines advisory, rather than

mandatory. See United States v. Cooper, 437 F.3d 324, 325-26 (3d Cir. 2006). In light of

Booker, we remanded Parmelee’s case for a second resentencing. United States v.

Parmelee, 144 Fed. Appx. 255, 256 (3d Cir. 2005) (“Parmelee II”).

       Parmelee’s second resentencing resulted, again, in a sentence of 140 months. The

present appeal is from this sentence.

                                            II.

       Parmelee first argues that the 140-month sentence, which was calculated after the

judge found facts sufficient to support the cross-reference to Guidelines § 2G2.2 by a

preponderance of the evidence, violated his Fifth and Sixth Amendment rights to have a

jury determine, beyond a reasonable doubt, all facts essential to his punishment. While

we have power to review Parmelee’s constitutional challenge de novo, United States v.

Williams, 235 F.3d 858, 861 (3d Cir. 2000), we will decline to do so if another panel has



                                            -4-
already decided the challenge in a prior appeal, In re City of Philadelphia Litig., 158 F.3d

711, 717 (3d Cir. 1998). This discretionary principle, known as the law of the case

doctrine, “is designed to protect traditional ideals such as finality, judicial economy and

jurisprudential integrity.” Id. at 717-718.2 The law of the case doctrine precludes our

review of Parmelee’s constitutional challenge.

       In Parmelee I, this Court held that the Fifth and Sixth Amendments were not

offended by judicial factfinding by a preponderance of the evidence, which resulted in

application of the cross-reference to Guidelines § 2G2.2. Parmelee I, 319 F.3d at 590-91.

This holding was necessary for our final judgment, and is binding on this Court unless

“extraordinary circumstances . . . free us from the constraints of the law of the case

doctrine.” In re City of Philadelphia Litig., 158 F.3d at 718. Parmelee argues that the

Supreme Court’s decision in Booker constitutes “supervening new law,” which is an

extraordinary circumstance allowing this Court to revisit the decision in Parmelee I.

However, after Booker, “[t]he only change in the [sentencing] equation is that, at the end

of the day, the district court is not bound by the recommended Guidelines range, but must

impose a sentence based on all the factors articulated in § 3553(a).” United States v.

Grier, 475 F.3d 556, 561 (3d Cir. 2006) (en banc). In Grier, decided after Booker, we




       2
        We note that our Internal Operating Procedures also prevent panel reconsideration
of holdings from prior precedential opinions: “[N]o subsequent panel overrules the
holding in a precedential opinion of a previous panel. Court en banc consideration is
required to do so.” 3d Cir. IOP 9.1 (July 1, 2002).

                                             -5-
reiterated the holding of Parmelee I, that “[o]nce an individual has been convicted by a

jury beyond a reasonable doubt of the predicate facts of illegal conduct, triggering a

statutory maximum penalty, a court may impose any sentence on the individual up to that

maximum.” Id. at 562. We also reaffirmed that the district court could determine facts

by a preponderance of the evidence, without offending the Fifth or Sixth Amendments, in

order to impose a sentence within the permissible range. Id. at 568. Finally, we held that

“facts relevant to application of the Guidelines—whether or not they constitute a

‘separate offense’— . . . do not implicate the rights to a jury trial and proof beyond a

reasonable doubt.” Id. at 567-68. We conclude, therefore, that Booker did not alter the

law in any way that would justify reevaluating our holding in Parmelee I, and the law of

the case doctrine bars our consideration of this challenge.

                                           III.

       Parmalee also argues that his sentence was unreasonable because the District Court

disproportionately relied on extra-verdict factfinding, thereby overstating the sentence

needed to serve the statutory purposes of sentencing.

       We review sentences for reasonableness, applying the factors set forth in 18 U.S.C.

§ 3553(a). See Booker, 543 U.S. at 261-62. A sentence is reasonable if the record

demonstrates that the sentencing court gave meaningful consideration to these factors.

See Cooper, 437 F.3d at 329.

       The record in this case shows that the District Court thoroughly considered the



                                             -6-
relevant factors set forth in § 3553(a), including the nature and circumstances of the

offense, the need for the sentence imposed, the applicable Guidelines range, and the need

to avoid unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct. In particular, the District Court found the

circumstances of the offense to be “among the most troubling that [have] come before

[the District Court].” (App. 42.) These circumstances removed Parmelee’s case from

“whatever one would call the heartland of cases that fall within the general subject

matter” of possession of child pornography. (Id.) The District Court also addressed

Parmelee’s argument that, according to statistical evidence, defendants charged with

“Pornography/Prostitution” offenses in Parmelee’s criminal history category served a

mean prison sentence of 89 months and a median prison sentence of 78 months. The

District Court found that this statistical information included varied offenses and

unknown circumstances, rendering it inapposite to the particularly troublesome

characteristics of Parmelee’s offense. (App. 44-45.)

       Because the District Court gave meaningful consideration to the sentencing factors

set forth in 18 U.S.C. § 3553(a), we find that the sentence imposed by the District Court

was reasonable.

                                            IV.

       For the foregoing reasons, the judgment of sentence will be affirmed.




                                             -7-
