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United States v. Parker

United States District Court, E.D. Virginia, Richmond Division

November 9, 2016

UNITED STATES OF AMERICA
v.
TROY PARKER

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge.

         Troy Parker, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (w§ 2255 Motion, " ECF No. 49) .[1] Parker contends the Court committed procedural error during his sentencing. Specifically, Parker demands relief because:

Claim One: "Procedural error, in violation of the laws of the United States; [s]pecifically Title 18 U.S.C. § 3553 (c) (2) [.] The Court failed to give a reasonable written explanation for the upward variance." (Id. at 4.)

The Government has responded, asserting that Parker's claim is procedurally defaulted and lacks merit. (ECF No. 54.) Parker has filed a Reply. (ECF No. 56.) For the reasons set forth below, Parker's § 2255 Motion (ECF No. 49) will be denied.

         I. PROCEDURAL HISTORY

         On December 3, 2013, a grand jury charged Parker with one count of sex trafficking of children, in violation of 18 U.S.C. § 1591(a)(1). (Indictment 1, ECF No. 1.) On February 12, 2014, Parker entered into a Plea Agreement, in which he agreed to plead guilty to the one-count Indictment. (Plea Agreement ¶ 1, ECF No. 19.) The Plea Agreement indicated that Parker faced a mandatory minimum sentence of ten years, and a maximum term of life imprisonment. (Id.)

         Prior to sentencing, the Probation Officer prepared a Presentence Investigation Report (“PSR, " ECF No. 24). With a total offense level of 29, and a Criminal History Category II, Parker's Sentencing Guidelines range called for 97 to 121 months of incarceration. (Id. Wksht. D, at 1.) Because of the ten-year mandatory minimum sentence, Parker's restricted range was 120 to 121 months. (Id.) With respect to factors that may warrant a departure, the Probation Officer stated:

The Probation Officer has no information concerning the offense which would warrant a departure from the prescribed sentencing guidelines. However, according to U.S.S.G. § 4A1.3, an upward departure may be warranted based upon the defendant's Criminal History Category not adequately reflecting the seriousness of his past criminal conduct. The Probation Officer recommends such an upward departure.

(Id. ¶ 76.)

         On May 8, 2014, the Government filed a Motion for Variance Sentence, requesting that the Court impose a variant sentence of 144 months. (ECF No. 26, at 1.) The Government argued that "[t]he advisory guideline range of 120-121 months does not take into account the majority of the defendant's criminal history, and therefore, does not appropriately represent an adequate sentence for the defendant compared with similarly situated persons." (Id. at 6.)

         At Parker's sentencing hearing, the Court found it "appropriate to grant a variance." (May 29, 2014 Tr. 16, ECF No. 42.) The Court noted that "had all of the defendant's convictions been counted, he would have been classified as a Career Offender with a Guidelines Advisory Range of 188 to 235 months." (May 29, 2014 Tr. 19-20.) The Court concluded "that the appropriate way to look at the defendant's history and his background is to consider him as if he were a Career Offender, and that provides the Guidelines Range that would be appropriate to impose in this case." (May 29, 2014 Tr. 21.)

         On May 29, 2014, the Court entered judgment against Parker and sentenced him to 188 months of imprisonment. (J. 2, ECF No. 2.) Despite his appellate waiver in his Plea Agreement, Parker filed a Notice of Appeal. (ECF No. 37.) On appeal, Parker argued: (1) that the Court erred by imposing "an upward variance even though the Guidelines adequately dealt with the nature of the offense, " Opening Br. of Appellant at 2, United States v. Parker, No. 14-4549 (4th Cir. filed Oct. 14, 2014);[2](2) that the Court "erred by not considering the variance and departure provisions required by Gall v. United States, 552 U.S. 38 (2007)" (id.); and, (3) that "the Government breached the implied contract terra of good faith in the plea agreement by asking for an upward variance" (id.). On December 17, 2014, the United States Court of Appeals for the Fourth Circuit granted the Government's motion to dismiss Parker's appeal based upon the appeal waiver included in the Plea Agreement, and dismissed the appeal. (See ECF No. 45, at 1.) The Supreme Court of the United States denied Parker's petition for a writ of certiorari on March 23, 2015. Parker v. United States, 135 S.Ct. 1571 (2015).

         II. ANALYSIS

         As his sole claim for relief, Parker states: "Procedural error, in violation of the laws of the United States; [s]pecifically Title 18 U.S.C. § 3553(c)(2)[.] The Court failed to give a reasonable written explanation for the upward ...


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