NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0348n.06
No. 20-4077
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 19, 2021
UNITED STATES OF AMERICA, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee,
)
) ON APPEAL FROM THE UNITED
v.
) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
TAMIKO PARKER,
)
Defendant-Appellant. ) OPINION
BEFORE: SUTTON, Chief Judge; SUHRHEINRICH and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Tamiko Parker stole money from a charitable
organization while she served as its executive director. She was indicted for theft of federal funds
and pled guilty. See 18 U.S.C. § 666(a). In calculating Parker’s Sentencing Guidelines range, the
district court applied several enhancements before sentencing Parker to 33 months in prison.
Parker now says the application of two of these enhancements amounted to impermissible double
counting. We AFFIRM.
I.
Tamiko Parker formerly served as the executive director of Collinwood & Nottingham
Villages Development Corporation (CNVDC). CNVDC, a recipient of federal funds, is a
charitable organization that acquires, owns, leases, and develops property in Cleveland, Ohio.
Among other things, CNVDC refurbishes blighted or run-down properties and rents them to
members of the community under a federal rent-to-own program.
No. 20-4077, United States v. Parker
Parker’s responsibilities included overseeing CNVDC’s development projects. As a result,
Parker had access to the organization’s bank accounts, including checks, debit and credit cards,
and other finances. Unfortunately, Parker abused her privileges. She wrote checks and money
orders from CNVDC’s accounts that she cashed for herself; she used the company debit card to
make personal purchases at Harley Davidson, T.J. Maxx, Sephora, Pier I, Victoria’s Secret, and a
casino; she withdrew cash from CNVDC’s accounts for her own use; and she double deposited her
paychecks. In the end, Parker stole over $195,000 from CNVDC.
After Parker left CNVDC in shambles, a grand jury indicted her for violating 18 U.S.C.
§ 666(a). Section 666(a) prohibits agents of certain organizations from stealing or embezzling the
organization’s money. See 18 U.S.C. § 666(a). Parker pled guilty, and the district court sentenced
her to 33 months in prison. That sentence fell at the high end of Parker’s Sentencing Guidelines
range.
The meat of this appeal is in the district court’s calculation of Parker’s Guidelines range.
Parker says the district court “double counted” some of her conduct when it calculated her
Guidelines range. The district court’s math here is easy to track: The court started off with a base
offense level of six, corresponding to the level set for violations of § 666(a). See U.S.S.G.
§ 2B1.1(a)(2). It then applied three enhancements. First, it added ten levels to Parker’s base level
because she stole over $150,000. See U.S.S.G. § 2B1.1(b)(1)(I). Then it imposed a pair of two-
level enhancements, the first for Parker’s misrepresentations that she was acting on behalf of
CNVDC, see U.S.S.G. § 2B1.1(b)(9)(A), and the second because Parker abused her position of
public trust, see U.S.S.G. § 3B1.3. After Parker accepted responsibility for her crimes at
sentencing, giving her a three-level reduction, her base offense level landed at 17. Combined with
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No. 20-4077, United States v. Parker
Parker’s criminal history category of II, her Guidelines range was 27 to 33 months. And as we
already noted, the district court imposed a 33-month sentence.
Parker now appeals her sentence. She makes two arguments. First, she says the district
court engaged in impermissible “double counting” when it imposed a two-level enhancement for
Parker’s misrepresentations that she was acting on behalf of CNVDC. According to Parker, her
base offense level already captured that conduct. And second, Parker argues that the application
of both § 2B1.1(b)(9)(A) for her misrepresentations and § 3B1.3 for her abuse of trust likewise
double counts the same conduct.
Neither of these arguments persuades us. We address them in turn. In reviewing the district
court’s application of the Sentencing Guidelines, we “must ‘accept the findings of fact of the
district court unless they are clearly erroneous and . . . give due deference to the district court’s
application of the guidelines to the facts.’” United States v. Simmerman, 850 F.3d 829, 832 (6th
Cir. 2017) (quoting 18 U.S.C. § 3742(e)).
II.
A.
Parker’s first argument is that applying the enhancement from U.S.S.G. § 2B1.1(b)(9)(A)
is “double counting” because the conduct the enhancement targets was already counted in Parker’s
base offense level. In some cases, it may indeed be impermissible for a district court to “double
count” a defendant’s conduct when sentencing her. “Double counting occurs when precisely the
same aspect of a defendant’s conduct factors into his sentence in two separate ways.” United States
v. Walters, 775 F.3d 778, 782 (6th Cir. 2015) (cleaned up). It follows, then, that “[n]o double
counting occurs if the defendant is punished for distinct aspects of his conduct.” Id.
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No. 20-4077, United States v. Parker
Section 2B1.1(b)(9)(A) punishes conduct distinct from that captured by Parker’s base
offense level. Indeed, “an examination of the language in [Parker’s] [i]ndictment, the relevant
statutes, and the Sentencing Guidelines reveals that” there was no impermissible double counting.
Walters, 775 F.3d at 783.
Start with Parker’s indictment. It accused her of embezzling, stealing, and obtaining by
fraud at least $5,000 belonging to CNVDC. This tracks the language of 18 U.S.C. § 666. The
statute prohibits “agents” of certain “organizations” from “embezzl[ing], steal[ing], [or]
obtain[ing] by fraud . . . property that is valued at $5,000 or more, and is owned by, or is under the
care, custody, or control of such organization.” 18 U.S.C. § 666(a)(1)(A). So the statute targets
specific acts by the organization’s agent: Embezzling, stealing, or obtaining the organization’s
money by fraud.
