United States v. Parker , 289 F. App'x 666 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4353
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL CHARLES PARKER,
Defendant - Appellant.
No. 07-4373
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL CHARLES PARKER,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:06-cr-00384-REP; 3:03-cr-00379-REP)
Submitted: July 16, 2008 Decided: August 26, 2008
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Olivia N.
Hawkins, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Michael C. Parker appeals his conviction and sixty-month
sentence following a jury trial of one count of distribution of
cocaine base, in violation of 21 U.S.C. § 841 (2000) (Appeal No.
07-4353). Based on this conviction, Parker was also found guilty
of violating the terms and conditions of a previously-imposed term
of supervised release and was sentenced to an additional
twenty-four months’ imprisonment (Appeal No. 07-4373), to run
consecutively with his sixty-month sentence on the distribution
charge.* On appeal, Parker argues that the district court erred in
denying his motion for judgment of acquittal because the evidence
was insufficient to sustain the jury’s verdict on the distribution
charge. Parker also argues that the district court erred in
departing upward pursuant to U.S. Sentencing Guidelines Manual §
4A1.3 (2006), on the ground that criminal history category VI
substantially under-represented the seriousness of his criminal
history. For the following reasons, we affirm the district court’s
judgment in each matter.
A defendant challenging the sufficiency of the evidence
faces a “heavy burden.” United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997) (internal quotation marks omitted). “[A]n
appellate court’s reversal of a conviction on grounds of
*
Parker’s challenge to the revocation of his supervised
release is subsumed in his challenge to his § 841 conviction.
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insufficient evidence should be confined to cases where the
prosecution’s failure is clear.” United States v. Jones, 735 F.2d
785, 791 (4th Cir. 1984) (internal quotation marks omitted). A
jury’s verdict must be upheld on appeal if there is substantial
evidence in the record to support it. Glasser v. United States,
315 U.S. 60, 80 (1942). In determining whether the evidence in the
record is substantial, we view the evidence in the light most
favorable to the government, and inquire whether there is evidence
that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of the defendant’s guilt beyond
a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (en banc). We do not review the credibility of the
witnesses, and we assume that the jury resolved all contradictions
in the testimony in favor of the government. United States v.
Romer, 148 F.3d 359, 364 (4th Cir. 1998).
The elements of Parker’s offense of conviction are:
(1) knowing or intentional distribution of the controlled substance
stated in the indictment, and (2) knowledge, at the time of
distribution, that the substance distributed was a controlled
substance. United States v. Brower, 336 F.3d 274, 276 (4th Cir.
2003). To distribute a controlled substance means to deliver it;
delivery, in turn, is “the actual, constructive, or attempted
transfer of a controlled substance.” United States v. Washington,
41 F.3d 917, 919 (4th Cir. 1994) (internal quotations and citation
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information omitted). Our review of the record confirms that the
evidence presented to the jury was sufficient to prove that Parker
knowingly distributed cocaine base. For this reason, his
conviction and the revocation of his supervised release are
affirmed.
Next, Parker appeals his sentence. After United
States v. Booker, 543 U.S. 220 (2005), a district court is no
longer bound by the range prescribed by the sentencing guidelines.
Instead, in choosing a sentence, a district court must (1) properly
calculate the advisory guideline range; (2) allow the parties to
argue for an appropriate sentence; (3) consider the § 3553(a)
factors in light of the parties’ arguments and make an
individualized assessment based on the facts; and (4) adequately
explain its reasons for choosing the sentence (the explanation must
include the justifications for any variance from the guidelines).
See Gall v. United States, 128 S. Ct. 586, 596-97 (2007); United
States v. Evans, 526 F.3d 155, 160-61 (4th Cir. 2008). We review
a district court’s choice of sentence for abuse of discretion.
Gall, 128 S. Ct. at 597.
The district court correctly calculated the advisory
guidelines range and heard arguments from the parties. The court
determined that the advisory guidelines range did not satisfy the
§ 3553(a) factors because of the “serious” and “unrelenting nature”
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of Parker’s criminal history and his admission that he would
continue to violate the law. J.A. 441.
Relying on USSG § 4A1.3, the district court then imposed
a sentence of sixty months, twenty-three months above the top of
the pre-departure advisory range. According to USSG § 4A1.3, a
district court may depart upward from an applicable guidelines
range if “reliable information indicates that the criminal history
category does not adequately reflect the seriousness of the
defendant’s past criminal conduct or the likelihood that the
defendant will commit other crimes.” USSG § 4A1.3. In deciding
whether a departure is warranted under § 4A1.3, a sentencing court
may consider uncounted prior sentences and prior similar adult
conduct not resulting in criminal conviction. USSG
§ 4A1.3(a)(2)(A), (E).
Considering Parker’s history of recidivism, much of which
occurred while he was on supervised release, the nature of his
criminal conduct, and his history of lenient punishments and
rejection of rehabilitation, we conclude that the district court
acted reasonably in departing upward. Moreover, the court departed
above category VI by following the “incremental approach” mandated
by § 4A1.3(a)(4)(B). The district court explicitly determined that
each intervening level was insufficient, and then moved down the
sentencing table to the next higher offense level until it reached
a Level 17, which it felt was appropriate. The district court thus
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adequately articulated its reasons for departing from the
guidelines range. We accordingly conclude that the sentence
imposed upon the § 841 conviction was not an abuse of discretion.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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