Case: 19-10780 Document: 00515703919 Page: 1 Date Filed: 01/12/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 12, 2021
No. 19-10780 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Ricky Parkerson,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-517-1
Before Jolly, Southwick, and Wilson, Circuit Judges.
E. Grady Jolly, Circuit Judge:
On October 10, 2018, appellant Ricky Parkerson (“Parkerson”) was
charged in a one-count indictment with the offense of failure to register as a
sex offender in violation of 18 U.S.C. § 2250. On March 12, 2019, Parkerson
pled guilty without the benefit of a plea agreement. Parkerson’s Base Offense
Level was calculated in the Presentence Investigation Report (“PSR”) as 16.
He received a reduction of 3 points for accepting responsibility for his offense
and timely notifying the government of his intention to plead guilty, resulting
in a total offense level of 13. The PSR reflects that the United States
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No. 19-10780
Sentencing Guidelines prescribed an advisory range of 18–24 months
imprisonment.
At sentencing, the district court imposed a statutory maximum
sentence of 120 months imprisonment. Parkerson appeals, challenging both
its procedural and substantive reasonableness. Parkerson’s procedural attack
on his sentence has two targets: (1) the district court’s consideration of a
contested account contained in the PSR that was drawn from an August 8,
2016, police report, and (2) its consideration of the opinion of a Dr. Dunham
of the Texas Department of Criminal Justice (“TDCJ”) on Parkerson’s
likelihood of re-offending. Both these items of evidence, Parkerson argues,
lack sufficient indicia of reliability and thus should not have been considered.
The essence of Parkerson’s substantive challenge is that his sentence is
“shockingly high” and greater than necessary to achieve the sentencing
objectives set forth in 18 U.S.C. § 3553(a). Because we find no reversible
error, we affirm.
I.
The Supreme Court has directed that federal criminal sentences are
to be reviewed in a two-step process, with the reviewing court first
considering whether the district court committed any significant procedural
errors and only then, if it finds no such errors, reviewing the substantive
reasonableness of the sentence. Gall v. United States, 552 U.S. 38, 51 (2007).
These two steps are “sequential, dispositive inquiries.” United States v.
Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). If the district court
committed any significant procedural error, remand is required unless the
proponent of the sentence can establish “that the error did not affect the
district court’s selection of the sentence imposed.” Id. at 753 (quoting
Williams v. United States, 503 U.S. 193, 203 (1992)). A reviewing court
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should only proceed to the second step of the Gall inquiry if it finds no
procedural error or only harmless error. Id.
Sentencing is reviewed de novo for procedural error. United States v.
Sanchez-Ledezma, 630 F.3d 447, 449 (5th Cir. 2011). The factual findings of
the district court are reviewed for clear error. United States v. Harris, 702
F.3d 226, 229 (5th Cir. 2012).
II.
The PSR excerpts an August 8, 2016, police report that sets out a
narrative recounted by Parkerson’s niece to the Seagoville, Texas, police.
That narrative is as follows. Parkerson’s then-twenty-five-year-old niece
received a text message from Parkerson asking her to pick him up at the
grocery store. She obliged and picked up Parkerson. He gave her directions
to an open field in an isolated area. Both of them got out of the vehicle and
walked for about one-and-a-half miles, presumably at Parkerson’s direction.
There they encountered a fence, which Parkerson’s niece told him that she
would not cross. Parkerson got angry and pulled a box cutter on her.
Frightened, she ran back toward the car while Parkerson chased after her.
She was able to jump in the car and drive off, hitting Parkerson with her car
in the process. After getting home, she called her mother, who then called
the Seagoville Police Department.
No charges were filed in connection with this alleged incident.
Parkerson claims to not have even been aware of his niece’s allegations until
after he was arrested. At sentencing, responding to the objections of defense
counsel, Judge Boyle stated, “I think it’s a very detailed account. I think it’s
credible, and I’m going to assign it some weight.”
The PSR does not actually include any portion of the police report
itself, only a short excerpt. The parties dispute whether that passage exhibits
sufficient indicia of reliability to justify its consideration at sentencing.
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Defense counsel pointed out, at sentencing, that “[a]ll we have is [the
niece’s] account. We don’t have any corroborating evidence.” The
government argued that Parkerson’s failure to register as a sex offender and
his travel to Nevada shortly following the alleged incident corroborated his
niece’s account. The thrust of this argument seems to be that Parkerson’s
“flight” from Texas indicated a guilty mind and echoed his behavior after he
committed a sexual assault in 1991, when he also traveled to Nevada.
