United States v. Parker

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
DARNELL PARKER, )
)
Petitioner, )
)
v. )
) Crim. Action No. 12-59 (EGS)
)
UNITED STATES OF AMERICA )
)
Respondent. )
)

MEMORANDUM OPINON

Defendant Darnell Parker (“Mr. Parker”) is serving a 19-year

sentence on drug and money laundering charges at the Federal

Correctional Insitute in Allenwood, Pennsylvania. Pet.’s Mot.

Vacate, ECF No. 530. In May 2014, Mr. Parker filed a

motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or

correct his sentence. Id. Mr. Parker claims that he received

ineffective assistance of counsel from his pre-plea attorney,

Kira West (“Attorney West”), and his subsequent attorney, Marvin

Miller (“Attorney Miller”). Pet.’s Mem. Supp. Mot. Vacate

(“Pet.’s Mem. Supp.”), ECF No. 530 at 15-21. Mr. Parker also

argues that the court erred by failing to consider the 18 U.S.C.

§ 3553(a) factors during Mr. Parker’s sentencing. Pet.’s First

Suppl. Mem., ECF No. 545 at 4-5. For the reasons discussed

below, and upon consideration of Mr. Parker’s motion,

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supplements, the government's opposition, and Mr. Parker’s

reply, Petitioner’s § 2255 motion is DENIED WITH PREJUDICE.

I. Background

On May 8, 2012, Mr. Parker was charged in a superseding

indictment with two counts related to an alleged conspiracy to

possess and distribute cocaine and five counts related to money

laundering. Indictment, ECF No. 123. 1 On December 20, 2012, the

government filed a superseding information charging Mr. Parker

with one count of conspiracy to distribute and possession with

intent to distribute five kilograms or more of cocaine in

violation 21 U.S.C. § 846 and one count of laundering of

monetary instruments in violations of 18 U.S.C. §

1956(a)(1)(B)(i). Superseding Information, ECF No. 253. On

December 21, 2012 Mr. Parker pled guilty to both counts of the

superseding information. Plea offer, ECF No. 258; Plea Hearing

Tr., Resp’t Opp’n Mem. Def.’s Mot. (“Resp’t Opp’n Mem.”), Ex. F.

Mr. Parker was sentenced on May 9, 2013. Id., Ex. J. Because

Mr. Parker was previously convicted on two felony drug charges

1 Specifically, the counts alleged against Mr. Parker were: (1)
one count of conspiracy with intent to distribute and possession
with intent to distribute five kilograms or more of cocaine and
280 grams or more of cocaine base, in violation of 21 U.S.C §
846; (2) one count of unlawful possession with intent to
distribute five kilograms or more of cocaine in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(ii); and (3) five counts of
laundering of monetary instruments in violations of § 18 U.S.C.
§ 1956(a)(1)(B)(i).

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(California Case No. GA04608401 and Maryland Case No.

21K03031669), he is classified as a career offender under the

U.S. Sentencing Guidelines (“Sentencing Guidelines”).

Presentence Investigation Report, ECF No. 345 at 16. In his plea

agreement, Mr. Parker acknowledged his status as a career

offender and that he would face heighted penalties under the

Sentencing Guidelines. Plea Agreement Letter, ECF No. 258 at 1-

3. Mr. Parker also agreed to the forfeiture of certain property

derived from the proceeds of the offenses charged in the written

plea agreement he signed. Plea Agreement, ECF No. 258 at 5.

Specifically, Mr. Parker forfeited a collection of shoes,

purses, and a fur coat. Id. Am. Final Order of Forfeiture, ECF

No. 490.

On March 25, 2013 Mr. Parker filed a motion to reduce his

criminal history score from VI to V. Pet.’s Sent. Mem., ECF No.

357. The government did not oppose the motion and on May 9,

2013, the Court lowered Mr. Parker’s criminal history score to

V, reducing Mr. Parker’s sentencing range from 262 months to 327

months to 235 to 293 months. Sent. Tr., ECF No. 552, Ex. H at

14; Presentence Investigation Report. Mr. Parker was sentenced

to 235 months of imprisonment followed by 60 months of

supervised release. Judgment, ECF No. 412.

