United States v. Parks

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0926n.06
Filed: November 21, 2005
No. 05-5159
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. On Appeal from the United
States District Court for the Eastern
SELENA PARKS, District of Tennessee
Defendant-Appellant.
/
BEFORE: RYAN, GILMAN, and COOK, Circuit Judges.
RYAN, Circuit Judge. The defendant, Selena Parks, appeals her sentence of
12 months’ imprisonment for conspiracy to commit money laundering in violation of 18
U.S.C. § 1956(h). She argues that the district court abused its discretion in determining her
sentence by explicitly observing that Parks could have been charged with a more serious
offense. We reject Parks’s argument and AFFIRM the district court’s sentence.
I.
On October 14, 2004, Parks pleaded guilty to conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(h). In her written plea agreement, she stipulated
that, at the time of her arrest on August 22, 2003, she and a codefendant were driving a
rental car from Knoxville, Tennessee, to Atlanta, Georgia, and they were transporting
$29,647 in cash derived from drug trafficking. They planned to use the money to purchase
one kilogram of cocaine from another codefendant after they arrived in Atlanta. At the
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sentencing hearing, the district court and the parties acknowledged that the Sentencing
Guidelines were merely advisory and that the applicable Guidelines range was 21 to 27
months. The government recommended a 23.8% downward departure from the lowest end
of the Guidelines range, or a sentence of 16 months’ imprisonment. Nevertheless, Parks
requested probation. The court denied the request and observed that, while Parks was an
intelligent, hardworking woman with two children, she could have been charged with a more
serious drug conspiracy offense. The district court then imposed a sentence of 12 months’
imprisonment and explained to Parks that a prison sentence was necessary to punish her
and to give her an opportunity to rehabilitate herself under proper guidance. The court then
asked whether either party had any objections to the sentence that had not been raised
previously, and Parks’s counsel stated that she did not.
II.
Parks now argues that the district court abused its discretion by imposing a sentence
which took into account that she could have been facing a charge for a drug conspiracy
offense. She claims there is no support in the record for the district court’s belief that she
was guilty of conduct warranting a drug conspiracy charge.
We review Parks’s sentence for plain error because she did not raise an objection
to the sentence after the district court gave her an opportunity to do so. Fed. R. Crim. P.
52(b); United States v. Johnson, 403 F.3d 813, 815 (6th Cir. 2005). “‘A “plain error” is an
error that is clear or obvious, and if it affects substantial rights, it may be noticed by an
appellate court.’” United States v. Bostic, 371 F.3d 865, 873 (6th Cir. 2004) (quoting United
States v. Barajas-Nunez, 91 F.3d 826, 830 (6th Cir. 1996)).
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III.
In determining an appropriate sentence, a judge may “conduct an inquiry broad in
scope, largely unlimited either as to the kind of information he may consider, or the source
from which it may come.” United States v. Tucker, 404 U.S. 443, 446 (1972). But
sentences based upon material misinformation may violate the Due Process Clause.
United States v. Silverman, 976 F.2d 1502, 1512 (6th Cir. 1992). To successfully challenge
information considered by the sentencing judge, the defendant must establish that the
information is materially false or unreliable, and that it actually served as the basis for the
sentence. United States v. Robinson, 898 F.2d 1111, 1116 (6th Cir. 1990).
The district court committed no error, plain or otherwise, in sentencing Parks. The
court did not rely on false information or speculation when it determined Parks’s sentence.
It merely relied on the facts in the record and accurate information it learned while presiding
over the trials of Parks’s codefendants. The record clearly supports the fact that Parks
could have been charged with a drug conspiracy offense because in her stipulation she
admitted that she knew of a conspiracy to violate the drug laws and voluntarily joined in the
conspiracy. See United States v. Price, 258 F.3d 539, 544 (6th Cir. 2001).
Even if the district court had not considered that Parks could have been charged with
a greater offense, her sentence is fully justified by the other factors the court properly took
into account. Parks’s 12 months’ imprisonment sentence was below the Guidelines range,
and the court explained that, after considering all the mitigating factors, it determined that
a one-year prison sentence was necessary to provide Parks with adequate punishment and
rehabilitation.
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IV.
We conclude that Parks’s sentencing proceedings were error free and that the
sentence imposed was reasonable. For these reasons, we AFFIRM the sentence imposed
by the district court.