Parkerson stated that he went to Nevada because “[M]y dad died. And I—I
hadn’t seen my dad in 30 years, so I went to see him. It wasn’t me running.”
Secondly, in confecting the sentence, the district court considered the
opinion of TDCJ psychologist Dr. Dunham. In the section of the PSR titled
“FACTORS THAT MAY WARRANT DEPARTURE,” Probation Officer
McDougan included this reference to the opinion of Dr. Dunham:
“Furthermore, a TDCJ psychological evaluation indicated the defendant
possibly suffered from antisocial personality disorder and paraphilia. The
evaluation indicated the defendant represented a high risk for sexual re-
offense and suffered from a behavior abnormality that made him likely to
engage in future acts of predatory sexual violence.” Defense counsel filed
objections to this portion of the PSR, arguing that it should be redacted
because it did not have sufficient indicia of reliability.
Dr. Dunham’s opinion stems from his August 28, 2014, evaluation of
Parkerson. He completed a standard Static-99R evaluation, and he also
reviewed records provided by the TDCJ Civil Commitment
Multidisciplinary Team. The Static-99R is “the most researched and widely
used approach to sex offender risk assessment. It is an empirical-actuarial risk
assessment tool designed to predict sexual recidivism among adult male sex
offenders who have been charged with or convicted of an offense that is
judged to have a sexual motivation.” Parkerson scored a “3” on the Static-
99R, indicating a low-to-moderate risk of re-offending. Dr. Dunham then
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apparently went on to render his personal opinion regarding Parkerson’s
mental health and behavioral issues/disorders on the basis of the record
before him, concluding that Parkerson was actually at high risk of re-
offending. In effect, Dr. Dunham provided a professional opinion at odds
with the Static-99R results. Id.
The district court does seem to have given some, if very minimal,
weight to Dr. Dunham’s opinion. At sentencing, upon hearing defense
counsel’s objections to Dr. Dunham’s opinion, the sentencing judge stated,
“I can take both conclusions [i.e., Dr. Dunham’s opinion and the results of
the Static-99R] and give them as much weight as I think they deserve, which
is not much.” In determining the sentence to be imposed, the district court
focused primarily on Parkerson’s criminal history and the need to ensure
public safety, stating, “[T]he defendant is a repeat offender of the worst
kind…. I think that the risk here is very big. It’s a community safety thing
that I’m concerned about with him…. [W]e have to keep the community
safe.” The district court also referenced the fact that Parkerson’s previous
terms of imprisonment had apparently failed to achieve their intended
deterrent effect as well as the § 3553(a) factors of promoting respect for the
law, providing just punishment, and deterring others as justifying the
sentence imposed. Id. Ultimately, the district court imposed a statutory
maximum sentence of 120 months imprisonment, a substantial upward
variance from the 18–24 months prescribed by the Guidelines.
III.
A.
Parkerson’s first procedural argument concerns whether the district
court erred by considering the alleged encounter with his niece because the
PSR account lacks the necessary indicia of reliability. A sentencing court may
consider information contained in a PSR if it has an adequate evidentiary
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basis. Such information “generally bears sufficient indicia of reliability to be
considered as evidence by the sentencing judge in making factual
determinations required by the sentencing guidelines.” United States v.
Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996) (citation omitted). Furthermore,
past criminal conduct not resulting in a conviction may be considered. United
States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008) (citation
omitted). Moreover, the Sentencing Guidelines provide that “[i]n resolving
any dispute concerning a factor important to the sentencing determination,
the court may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its probable accuracy.”
U.S.S.G. § 6A1.3 (emphasis added). If information in the PSR lacks
sufficient indicia of reliability, then it is error for the district court to consider
it even if the defendant offers no rebuttal evidence. Harris, 702 F.3d at 231.
Alternatively, if information in the PSR does bear sufficient indicia of
reliability, then the burden shifts to the defendant to offer competent rebuttal
evidence. United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013).
In response, the government argues that the PSR passage at issue
meets the relevant standard of reliability. Citing United States v. Fuentes, 775
F.3d 213, 220 (5th Cir. 2014), the government observes that, although a
district court may not rely on a “bare arrest report” at sentencing,
“[i]nformation based on the results of a police investigation, such as an
offense report, has been deemed sufficiently reliable by this Court.” Here,
as the government points out, the PSR sets out the complainant’s account in
considerable detail. Furthermore, the government argues, Parkerson’s own
account of the disputed events of August 8, 2016, corroborates his niece’s
account because he confirms that they were together and that he had a box
cutter, even conceding that their stories may otherwise diverge
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considerably. 1 Id. at 12-13. But, in any event, this court has never held that
corroboration is necessary in order for a factual account contained in a PSR
to bear sufficient indicia of reliability to support its consideration at
sentencing. Id. at 13.
