United States v. Rushaun Parker ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4030
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUSHAUN NECKO PARKER, a/k/a Duke, a/k/a Rushuan Nekoe
Parker, a/k/a Rushuan Nikoe Parker,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:10-cr-00011-H-1)
Submitted: January 14, 2014 Decided: February 11, 2014
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rushaun Necko Parker appeals the 384-month sentence
imposed by the district court after his initial sentence was
vacated pursuant to United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc). In our prior opinion, we granted the
Government’s motion to remand for resentencing, reversed
Parker’s conviction under 18 U.S.C. § 922(g) (2012), affirmed
his other convictions, vacated the sentence, and remanded to the
district court. United States v. Parker, 465 F. App’x 283 (4th
Cir. 2012) (No. 11-4647).
On remand, the probation officer issued a memorandum
to the district court that described the changes to Parker’s
Guidelines range as a result of Simmons and this court’s remand.
Parker’s offense level was unaffected because it was calculated
based on drug quantity, but his criminal history category was
lowered to IV from VI because he was no longer a career
offender. The sentencing range for Counts One, Two, and Four,
based on a total offense level of thirty-eight and criminal
history category IV, was 324 to 405 months of imprisonment. The
probation officer also noted the revised statutory imprisonment
ranges effected by the FSA, which capped the sentence for Counts
One, Two, and Five at 480 months and for Count Three at 240
months. Count Six required a consecutive sixty-month term of
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imprisonment, and Count Seven carried a statutory maximum of 240
months. (J.A. 117-18).
At the resentencing hearing, the district court stated
the revised sentencing ranges and other changes to the
sentencing parameters that occurred since Parker’s first
sentencing. The court briefly summarized the facts of the case
and stated that it was considering a sentence at the lower end
of the revised Guidelines range. When the court solicited
argument from counsel as to an appropriate sentence, Parker’s
counsel stated that Parker desired a continuance. The district
court denied the request. Counsel then summarily restated his
objections from the initial sentencing hearing, and the district
court noted the objections for the record. The court heard
argument from the parties and allocution from Parker, and
sentenced Parker to a total of 384 months of imprisonment.
On appeal, Parker argues that the district court
improperly calculated the Guidelines sentencing range, erred in
denying his motion for a continuance of the resentencing
hearing, erred in refusing to review and consider the objections
to the original presentence investigation report at the
resentencing hearing, and that the written judgment is
erroneous.
This court reviews a sentence for procedural and
substantive reasonableness under an abuse of discretion
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standard. Gall v. United States, 552 U.S. 38, 51 (2007). In
evaluating procedural reasonableness, we consider whether the
district court properly calculated the defendant’s advisory
Guidelines range, gave the parties an opportunity to argue for
an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, selected a sentence supported by the record, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
49-51. If the sentence is free of procedural error, we review
it for substantive reasonableness, taking into account the
totality of the circumstances. Id. at 51. We presume that a
sentence within a properly calculated Guidelines range is
substantively reasonable. United States v. Susi, 674 F.3d 278,
289 (4th Cir. 2012).
In his first argument, Parker asserts that, as a
result of the Fair Sentencing Act of 2010 (FSA), his Guidelines
calculations should have changed, resulting in a lower total
offense level. This argument is meritless. The record reveals
that, in the original presentence investigation report, the
probation officer applied the 2010 edition of the Sentencing
Guidelines, as amended by the emergency amendments promulgated
pursuant to the FSA, which were effective November 1, 2010.
These amendments increased the quantities of crack cocaine
required for drug quantity based offense levels in U.S.
Sentencing Guidelines Manual § 2D1.1(c) (2010). Although the
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revised statutory punishments effected by the FSA were not
applied at Parker’s initial sentencing, the Guidelines revisions
were clearly applied. Thus, there was no change to his
Guidelines calculations at resentencing, except for the reduced
criminal history category and the reduced statutory caps on
imprisonment, which exceeded the sentencing ranges under the
Guidelines.
Parker also argues that the court erred in failing to
reconsider his objections to the initial PSR at the resentencing
hearing. Other than restating his objections, counsel did not
request any further discussion or ruling by the court. Thus,
Parker’s claim is reviewed only for plain error. To establish
plain error, Parker must show: “(1) there is an error, (2) the
error is plain, . . . (3) the error affects substantial rights
. . . [and] the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Henderson v.
United States, 133 S. Ct. 1121, 1126 (2013) (internal quotation
marks and alterations omitted). Generally, for an error to
affect a defendant’s substantial rights, it “must be
prejudicial, which means that there must be a reasonable
probability that the error affected the outcome . . . .” United
States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation
marks omitted).
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This court has recognized that, when it vacates a
sentence, the district court on remand is not bound by its
original sentencing determinations and may, but is not required
to, reconsider those findings. Susi, 674 F.3d at 284. We
conclude that the district court did not err in failing to sua
sponte reconsider Parker’s objections that were resolved at the
initial sentencing hearing. Parker cites no authority for his
argument that the court should have reconsidered its objections,
and does not assert any specific objections that the court
should have reconsidered, or assert any error in the court’s
resolution of those objections at the initial sentencing
hearing. Finally, Parker’s only assertion of prejudice is a
general statement that the court’s failure to specifically rule
on objections that did not affect the sentencing range might
prejudice Parker in the future. We conclude that the court did
not err in determining Parker’s sentencing range.
Parker next argues that the district court erred in
denying his motion to continue the resentencing hearing. We
review this claim for an abuse of discretion, which occurs when
the denial of a continuance “is an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable
request for delay. Even if such an abuse of discretion is
found, the defendant must show that the error specifically
prejudiced his case in order to prevail.” United States v.
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Copeland, 707 F.3d 522, 531 (4th Cir.) (internal quotation
marks, citations, and alterations omitted), cert. denied, 134 S.
Ct. 126 (2013). We find no abuse of discretion. Parker did not
move for a continuance until the resentencing hearing was
underway. The only reason stated for requesting a continuance
was to provide additional time to work on a defense. Parker was
previously convicted by a jury, so there was no defense
available. To the extent Parker wished for additional time to
prepare for sentencing, neither he nor counsel stated any
specific preparation for which additional time was required.
Moreover, as the district court noted, the issues to be
considered at resentencing were straightforward. Parker failed
to state a justifiable request for delay, and fails on appeal to
demonstrate that the denial of a continuance prejudiced him in
any way.
Finally, Parker argues that the written judgment
contains errors in that it states that, as to Counts One through
Four, he was found guilty of a violation of 21 U.S.C. § 851
(2012) in addition to 21 U.S.C. §§ 841(a)(1) and 846 (2012). He
also asserts that the judgment erroneously states that the
offenses in Counts Two and Three ended on January 27, 2010,
rather than the dates specified in the indictment, November 9,
2009, and December 1, 2009, respectively. The Government does
not dispute the existence of these clerical errors, which the
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district court may correct under Federal Rule of Criminal
Procedure 36.
Accordingly, we affirm Parker’s sentence, but remand
to the district court for the limited purpose of correcting the
clerical errors specified above. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED AND REMANDED
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