United States v. Kenneth Parnell ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-4100
_____________
UNITED STATES OF AMERICA
v.
KENNETH PARNELL,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-12-cr-00418-006
District Judge: The Honorable Juan R. Sanchez
_____________
Argued February 29, 2016
Before: McKEE, Chief Judge, SMITH, and HARDIMAN, Circuit Judges
(Opinion Filed: June 13, 2016)
Eric B. Henson [ARGUED]
Robert A. Zauzmer
Virginia P. Pratter
Zane David Memeger
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
Stephen P. Patrizio [ARGUED]
Suite 1205
1500 John F. Kennedy Boulevard
Two Penn Center Plaza
Philadelphia, PA 19102
Counsel for Appellant
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OPINION
________________
SMITH, Circuit Judge.
This appeal stems from a stash-house robbery sting operation that took place
in Philadelphia from June to July of 2012. Of the eight individuals caught in the
operation, three pled guilty prior to trial.1 Following their convictions in a joint
trial, the remaining five,2 including Appellant Kenneth Parnell, filed separate
appeals, each contesting various issues relating to their convictions (and, for some,

This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
1
These were Najee Murray, Lafayette Rawls, and Jamie Dales.
2
Parnell’s co-defendants at trial were Marlon Graham, Kareem Long, Frank
Thompson, and Robert Lamar Whitfield. Separate opinions resolving each co-
defendant’s appeal were previously filed. See United States v. Graham, No. 14-
3717; United States v. Long, No. 14-3703; United States v. Thompson, No. 14-
4512; United States v. Whitfield, No. 14-3345.
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their sentences). For the reasons explained below, we will uphold Parnell’s
convictions and corresponding sentence.
I.
In June of 2012, a confidential informant (CI) contacted Robert Lamar
Whitfield and asked him for help getting in touch with a mutual acquaintance so
that the CI could invite the acquaintance to rob a drug stash house. Whitfield
instead volunteered to take care of the robbery himself, claiming that he had
significant experience robbing stash houses in the past. The CI then put Whitfield
in touch with the CI’s “uncle,” who turned out to be an undercover agent for the
Bureau of Alcohol, Tobacco, and Firearms (ATF). Whitfield met with the agent
on several occasions to discuss the robbery. To facilitate the crime, Whitfield
recruited others to join in the scheme, who in turn recruited others, including
Parnell.
Plans came to a head on July 18 when Parnell and seven others met with the
undercover agent in the parking lot of a Hilton Hotel where the agent once again
told those present about the robbery, including that he expected ten kilograms of
cocaine to be inside the stash house, and that he expected the house to be guarded
by two men, one with a pistol and the other within reach of an assault-style rifle.
The agent then made clear that any who wished to withdraw should do so at that
time. After no one expressed hesitation about the plan, the group proceeded to a
3
junkyard, presumably to check out a van that the agent was to have rented for use
during the robbery. There, the group continued making preparations for the
robbery, with several individuals arranging and inspecting firearms and
distributing gloves to all present. At the undercover agent’s signal, law
enforcement officials swarmed the yard and arrested the group.
A grand jury returned an indictment charging each of the co-conspirators
with multiple inchoate Hobbs Act robbery and drug distribution offenses, as well
as with the crime of carrying a firearm during and in relation to a crime of violence
or a drug trafficking crime. Additionally, Long, Thompson, and Dales were
charged with being felons in possession of a firearm, though Long and Thompson
were both acquitted at trial on this count. The jury convicted Parnell and the four
other defendants on all counts for which they were mutually charged. Parnell was
subsequently sentenced to 192 months in prison.3 He then timely filed this appeal.4
3
After his sentencing, Parnell filed a pro se motion to reduce his sentence pursuant
to Amendment 782 to the Sentencing Guidelines. The government in its appellate
brief notes that it has agreed that Parnell’s sentence may be reduced to 182 months,
but that the District Court has not yet ruled on the motion. Nothing in this opinion
should be construed to affect the District Court’s decision regarding Parnell’s
motion for a reduced sentence under Amendment 782.
4
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
4
II.
Parnell raises a number of issues for our consideration on appeal. First, he
argues that there was insufficient evidence presented at trial to support his
conviction for conspiracy to possess with intent to distribute cocaine. Second, he
claims that the District Court committed two errors affecting his sentence. And
finally, he claims that his sentencing enhancement under 18 U.S.C.
§ 924(c)(1)(A)(i) should be overturned in light of the Supreme Court’s recent
decision in Welch v. United States, 136 S. Ct. 1257 (2016).5 We will discuss each
argument in turn below.
A.
