United States v. Nathan Parker , 280 F. App'x 899 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 5, 2008
THOMAS K. KAHN
No. 07-14354
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-00045-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHAN PARKER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 5, 2008)
Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.
PER CURIAM:
On October 19, 2005, a Northern District of Georgia grand jury returned a
forty-nine count indictment against Nathan Parker and eleven others.1 The
indictment was the culmination of an investigation into a scheme to commit
mortgage fraud by (1) purchasing houses, inflating their value through bogus
appraisals, and selling them to straw buyers, and (2) brokering or participating in
the sale of property at an inflated value, which, in turn, gave the defendants
inflated profits. The defendants executed their scheme by using false documents
and presenting lending institutions false information to induce them to make loans
to the buyers, many of whom were straw buyers. Parker used his position as a loan
officer with a mortgage company located in metropolitan Atlanta to make the
scheme work.
On April 13, 2007, Parker, having entered into a plea agreement with the
Government, pled guilty to the Count Three conspiracy offense and the Counts
Five and Thirteen wire fraud offenses. The district court sentenced Parker on
August 24, 2007, to prison terms of 60 months on Count Three, 55 months on
Count Five, to run consecutively to the Count Three term, and 55 months on Count
Thirteen, to run concurrently with the Count Five term.
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Counts One through Four charged the defendants with conspiracy to commit mail
fraud, wire fraud, bank fraud, fraudulent use of social security numbers, and money laundering.
Counts Five through Fifteen alleged wire fraud offenses; Counts Sixteen through Twenty-Eight
alleged mail fraud offenses; Counts Twenty-Nine through Thirty-Two alleged bank fraud
offenses; Counts Thirty-Three through Thirty-Eight alleged fraudulent use of social security
numbers; and Counts Thirty-Nine through Forty-Nine alleged money laundering.
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Parker now appeals his sentences, claiming that the Government breached
the plea agreement at sentencing by recommending that the court impose sentences
above the bottom of the Guidelines sentence range. The breach occurred in two
ways: (1) the Government improperly informed the court that it was not bound by
the plea agreement because Parker had breached the agreement, and (2) the
Government recommended a sentence at the “low end” of the Guidelines sentence
range, rather than the “lowest end” as provided in the plea agreement.
Parker did not bring these points to the district court’s attention at
sentencing. Therefore, absent plain error, we will not disturb his sentences.
United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). To establish
plain error, Parker must convince us that (1) error occurred, (2) that was plain,
(3) that affected his substantial rights, and (4) that seriously affected the fairness,
integrity, or public reputation of the judicial proceeding. In most cases, for an
error to affect the defendant’s substantial rights, the error had to have been
prejudicial. That is, the error must have affected the outcome of the sentencing
proceeding. Id.
“The government is bound by any material promises it makes to a defendant
as part of a plea agreement that induces the defendant to plead guilty.
Furthermore, whether the government violated the agreement is judged according
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to the defendant’s reasonable understanding at the time he entered his plea.”
United States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996) (citations and quotations
omitted).
Where we conclude that the government breached the plea agreement by
making an improper recommendation at sentencing, we can “leave the guilty plea
intact and remand the case for resentencing before a different judge,” or permit the
defendant to withdraw the plea. Taylor, 77 F.3d at 371-72.
The Government did not breach the plea agreement in this case; hence, no
error, much less plain error, occurred. The agreement did not forbid the
Government from informing the district court that, in the Government’s view,
Parker had violated the terms of the agreement and consequently had released the
Government from its obligation as to make the sentencing recommendation Parker
says the agreement called for. Moreover, a sentence package at the “low end” of
the Guidelines sentence range is synonymous with one at the “lowest end” of the
range, or the “bottom” of the range. Put another way, the “low end” of the
Guidelines sentence range is simply the lowest possible sentence within that range.
See, e.g., United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007); United
States v. Orisnord, 483 F.3d 1169, 1183 (11th Cir.), cert. denied, 128 S. Ct. 673
(2007); United States v. Thomas, 446 F.3d 1348, 1356 (11th Cir. 2006).
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Parker’s sentences are, accordingly,
AFFIRMED.
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