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 II. Standard of Review

Under 28 U.S.C. § 2255, a prisoner may move to vacate, set

aside, or correct a sentence imposed “in violation of the

Constitution or laws of the United States,” or any sentence that

“the court was without jurisdiction to impose,” or that is “in

excess of the maximum authorized by law,” or is “otherwise

subject to collateral attack.” 28 U.S.C. § 2255. The defendant

must prove his allegations by a preponderance of the evidence,

however a challenge under § 2255 “requires the defendant to show

a ‘good deal more than would be sufficient on a direct appeal

from his sentence.’” United States v. Lancaster, No. CIV 05-838

(EGS), 2007 WL 779039, at 1 (D.D.C. Mar. 7, 2007) (citing United

States v. Pollard, 959 F.2d 1011, 1120 (D.C. Cir. 1992)). “A §

2255 motion may be denied when it ‘offers only bald legal

conclusions with no supporting factual allegations.’” Aljaff v.

United States, 987 F. Supp. 2d 64, 66 (D.D.C. 2013) (quoting

Mitchell v. United States, 841 F. Supp. 2d 322, 328 (D.D.C.

2012)).

III. Discussion

Mr. Parker makes three arguments in support of his § 2255

Motion. First, Mr. Parker argues that Attorney West provided

ineffective assistance of counsel because she failed to

investigate how various shoes, purses, and a fur coat forfeited

by Mr. Parker were procured. Pet.’s Mem. Supp. at 18. Next Mr.

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Parker alleges that his subsequent counsel, Attorney Miller, was

ineffective for failing to challenge his prior Maryland

conviction, the purported miscalculation of his criminal history

points, and his status as a career offender. Id. at 19. Finally,

Mr. Parker argues that the Court erred by not considering the 18

U.S.C. § 3553(a) factors during his sentencing. Pet.’s First

Suppl. Mem. at 4-5. Each of Mr. Parker’s arguments shall be

addressed in turn. 2

A. Attorney West’s representation of Mr. Parker was not
ineffective because it was not objectively
unreasonable

Mr. Parker alleges Attorney West rendered ineffective

assistance causing him to suffer undue prejudice. Pet.’s Mem.

Supp. at 18. Specifically, Mr. Parker alleges that “[h]ad

attorney West only conducted the minimal investigation, she

could of proven that Defendant’s collection of shoes, his wife’s

purses, and personal belongings were not purchased from any

proceeds derived from his charge of conviction.” Id. The

government argues that Mr. Parker’s claims against Attorney West

2 Mr. Parker requested an evidentiary hearing on his motion,
however, an evidentiary hearing on a § 2255 motion need not be
granted when “the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.”
Mitchell v. United States, 841 F. Supp. 2d 322, 327 (D.D.C.
2012) (noting that district courts are uniquely situated to
determine whether a hearing should be granted based on the
record).

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are both vague and conclusory. Resp’t Opp’n Mem. at 7-8.

Regardless, the government notes that Mr. Parker repeatedly

consented to the forfeiture of his belongings while he was

represented by Attorney West and Attorney Miller. Id. at 8-10.

“To succeed on an ineffective assistance of counsel claim,

Defendant must show both that his counsel’s performance was

deficient, falling below an objective standard of

reasonableness, and that counsel’s deficient performance

prejudiced Defendant’s defense.” Mitchell v. United States, 841

F. Supp. 2d at 326 (citing Strickland v. Washington, 466 U.S.

668 (1984)). If a Defendant cannot meet either prong, a court

need not address the other. Id. As explained by the Supreme

Court:

In any ineffectiveness case, a particular decision not
to investigate must be directly assessed for
reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments. The
reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own
statements or actions. Counsel’s actions are usually
based, quite properly, on informed strategic choices
made by the defendant and on information supplied by the
defendant . . . and when a defendant has given counsel
reason to believe that pursuing certain investigations
would be fruitless or even harmful, counsel’s failure to
pursue those investigations may not later be challenged
as unreasonable.

Strickland, 466 U.S. at 691. The strong presumption that an

attorney’s assistance was adequate cannot be overcome by “vague

or conclusory” allegations. Aljaff, 987 F. Supp. 2d at 67

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(citing United States v. Turner, 818 F. Supp. 2d 207, 211

(D.D.C. 2011) (quotation marks omitted)).

Here, Mr. Parker does not identify what Attorney West would

have uncovered or how she could have contested the forfeiture.

All that Mr. Parker alleges is that if Attorney West had

investigated the matter, she could have proven that his personal

belongings were not obtained through illicit means. Pet.’s Mem.

Supp. at 18. Because Mr. Parker fails to allege specific factual

information about how these items were procured, Mr. Parker’s

claims against Attorney West must be dismissed as conclusory.

