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United States v. Derrick Parker ( 2019 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 18-2787
    ___________________________
    United States of America
    Plaintiff - Appellee
    v.
    Derrick Lovell Parker, also known as Darrell Parker
    Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Eastern District of Arkansas - Little Rock
    ____________
    Submitted: June 10, 2019
    Filed: August 14, 2019
    [Unpublished]
    ____________
    Before GRUENDER, ARNOLD, and STRAS, Circuit Judges.
    ____________
    PER CURIAM.
    Derrick Parker received an above-Guidelines-range sentence of 24 months in
    prison for violating the conditions of supervised release. On appeal, he argues that,
    at sentencing, the district court 1 considered an improper factor and failed to
    adequately explain why it varied upward. Because neither argument entitles him to
    relief, we affirm.
    After serving nearly ten years in prison for drug and firearm offenses, Parker
    began a three-year term of supervised release. Parker then committed a host of drug-
    related violations, which led to revocation, an additional prison term, and a new
    period of supervised release. His second time on release did not go better, as he
    failed to submit urine samples, tested positive for cocaine, used synthetic marijuana,
    and skipped required mental-health and substance-abuse treatment.
    These new violations led to a second revocation. “Due to [Parker’s] consistent
    noncompliant behavior . . . [and lack of] respect for the law,” the court declined to
    impose a third term of supervised release and instead sentenced him to 24 months in
    prison, well above his advisory Guidelines range.
    Parker argues for the first time on appeal that the district court erred by
    considering his lack of respect for the law because this factor appears only in the
    general sentencing statute, 18 U.S.C. § 3553(a)(2)(A), not in the one specifically
    governing revocation proceedings, 
    id. § 3583(e).
    United States v. Dang, 
    907 F.3d 561
    , 566 (8th Cir. 2018) (reviewing an identical argument for plain error because it
    was never raised below). We conclude that the court did not plainly err when it
    relied on this factor. See United States v. Hall, No. 17-3663, 
    2019 WL 3330464
    , at
    *2 n.3 (8th Cir. July 25, 2019).
    As in Hall, the district court used a “permissible factor[]” and an
    impermissible one. 
    Id. at *3.
    The permissible factor was the analysis of Parker’s
    “history and characteristics,” including his “consistent noncompliant behavior” and
    1
    The Honorable James M. Moody, Jr., United States District Judge for the
    Eastern District of Arkansas.
    -2-
    failure to take advantage of “multiple opportunities to change his” ways. See 18
    U.S.C. §§ 3553(a)(1), 3583(e) (directing courts to consider “the history and
    characteristics of the defendant”). The impermissible factor, lack of respect for the
    law, was at most an “additional reason[] supporting [the] sentence,” so any error
    could not have been plain under Hall. See Hall, 
    2019 WL 3330464
    , at *3.
    The district court also adequately explained the upward variance. Parker
    deserved a longer sentence, it said, because he had repeatedly failed to comply with
    his supervised-release conditions. And although Parker complains that the court did
    not specifically identify the statutory factors upon which it relied, it did not have to
    as “long as the record indicates [it] properly considered the[m].” United States v.
    Munjack, 
    669 F.3d 906
    , 907 (8th Cir. 2012). Here, the record shows that it did.
    We accordingly affirm the judgment of the district court.
    ______________________________
    -3-
    

Document Info

Docket Number: 18-2787

Filed Date: 8/14/2019

Precedential Status: Non-Precedential

Modified Date: 8/14/2019