But § 2B1.1(b)(9)(A) takes aim at different conduct. It increases a defendant’s offense level
for “misrepresent[ing] that the defendant was acting on behalf of a charitable, educational,
religious, or political organization, or a government agency.” U.S.S.G. § 2B1.1(b)(9)(A). The
district court applied § 2B1.1(b)(9)(A) because Parker collected and pocketed cash rent, made
debit and credit card charges to CNVDC accounts for personal benefits, and withdrew cash from
CNVDC’s bank accounts by misrepresenting that she was doing so on behalf of CNVDC.
Applying the enhancement here did not cause double counting. We need only consider
Parker’s rent-collection scheme to see why. This scheme was part of Parker’s broader
embezzlement and theft spree. Parker would go to CNVDC tenants and demand rent in cash or
threaten eviction. The tenants would cede to these demands—after all, Parker was CNVDC’s
executive director, and they were renting from CNVDC. Of course, rather than deposit the cash in
CNVDC’s accounts, Parker would pocket it.
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No. 20-4077, United States v. Parker
Section 2B1.1(b)(9)(A) captures the first half of this scheme—Parker’s
misrepresentations—and § 666(a) captures the second half—Parker’s theft of the cash. So the
enhancement punished different aspects of Parker’s crime from what § 666(a) targets. See Walters,
775 F.3d at 782. Indeed, if Parker went to the tenants, demanded cash rent, but walked away
emptyhanded, she would not have violated § 666(a) (though she might incur other liability).
Likewise, if tenants simply mailed in their rent checks and Parker intercepted them before they
could make it into CNVDC’s bank accounts, then § 2B1.1(b)(9)(A) would not apply.
As we have already stated, “where a defendant is penalized for distinct aspects of his
conduct, no double counting takes place.” Walters, 775 F.3d at 784. Because § 2B1.1(b)(9)(A)
punishes Parker for her misrepresentations, and not her distinct act of pocketing CNVDC’s money
for her own use, the district court’s application of the Guideline did not lead to impermissible
double counting.
B.
We turn next to Parker’s second claim, which also relies on a double-counting theory. This
time, Parker says the district court engaged in double counting when it applied both U.S.S.G. §§
2B1.1(b)(9)(A) and 3B1.1. This argument meets the same fate as the first.
For starters, Parker did not preserve this objection below. Though Parker contended before
the district court that applying § 2B1.1 caused double counting vis-à-vis her base offense level,
she never suggested that application of § 2B1.1 together with § 3B1.3 created similar problems.
Not when the district court solicited objections to Parker’s presentence report early in Parker’s
sentencing, and not when the district court fielded the parties’ Bostic objections. See United States
v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). So, as the government points out, we review the
application of the enhancements together for plain error. See United States v. Vonner, 516 F.3d
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No. 20-4077, United States v. Parker
382, 385 (6th Cir. 2008) (en banc). That means Parker must show the application of both
enhancements was an “obvious or clear” error that affected both Parker’s “substantial rights” and
“the fairness, integrity, or public reputation of the judicial proceedings.” Id. at 386 (quoting United
States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).
But Parker does not establish any error, let alone plain error. We noted above that
§ 2B1.1(b)(9)(A) bumps a defendant’s offense level up two if the offense involved “a
misrepresentation that the defendant was acting on behalf of a charitable . . . organization.”
U.S.S.G. § 2B1.1(b)(9)(A). Compare that to § 3B1.3, which imposes a two-level enhancement
when “the defendant abused a position of public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense.” U.S.S.G. § 3B.1.3.
These enhancements target different aspects of Parker’s crime. Consider our decision in
United States v. Smith, 516 F.3d 473 (6th Cir. 2008). There, Smith landed a job as executive
director of a local Red Cross chapter. While serving in that position, Smith “used . . . donations
and other money from the chapter’s bank accounts to support her drug and alcohol habits, to pay
for a personal vacation and to buy furniture, jewelry, electronics and a tractor/snowblower.” Id. at
475 (cleaned up). The district court there applied both § 2B1.1(b)(9)(A) and § 3B1.3, and we
affirmed. “The abuse-of-trust enhancement accounts for Smith’s exploitation of her position as
executive director,” we reasoned, “while the misrepresentation enhancement accounts for Smith’s
deceptions in misleading contributors that their donations would go to charitable purposes rather
than her own.” Id. at 476.
So too here. Just as the § 2B1.1 enhancement in Smith punished Smith for her deception in
misleading contributors, here it punishes Parker for misleading CNVDC’s tenants and vendors.
That is distinct from the § 3B1.3 enhancement for abuse of trust, which sanctions Parker for her
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No. 20-4077, United States v. Parker
“exploitation of her position as executive director.” Id. The former harmed CNVDC’s
beneficiaries, including its tenants, and the latter the organization itself. See id. So the two
enhancements here target not only different conduct, but they also penalize different harms.
“In the final analysis, it is not double counting, but single counting, to punish [Parker] twice for
distinct aggravating qualities of her offense.” Id. at 477.
The district court did not double count Parker’s conduct in applying both §§ 2B1.1 and
3B1.3.
III.
We AFFIRM the district court.
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