Parnell claims that because the government failed to introduce any evidence
at trial regarding the defendants’ post-robbery plans for the stolen cocaine, no
reasonable jury could have concluded that he entered into an agreement to possess
5
Parnell raises several other issues that some or all of his co-defendants have also
raised. First, he claims that the District Court should have dismissed the
indictment – or, in the alternative, granted the defendants’ motion for acquittal –
because the fictitious stash-house robbery could not possibly “affect[] commerce”
as required for conviction under the Hobbs Act. 18 U.S.C. § 1951(a). Second,
Parnell argues that the District Court should have granted the motion for discovery
to pursue a claim of selective enforcement. Third and finally, he claims the
District Court erred in denying his and his co-defendants’ motion to dismiss the
indictment based on “outrageous government conduct.” We rejected these or very
similar arguments in United States v. Whitfield, No. 14-3345, and do so here for
the same reasons expressed in that opinion.
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the cocaine with intent to distribute.
We review a challenge to the sufficiency of the evidence “from the
perspective of a reasonable juror.” United States v. Caraballo-Rodriguez, 726 F.3d
418, 431 (3d Cir. 2013) (en banc). We must uphold the jury’s verdict “as long as it
does not ‘fall below the threshold of bare rationality.’” Id. (quoting Coleman v.
Johnson, 132 S. Ct. 2060, 2065 (2012)). To convict someone of a conspiracy
crime, the jury must find the following elements: “(1) a shared unity of purpose;
(2) an intent to achieve a common illegal goal; and (3) an agreement to work
toward that goal.” Id. at 425.
We conclude that the evidence of Parnell’s guilt on the drug conspiracy
charge was sufficient to support the jury’s verdict. In order to prove that Parnell
and his co-conspirators agreed to possess the cocaine with intent to distribute, “the
government . . . need not show that the conspirators agreed on the details of their
criminal scheme” so long as it can “show the ‘essential nature of the plan.’”
United States v. Treadwell, 760 F.2d 327, 336 (D.C. Cir. 1985) (quoting
Blumenthal v. United States, 332 U.S. 539, 557 (1947)). The government put forth
substantial evidence of the co-conspirators’ plan to rob a stash house that they
believed would contain at least ten kilograms of cocaine. The jury was therefore
free to infer that the co-conspirators, including Parnell, intended to share in the
proceeds of the distribution of that cocaine. See Caraballo-Rodriguez, 726 F.3d at
6
431 (“[The jury’s] verdict can be supported by direct or circumstantial evidence,
and reasonable inferences can be drawn from both types of evidence.”); see also,
e.g., United States v. Vargas, 945 F.2d 426, 428-29 (1st Cir. 1991) (holding that
one-kilogram quantity of cocaine “was large enough to support a fair jury
inference that it was not intended merely for personal consumption”).
B.
Parnell also argues that the District Court committed two errors in
calculating his Guidelines range. First, he claims that the District Court
improperly attributed to him all ten kilograms of cocaine. Second, he contends that
the District Court did not make the necessary factual findings to support his
enhancement for obstruction of justice. We will address each argument in turn.
1.
Parnell argues that it was error for the District Court to attribute to him all
ten kilograms of cocaine for purposes of calculating his sentencing range because
there was no evidence presented at trial regarding how the cocaine would be
distributed among the conspiracy participants after the robbery. We review for
clear error the District Court’s findings of fact regarding the relevant quantities of
drugs attributable to Parnell. See United States v. Perez, 280 F.3d 318, 352 (3d
Cir. 2002).
The Sentencing Guidelines instruct district courts to calculate the sentencing
7
range for drug trafficking offenses based on the quantity of drugs involved in the
offense. See U.S.S.G. § 2D1.1(c). To calculate the amount of drugs attributable to
a given defendant, district courts look to the defendant’s “relevant conduct.”
Perez, 280 F.3d at 352. Relevant conduct in conspiracy cases includes “all acts . . .
of others that were (i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in
connection with that criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). This means
that, in drug cases, “the defendant is accountable . . . [for] all quantities of
contraband that were involved in the transactions carried out by other participants,”
so long as those transactions meet the three criteria spelled out above. Id. § 1B1.3
cmt. n.3(D). Also, in reverse-sting cases like this one, the quantity of drugs used to
calculate the sentencing range is the quantity that the defendant agreed to rob,
unless the defendant can demonstrate that he either “did not intend [to rob], or was
not reasonably capable of [robbing], the agreed-upon quantity.” Id. § 2D1.1 cmt.
n.5. A district court making this quantity determination should apply the
preponderance standard. United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007)
(en banc).