Replying to the government’s arguments, Parkerson says that simply
quoting or paraphrasing the uncorroborated statements of a complainant
from a police incident report and including them in a PSR does not elevate
those statements to the level of reliability sufficient to give them weight in a
sentencing determination. See United States v. Elwood, 999 F.2d 814, 817-18
(5th Cir. 1993) (“Bald, conclusionary statements do not acquire the patina of
reliability by mere inclusion in the PSR.”); Harris, 702 F.3d at 230, n.2
(“[M]ere inclusion in the PSR does not convert facts lacking an adequate
evidentiary basis with sufficient indicia of reliability into facts a district court
may rely upon at sentencing.”) (citations omitted).
After considering the parties’ respective arguments, we are convinced
that the factual account contained in the PSR bears sufficient indicia of
reliability to justify its consideration at sentencing. We begin by observing
that the account given to the police by Parkerson’s niece is quite detailed and
specific, including the location of the alleged assault, specific directions as to
how they supposedly got there, the nature of the weapon that was allegedly
used, and specific details about the alleged assault itself. We find it curious
that the defendant did not so much deny or respond to his niece’s allegations
but, instead, told a story that was entirely detached from the narrative
proffered by his niece, whose only points of contact with his niece’s account
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Parkerson’s version of events is that “[his niece] was in the backyard smoking
that K-2 stuff, and she was blowing it in her kid’s face, and I got onto her about it. I was in
the backyard, and I was threading this leather up because I was in the craft shop, and I had
the box cutter in my hand.”
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were that, in both, the two of them were together and Parkerson was holding
a box cutter, thus corroborating at least those aspects of his niece’s story.
We conclude that the niece’s account, as reflected in the relevant
passage of the PSR, bears sufficient indicia of reliability to meet this court’s
standard for consideration at sentencing. It is not the sort of conclusory
allegation, such as an unsubstantiated assertion by the government that
Parkerson assaulted his niece, that was at issue in Elwood, 999 F.2d at 817.
Neither is it a “bare arrest report.” Rather, the PSR contained facts, i.e.,
statements Parkerson’s niece made to the police. The information contained
in the PSR is similar to the information at issue in Fuentes, 775 F.3d at 220,
reliance on which this court condoned. Because this item of evidence bears
sufficient indicia of reliability, we find that the district court did not err in
considering the account of Parkerson’s niece, as contained in the PSR.
B.
Parkerson next argues that the district court committed a second
sentencing procedural error of the same type. He says that the district court
improperly considered the opinion of TDCJ psychologist Dr. Dunham to the
effect that Parkerson’s likelihood of re-offending was high. Parkerson
recognizes that the Federal Rules of Evidence do not apply at sentencing. He
argues, however, that Federal Rule of Evidence 702 is instructive regarding
what indicia of reliability are sufficient to justify reliance on expert opinion
testimony in the sentencing context. Here Parkerson argues that only the
Static-99R, and not Dr. Dunham’s statements opining on Parkerson’s
condition and likelihood of re-offending, was supported by reliable scientific
methodology. It was, therefore, or so Parkerson argues, error for the
sentencing court to consider both aspects of Dr. Dunham’s evaluation. The
government, for its part, hammers the point that the Federal Rules of
Evidence do not apply at sentencing and concludes that “[i]n light of the
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record as a whole, Parkerson’s history of sexual assaults and the 2016
conduct described in paragraph 12, could easily permit the court to accept
the TDCJ evaluator’s conclusion that Parkerson was at high risk of re-
offense.”
In considering whether the opinion of Dr. Dunham bears sufficient
indicia of reliability to support its consideration, we agree that Dr. Dunham
did not support or justify his opinion by reference to any empirically validated
methodology. He appears to have been articulating his personal opinion.
The fact that the empirically validated test, the Static-99R, indicated a
different risk assessment compounds concerns that Dr. Dunham’s opinion
lacks sufficient indicia of reliability. Nevertheless, it is unnecessary for us to
decide whether the district court’s consideration of Dr. Dunham’s opinion
was error because the record indicates that his opinion did not affect the
district court’s composition of the sentence it imposed.