See, e.g., United States v. Gwyn, 481 F.3d 849, 855 (D.C. Cir.

2007) (denying defendant’s ineffective assistance of counsel

claims and holding that the defendant must “show to the extent

possible precisely what information would have been discovered

through further investigation.”).

Moreover, Mr. Parker repeatedly agreed to the forfeiture of

his personal belongings. In a statement signed October 10, 2012,

Mr. Parker informed Attorney West that he was agreeing to

forfeit his personal belongings. Resp’t Opp’n Mem. at 8; see

also Ex. L. Further, when Attorney Miller served as his counsel,

Mr. Parker signed his plea agreement which included the

forfeiture of “miscellaneous shoes and purses, and a fur coat.”

Plea Agreement, ECF No. 258 at 5. Mr. Parker also agreed that

“the proffer of evidence supporting his guilty plea was

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sufficient evidence to support this forfeiture.” Id. Mr. Parker

swore under oath that he understood the agreement at the plea

hearing. Id.; Plea Agreement Hr. Tr., ECF No. 552, Ex. F at 4,9.

Because Mr. Parker repeatedly agreed to the forfeiture of

the contested shoes, purses, and fur coat, and because he

continued to agree to their forfeiture even after his

representation by Attorney West ended, Attorney West was not

deficient for failing to investigate the source of the funds

used to purchase these items. Because Attorney West’s

performance was not deficient, the Court need not address

whether Mr. Parker suffered prejudice.

B. Attorney Miller’s representation of Mr. Parker was not
ineffective because it was not objectively
unreasonable

Mr. Parker also alleges that his sentencing counsel,

Attorney Miller, rendered ineffective assistance of counsel.

Specifically, Mr. Parker claims that “attorney Miller failed to

raise or challenge the miscalculation of Defendant’s criminal

history points” and failed to challenge his previous Maryland

conviction. Pet.’s Mem. Supp. at 19-20. The government argues

that Mr. Parker was correctly sentenced as a career offender

under the Sentencing Guidelines. Resp’t Opp’n to Supp. at 3.

Mr. Parker argues that his criminal history points were

miscalculated because his Maryland felony conviction would not

be a felony under the Controlled Substances Act. Pet.’s Second

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Suppl. Mem., ECF No. 553 at 4. Mr. Parker’s argument fails. A

career offender is a “defendant [that] has at last two prior

felony convictions of either a crime of violence or a controlled

substance offense.” U.S.S.G. 2011 § 4B1.1(a)(3). A controlled

substance offense is “an offense under federal or state law,

punishable by imprisonment for a term exceeding one year . . .”

2010 §4B1.2(b). Mr. Parker had two prior felony drug

convictions, one in Maryland and one in California. Resp’t Mem.

Opp’n, Ex. C at 5-6. Contrary to Mr. Parker’s argument, his

prior conviction need not be a felony under the Controlled

Substances Act. Instead, either a state or federal felony

conviction can serve as the predicate drug offense necessary to

receive an enhanced sentence. See e.g., United States v.

Draffin, 286 F.3d 606, 608 (D.C. Cir. 2002) (“Section 4B1.1

enhances the sentence of a career offender, that is, a defendant

whose offense of conviction is at least his third adult felony

conviction of a crime of violence and/or a controlled substance

offense.”).

Mr. Parker cites Carachuri-Rosendo v. Holder and United

States v. Simmons in support of his argument. 560 U.S. 563

(2010); 649 F.3d 237 (4th Cir. 2011). Both cases are

distinguishable. In Carachuri, the defendant could have been

prosecuted (and would have faced an enhanced sentence) for

recidivist drug possession under federal law, but he was

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prosecuted in state court and charged with a misdemeanor. Id. at

576. The government nevertheless argued that Carachuri’s

conviction met the criteria as a career offender under the

sentencing guidelines because “hypothetically” the defendant

could have been charged with a felony had he been prosecuted in

federal court. Id. at 570. The Supreme Court rejected this

“hypothetical” argument and affirmed that the defendant must

have actually been convicted of a felony to receive an enhanced

sentence. Id. at 576-577.