Applying these principles to Parnell, there was ample evidence in the record
to support a finding that Parnell and his co-conspirators agreed to rob a stash house
containing at least ten kilograms of cocaine. Even though Parnell surely would not
8
have ended up with all ten kilograms, the distribution of all ten kilograms by his
co-conspirators would have been “within the scope of, [ ] in furtherance of,” and
“reasonably foreseeable in connection with [the jointly undertaken] criminal
activity.” U.S.S.G. § 1B1.3 cmt. n.3(D). Moreover, Parnell introduced no
evidence suggesting that he did not actually intend to rob the full ten kilograms, or
that he was not reasonably capable of robbing that amount. Therefore, the District
Court did not err in attributing to Parnell the full ten-kilogram quantity of cocaine.
Cf. Perez, 280 F.3d at 353-54 (no clear error where district court attributed to
defendant full amount of drugs found in co-conspirator’s apartment where
defendant was present and providing security during distribution).
2.
Parnell claims that the District Court made inadequate factual findings to
support an enhancement for obstruction of justice. The court was required to apply
the preponderance standard in making factual findings to support the enhancement.
Grier, 475 F.3d at 568. Again, we review for clear error the District Court’s
factual findings, and for abuse of discretion its application of the Guidelines to the
facts. United States v. Kluger, 722 F.3d 549, 555 (3d Cir. 2013).
The Sentencing Guidelines instruct the sentencing court to assess a two-level
enhancement if a defendant willfully obstructs, or attempts to obstruct, justice in
the prosecution of his charged offenses. U.S.S.G. § 3C1.1. Obstructive conduct
9
under § 3C1.1 includes committing perjury, as well as “threatening, intimidating,
or otherwise unlawfully influencing a . . . witness.” Id. § 3C1.1 cmt. n.4(A)-(B).
The government claimed at sentencing that Parnell perjured himself at trial.
For example, the government noted Parnell’s testimony in which he denied making
various statements that the government attributed to him and that could be heard on
an audio recording of the group’s meeting at the Hilton, even though the
undercover agent testified at trial that he knew it was Parnell’s voice because he
was standing right next to Parnell during the meeting. The government also
claimed that Parnell threatened Rawls, a cooperating co-conspirator, shouting out
the street address of Rawls’ family to all present in the court cellblock during a
lunch break at trial.
The District Court explained at length why it found the obstruction
enhancement appropriate, explicitly finding all the facts necessary to support the
conclusion that Parnell perjured himself and that he threatened a witness. We will
therefore uphold the District Court’s application of the obstruction enhancement.
C.
In Johnson v. United States, the Supreme Court held that the “residual
clause” of 18 U.S.C. 924(e)(2)(B)(ii) was unconstitutionally vague. 135 S. Ct.
2551, 2563 (2015). After oral arguments in this appeal, the Supreme Court issued
its opinion in Welch v. United States, which held that Johnson applies
10
retroactively. See 136 S. Ct. 1257, 1265 (2016). We then granted Parnell’s motion
to file supplemental briefing regarding the import, if any, of Johnson and Welch to
his appeal. We also granted leave to the government to submit a supplemental
brief in reply. After considering the parties’ arguments, we will uphold the District
Court’s application of 18 U.S.C. § 924(c)(1)(A)(i) to Parnell.6
Section 924(c) imposes a five-year sentencing enhancement for “any person
who, during and in relation to any crime of violence or drug trafficking crime . . .
for which the person may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime, possesses a firearm.”
Id. The statute defines “crime of violence” to mean any felony that
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.
Id. § 924(c)(3). Parnell claims that his Hobbs Act convictions do not fall within
the meaning of subclause (A) above, and that because subclause (B) is similar to
the residual clause struck down in Johnson, his sentence under § 924(c) must be
overturned. We disagree.
6
To the extent Parnell raises any other issues or arguments in his supplemental
briefing, we decline to reach them.
11
Parnell’s argument overlooks a crucial fact: section 924(c) imposes the
enhancement on those who use a firearm “during and in relation to any crime of
violence or drug trafficking crime.” Id. § 924(c)(1)(A) (emphasis added). Based
on the Official Jury Verdict Form in this case, we know that the jury found that
Parnell carried a gun “during and in relation to” the drug trafficking crimes
charged in the indictment. Thus, we need not (and do not) decide whether a
conviction for Hobbs Act robbery falls within the meaning of the residual clause in
§ 924(c)(3)(B). We also see no need to determine whether this clause is
constitutional in the wake of Johnson because Johnson does not call into question
the statute’s unambiguous definition of “drug trafficking crime.” See id.
§ 924(c)(2).
III.
We will affirm the District Court’s judgment and sentence as to Parnell.
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