United States v. Parker ( 2003 )


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  •                                                                                                                            Opinions of the United
    2003 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    1-15-2003
    USA v. Parker
    Precedential or Non-Precedential: Non-Precedential
    Docket 02-1227
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    Recommended Citation
    "USA v. Parker" (2003). 2003 Decisions. Paper 879.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2003/879
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 02-1227
    UNITED STATES OF AMERICA
    v.
    NATHANIEL PARKER
    Nathaniel Parker, Sr.,
    Appellant
    Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Criminal No. 00-cr-00315)
    District Court Judge: Honorable Bruce W. Kauffman
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    December 20, 2002
    Before: NYGAARD, ALITO and RENDELL, Circuit Judges
    (Filed: January 15, 2003)
    OPINION OF THE COURT
    RENDELL, Circuit Judge.
    Nathaniel Parker appeals his conviction and sentence for twelve counts of
    possession with intent to distribute cocaine and marijuana. Parker raises three issues under
    Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), and also claims that the government
    encouraged false testimony and violated Brady v. Maryland, 
    373 U.S. 83
     (1963), by failing
    to inform him of dealings it had with the government informant who testified at trial. We
    will affirm.
    The District Court had jurisdiction under 
    18 U.S.C. §3231
     (2001), and we exercise
    jurisdiction pursuant to 
    28 U.S.C. §1291
     (2002). We exercise plenary review over
    questions of law, including the District Court’s interpretation of Apprendi. United States v.
    Barbosa, 
    271 F.3d 438
    , 452 (3d Cir. 2001). Because Parker did not raise the government
    misconduct arguments at trial, we review his Brady and false testimony challenges for plain
    error. United States v. Olano, 
    507 U.S. 725
    , 731-32 (1993). Plain error requires an error,
    that is plain, and that substantially affects Parker’s substantial rights. 
    Id.
    In February 2000, Parker sold cocaine to Andrew Scott, a government informant, in
    a videotaped undercover operation. Parker was indicted in a superseding indictment for
    violations of 
    21 U.S.C. § 841
    (a)(1)(2000) (possession with intent to deliver) and 
    21 U.S.C. § 860
    (a) (distribution of drugs within 1,000 feet of a school). The indictment provided
    notice of a prior conviction. In December 2000, a jury found Parker guilty on twelve
    counts, made specific findings concerning the quantity and type of drugs involved, and
    found that Parker had two prior felony convictions involving crimes of violence or drugs.
    These prior convictions qualified Parker as a career offender under U.S.S.G. § 4B1.1
    (2000).
    Parker’s Presentence Investigation Report (“PSR”) indicates that the drug quantities
    involved in his offenses resulted in a base offense level of 30. USSG § 2D1.1c)(5)
    2
    (2000). The probation officer then added a two-level enhancement because the criminal
    activity was near a protected location. USSG § 2D1.2(a)(1) (2000). Finally, the probation
    officer added a four-level enhancement because Parker was a career offender. Parker’s
    offense level as recommended by the PSR was 37, with a criminal history category VI,
    which carries a guideline range of 360 months to life. Parker sought numerous downward
    departures. After a hearing, the District Court rejected most of Parker’s claims but found
    that the career offender status significantly overrepresented his criminal history. The
    Court granted a downward departure of two criminal history categories and five offense
    levels, resulting in a guideline range of 168-210 months. Parker was sentenced to 180
    months on all counts, to be served concurrently.
    Parker poses three challenges to his sentence under Apprendi: that he was found to
    be a career offender without having each of his prior convictions listed in the indictment
    and submitted to a jury, that enhancements used to increase his sentence were not proven
    beyond a reasonable doubt, and that section 841 is unconstitutional. Parker’s first two
    Apprendi arguments fail because he was sentenced to 180 months, a sentence well within
    the statutory maximum of life imprisonment.1 A sentencing judge “may impose the
    1
    Because we decide that Parker’s first two Apprendi challenges fail on the grounds
    that his sentence fell within the statutory maximum, it is unnecessary for us to address his
    argument that his prior convictions ought to have been included in the indictment and
    submitted to the jury. We note, however, that the government filed an information to
    establish prior convictions, Docket No. 48, and that the District Court appears to have
    submitted the question of prior convictions to the jury. Furthermore, although Parker
    questions the continuing validity of the Supreme Court’s decision in Almendarez-Torres v.
    United States, 
    523 U.S. 224
    , 228-35 (1998), in which the Court held that prior commission
    3
    minimum, the maximum, or any other sentence within the range without seeking further
    authorization from [the jury] – and without contradicting Apprendi.” Harris v. United
    States, 
    122 S. Ct. 2406
    , 2418 (2002). Parker’s constitutionality argument also fails
    because we have already squarely rejected the contention that section 841 is
    unconstitutional in light of Apprendi. United States v. Kelly, 
    272 F.3d 622
    , 624 (3d Cir.
    2001).
    Parker’s claims of government misconduct also fail. Parker alleges that Scott’s
    testimony identifying Parker as the drug supplier should have been excluded because the
    government “knew it was a lie.” However, Parker’s allegations are mere conjectures based
    on Scott’s attempt at trial to recant his prior statements identifying Parker as the drug
    supplier. And, Scott’s recantation as to Parker’s role is plainly contradicted by the police
    surveillance tape. Further, in the end, Scott admitted that Parker was the supplier. Scott
    waivered because he was afraid that Parker would know he was the one who set him up, not
    because the government told him to lie. One could conclude that any lies Scott told were
    his own.
    of a crime is a sentencing factor that need not be alleged in an indictment, whatever its
    eventual fate, Almendarez-Torres remains binding precedent and forecloses this challenge.
    Acknowledging the dicta in Apprendi contemplating an eventual reversal of Almendarez-
    Torres does not permit this court to treat that reversal as a fait accompli. See, e.g., United
    States v. Martinez-Villalva, 
    232 F.3d 1329
    , 1332 (10th Cir. 2000) (holding that because
    “the Apprendi Court specifically declined to revisit or overrule Almendarez-Torres . . . [w]e
    are bound by that case to hold that the fact of defendant’s prior felony conviction is not an
    element of the offense with which he [need be] charged by indictment, but is, instead, a
    sentencing factor”).
    4
    Parker also alleges that the government failed to disclose the full extent of any
    benefits the government had promised Scott in return for testifying. This allegation is
    based on nothing more than Parker’s belief that Scott “must have had some deal on the
    table.” At trial, the government provided detailed information on financial benefits that
    Scott received. Furthermore, Parker was given a full opportunity to cross-examine Scott
    on this matter. We find no Brady violation nor any prejudice.
    For the foregoing reasons, we will affirm the judgment of the District Court.
    _________________________
    5
    TO THE CLERK OF COURT:
    Please file the foregoing opinion.
    /s/ Marjorie O. Rendell
    Circuit Judge