United States v. Parker

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0358p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 06-4506
v.
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CLARENCE PARKER, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 04-00140—Thomas M. Rose, District Judge.
Submitted: September 18, 2008
Decided and Filed: October 3, 2008
Before: CLAY and GRIFFIN, Circuit Judges; STAFFORD, District Judge.*
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COUNSEL
ON BRIEF: Salvatore C. Adamo, LAW OFFICE OF SALVATORE C. ADAMO, Phillipsburg,
New Jersey, for Appellant. Anne H. Fehrman, ASSISTANT UNITED STATES ATTORNEY,
Dayton, Ohio, for Appellee.
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OPINION
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STAFFORD, District Judge. The defendant-appellant, Clarence Parker, appeals from the
reduced sentence imposed by the district court on the government’s Rule 35(b) motion to reduce
sentence based on Parker’s substantial assistance. Parker maintains that the district court failed to
take into consideration certain factors that would purportedly warrant an additional downward
departure. We DISMISS the appeal for lack of appellate jurisdiction under 18 U.S.C. § 3742(a).
BACKGROUND
The facts are not in dispute. Briefly, Parker was a member of large-scale powder and crack
cocaine distribution and money laundering organization based in Dayton, Ohio. In 2004, he was
charged with (1) conspiracy to distribute and to possess with the intent to distribute in excess of 150
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The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern District of Florida,
sitting by designation.
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No. 06-4506 United States v. Parker Page 2
kilograms of cocaine, and (2) conspiracy to launder money. Parker pleaded guilty to the two
charges, knowing that the statutory maximum sentence was life imprisonment, the statutory
mandatory minimum sentence was 10 years, and the applicable advisory guidelines range was 135
to 168 months. The district court sentenced Parker to the mandatory minimum sentence of 120
months.
A year after Parker was sentenced, the government filed a motion to reduce Parker’s sentence
pursuant to Rule 35(b). Based on that motion, Parker was re-sentenced to 60 months in prison on
both counts to run concurrently. Parker thereafter filed this timely appeal.
DISCUSSION
Citing 18 U.S.C. § 3742(a), the government contends that Parker’s appeal should be
dismissed for lack of jurisdiction. Section 3742(a) provides that a defendant may appeal an
“otherwise final sentence” if the sentence (1) was imposed in violation of law; (2) was imposed as
a result of an incorrect application of the sentencing guidelines; (3) is greater than the sentence
specified in the applicable guideline range; or (4) was imposed for an offense for which there is no
sentencing guideline and is plainly unreasonable.
In United States v. Moran, 325 F.3d 790 (6th Cir. 2003), this court held that, because a
district court’s ruling on a Rule 35(b) motion falls within the plain meaning of an “otherwise final
sentence,” appeal of such ruling is governed by section 3742(a). Id. at 792. At least eight other
circuit courts have likewise concluded that section 3742(a) governs appellate review of a district
court's reduction of sentence pursuant to Rule 35(b). United States v. McGee, 508 F.3d 442, 445
(7th Cir. 2007); United States v. Haskins, 479 F.3d 955, 957 (8th Cir. 2007); United States v.
McKnight, 448 F.3d 237, 238 (3d Cir. 2006); United States v. McMillan, 106 F.3d 322, 324 n.4 (10th
Cir. 1997); United States v. Doe, 93 F.3d 67, 69 (2d Cir. 1996); United States v. Pridgen, 64 F.3d
147, 149-50 (4th Cir. 1995); United States v. Arishi, 54 F.3d 596, 597-98 (9th Cir. 1995); United
States v. Chavarria-Herrara, 15 F.3d 1033, 1035-36 (11th Cir. 1994). Four of those circuits—the
Third, Seventh, Eighth and Eleventh—have considered the issue since the Supreme Court decided
United States v. Booker, 543 U.S. 220 (2005), concluding (with little discussion) that Booker did not
expand the situations in which a defendant may appeal a sentence under 18 U.S.C. § 3742(a).
McGee, 508 F.3d at 445; Haskins, 479 F.3d at 957; McKnight, 448 F.3d at 238; United States v.
Ross, 280 F. App’x 896, 897 (11th Cir. 2008).
In Booker, having rendered the Sentencing Guidelines advisory only, the Supreme Court
replaced the prior standard of appellate review—articulated in 18 U.S.C. § 3742(e)—with review
for unreasonableness. The Court explained that, while its decision required the excision of section
3742(e) from the Sentencing Reform Act (“Act”), other sections of the Act—namely, sections
3742(a) and (b), providing for sentencing appeals by the defendant and by the government
respectively—“continue[] to provide for appeals from sentencing decisions . . . .” Booker, 543 U.S.
at 260. Because Booker left intact sections 3742(a) and (b), appellate courts have the same
jurisdiction to review sentences post-Booker as they had before Booker was decided.
In this case, Parker contends that the district court’s decision to reduce his sentence to 60
months was unreasonable, the court having purportedly failed to take into consideration Parker’s
peripheral role in the conspiracies, his age, and/or his employment history. Because 18 U.S.C.
§ 3742(a) governs this appeal, and because Parker has not raised any colorable claim that his appeal
falls within the narrow jurisdictional parameters set out in section 3742(a), this court lacks
jurisdiction to review the district court’s judgment reducing Parker’s sentence under Rule 35(b).
Accordingly, we DISMISS Parker’s appeal of his reduced sentence.