Indeed, the record is quite clear that the district court would have
imposed the same 120-month sentence even if it had given no weight to Dr.
Dunham’s opinion. The district court, by its own account, gave “not much”
weight to the opinion. It considered the opinion in conjunction with the
contradictory results of the Static-99R. Id. In setting forth its reasons for the
sentence, the district court did not mention either component of Dr.
Dunham’s evaluation. As the government points out, it was Parkerson’s
criminal history, not the TDCJ evaluation, that led the district court to vary
upwards from the advisory range. We thus hold that the district court’s
treatment of Dr. Dunham’s opinion did not constitute a reversible
procedural error.
C.
Because we find that the district court committed no procedural error,
either in considering the PSR report of his niece’s allegations of assault, or in
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its treatment of Dr. Dunham’s opinion, we proceed to the second step of the
Gall analysis and review the sentence for substantive reasonableness. Gall,
552 U.S. at 51. A sentence is “reasonable” if the sentencing court did not
abuse its discretion. See Holguin-Hernandez v. United States, 140 S. Ct. 762,
766 (2020) (“Our decisions make plain that reasonableness is the label we
have given to the familiar abuse-of-discretion standard that applies to
appellate review of the trial court’s sentencing decision.”) (citations and
internal quotation marks omitted) (emphasis original).
The main thrust of Parkerson’s argument on this point is that his
sentence is “shockingly high” and greater than necessary to achieve the
sentencing objectives set forth in 18 U.S.C. § 3553(a). The “shockingly
high” standard, however, is drawn from Second Circuit precedent that does
not have any Fifth Circuit analogue. See United States v. Rigas, 583 F.3d 108,
123 (2d Cir. 2009) (discussing the Second Circuit “shockingly high”
standard); United States v. Rios-Garza, 769 F. App’x 186 (5th Cir. 2019)
(treating defendant’s claim that his sentence was “shockingly high” as a
challenge to its substantive reasonableness). We will thus examine whether
the district court abused its discretion in applying the statutory factors set
forth in § 3553(a).
18 U.S.C. § 3553(a) provides:
The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph
(2) of this subsection. The court, in determining the particular
sentence to be imposed, shall consider—(1) the nature and
circumstances of the offense and the history and characteristics
of the defendant; (2) 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
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provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the
most effective manner…. (emphasis added).
Parkerson argues that his sentence is greater than necessary to achieve the
purposes of § 3553(a). At sentencing, the district court focused primarily on
Parkerson’s criminal history and the need to ensure public safety. The
district court also referenced that Parkerson’s previous terms of
imprisonment had apparently failed to achieve their intended deterrent
effect. The court also cited the § 3553(a) factors of promoting respect for the
law, providing just punishment, and deterring others as justifying the
sentence imposed.
Given the public safety concerns at issue, when viewed in the light of
Parkerson’s criminal history, we cannot say that the sentence imposed is
substantively unreasonable. Previous sentences involving substantial jail
time had not deterred Parkerson from committing additional crimes,
including serious offenses involving sexual violence. Based on the record of
the sentencing hearing, the district court considered the § 3553(a) factors and
found that only a statutory maximum sentence would be sufficient to protect
the public from further crimes of the defendant. Id. Under these
circumstances, it is not our role to second-guess the district court’s exercise
of its sound discretion, and accordingly we find no error.
IV.
We sum up: Parkerson challenges both the procedural and substantive
reasonableness of his sentence. We have considered his arguments that the
district court committed two distinct procedural errors: giving weight to the
account of his niece contained in the August 8, 2016, police report and,
secondly, considering the opinion of TDCJ psychologist Dr. Dunham. For
the reasons stated above, we hold that the district court’s treatment of these
two items of evidence involved no reversible error. The account given by
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Parkerson’s niece bears sufficient indicia of reliability for the reasons we have
set out above. Finally, Parkerson has not shown that Dr. Dunham’s opinion
affected the sentence imposed. In short, we have found that the district court
committed no reversible procedural error.
Because we found that there was no procedural error, we considered
the substantive reasonableness of Parkerson’s sentence. We held that
Parkerson’s sentence is not unreasonable. Under the very deferential
standard of review applicable here, it would be inappropriate for us to second-
guess the district court’s application of the § 3553(a) factors. Parkerson’s
history of sexual violence is sufficient to justify, as necessary to ensure public
safety, a statutory maximum sentence for failing to register.
Accordingly, the sentence and the judgment of the district court is, in
all respects,
AFFIRMED.
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