Pursuant to the guidance of Carachuri, the Court of Appeals

for the Fourth Circuit in Simmons held that a non-felony

conviction under state law could not serve as a predicate drug

conviction necessary for an enhanced sentence. 649 F.3d at 249-

250. In 1996 Defendant Simmons was convicted in North Carolina

state court on drug conspiracy charges. Id. at 239. Although

Simmons’ offense was classified as a Class I felony under North

Carolina law, it was not punishable by more than twelve months

because the state failed to prove aggravating factors or that

Simmons’ had a prior record level of at least five. Id. at 241

(noting that because neither of the two conditions were

satisfied, “the state judge did not sentence Simmons to a single

day of imprisonment, instead imposing only six-to-eight months’

community service.”). Nevertheless, the federal government later

sought to use Simmons’ 1996 state conviction as a predicate to

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impose an enhanced sentence under the Controlled Substances Act.

Id. The Fourth Circuit rejected the government’s argument. Id.

(“As in Carachuri, the ‘mere possibility that [Simmons’s]

conduct, coupled with facts outside the record of conviction,

could have authorized a conviction of a crime punishable by more

than one year’s imprisonment cannot and does not demonstrate

that Simmons was actually convicted of such a crime.”).

Thus, neither Simmons nor Carachuri-Rosendo support Mr.

Parker’s argument here because the defendants in those cases

were not actually convicted of two predicate felony offenses as

required under U.S.S.G. 2011 § 4B1.1(a)(3). Here, Mr. Parker

does not contest his previous two felony convictions, and

notably, Mr. Parker was sentenced to five years imprisonment for

his Maryland offense and three year imprisonment for his

California offense. Resp’t Opp’n Mem., Exs. A and B; Pre-Sent.

Invest. Report, ECF No. 345 at 17. Mr. Parker points to no

evidence that his criminal history points were calculated

incorrectly. Therefore, Attorney Miller cannot be found to have

provided ineffective assistance of counsel. See United States v.

Holland, 117 F.3d 589, 594 (D.C. Cir. 1997) (noting that a

lawyer is not ineffective for failure to file frivolous

pleadings). Because Attorney Miller’s performance was not

deficient, the Court need not address whether Mr. Parker

suffered prejudice.

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 C. The Court properly considered the § 3553 (a) factors

Finally, Mr. Parker argues that the Court made “no explanation

as to how or why it arrived at the sentence imposed” and that

the Court did not consider the 18 U.S.C. § 3553(a) sentencing

factors as required by law. Pet.’s First Suppl. at 4-5. The

government argues that the record clearly demonstrates that the

Court took into consideration the § 3553(a) factors. Resp’t

Opp’n Mem. at 13-14.

18 U.S.C. § 3553(a) requires sentencing courts to consider

numerous factors when sentencing a defendant. Courts must

consider “the nature and circumstances of the offense and the

history and characteristics of the defendant” as well as:

the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other
correctional treatment in the most effective
manner.” 18 U.S.C. § 3553(a).

18 U.S.C. § 3553(a)(1)-(2). The statute also requires

consideration of the various sentences available, the

sentencing range, pertinent policy statements issued by the

Sentencing Commission, the need to provide restitution to

victims, as well as the need to avoid discrepancies in

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sentences between offenders guilty of similar conduct. 18

U.S.C. § 3553(a)(3-7).

Contrary to Mr. Parker’s allegations, the record shows that

the Court considered the § 3553(a) factors:

My job is to impose—try to impose a sentence that is
sufficient but not greater than what is necessary.
Looking at the advisory guidelines, which I have;
looking at the § 3553 factors, which I have; looking at
all these folks here who love you dearly. . . I’m sure
that you were a very positive role model and that is
something that the court takes into consideration, you
know, the family. That is one of the § 3553 factors.

Sentencing Tr., ECF No. 552, Ex. H at 31-33. Later the Court

addressed the § 3553 factors again saying:

“We talked about what you did, your role, and believe
me, this is a big role. This was not dime bag stuff . .
. you were a high level drug distributor . . . I think
a sentence at the low end, balancing the § 3553 factors,
looking at the advisory guidelines, looking at your role
in the offense, looking at all of the characteristics,
I think the sentence of 235 months is an appropriate
sentence. I think it’s fair. I think it’s reasonable.

Id. at 34-35. Because the record confirms that the Court

considered the § 3553(a) factors, Mr. Parker’s claim of court

error fails.

D. Conclusion

Upon consideration of Mr. Parker’s motion and supplements,

the government's opposition, and Mr. Parker’s reply, Mr.

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Parker’s § 2255 motion is DENIED.

Signed: Emmet G. Sullivan
United States District Judge
August 4, 2016.

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