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United States v. Parker

June 16, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
VERNADO PARKER, DEFENDANT-APPELLANT.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 04 CR 361 and 08 C 2957-Matthew F. Kennelly, Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge

ARGUED MAY 21, 2010

Before EASTERBROOK, Chief Judge, and BAUER and TINDER, Circuit Judges.

Vernado Parker pleaded guilty to conspiring to possess more than 5 kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. § 846, and admitted under oath to distributing between 50 and 150 kilograms. In exchange, the government agreed to dismiss the remaining charges and to recommend that Parker receive certain sentence reductions under the United States Sentencing Guidelines. The district court accepted the government's recommendations and sentenced Parker to 121 months' imprisonment, the bottom of Parker's calculated Guidelines range. Parker challenges the effectiveness of his counsel's advice during the plea negotiation and the calculation of his sentence. For the reasons below, we affirm the district court's separate rulings on those issues.

I. BACKGROUND

This is a consolidated appeal from (1) Parker's criminal conviction and sentence; and (2) his civil habeas action under 28 U.S.C. § 2255, in which the district court re-entered judgment in the underlying criminal case so that Parker could timely appeal it, having found Parker's counsel constitutionally ineffective for failing to timely appeal the original judgment. Also in the civil case, the district court denied Parker's motion to vacate his sentence after finding that although Parker's counsel acted deficiently in advising Parker about his plea negotiation, the misadvice did not prejudice Parker. See United States v. Parker, No. 08 CV 2957, 2009 WL 4043177, at **9-12 (N.D. Ill. Nov. 23, 2009).

Counsel had first informed Parker accurately about the nature of the government's plea offer. In exchange for pleading guilty to conspiring to possess more than 5 kilograms of cocaine with intent to distribute and for admitting to distributing between 50 and 150 kilograms, the government offered to dismiss the remaining fifteen charges arising from the same course of conduct and to recommend a two-level reduction under the Guidelines for accepting responsibility and another two-level reduction for being eligible for the "safety valve." See 18 U.S.C. § 3553(f).

Counsel then misadvised Parker about the effects of accepting this offer. Specifically, counsel (1) told Parker that the resultant sentence would be a maximum of 120 months, and probably less; (2) explained to Parker that admitting to 50 or more kilograms of cocaine, versus the only 15 kilograms for which Parker thought he was responsible, would not affect his sentence other than determining the recommended Guidelines range; and (3) led Parker to believe that eligibility for the safety-valve reduction required accepting the government's deal. The district court would later find the first two of these three pieces of misadvice constitutionally deficient under Strickland v. Washington, 466 U.S. 668 (1984), without reaching the third, because Parker's worst-case scenario was at least 151 months, not 120 months as counsel predicted, and because drug-quantity stipulations impact a judge's assessment of factors under 18 U.S.C. § 3553(a) in determining the sentence after calculating a defendant's advisory Guidelines range. Parker, 2009 WL 4043177, at *10.

Parker accepted the deal, pleaded guilty to the conspiracy count, and admitted to distributing between 50 and 150 kilograms of cocaine:

THE COURT: So how then do you plead to the charge in Count 1 of conspiracy to knowingly and intentionally possess with intent to distribute and to distribute controlled substances of greater than 50 but less than 150 kilograms of cocaine? Do you plead guilty or not guilty to that charge?

THE DEFENDANT: Guilty.

THE COURT: And you're doing that voluntarily, is that right?

THE DEFENDANT: Yes.

Id. at *7 (quoting Tr. of Feb. 9, 2007, at 22-23). The admitted quantity of 50 to 150 kilograms put Parker's base offense level at 36, which became 32 after the two reductions, thus giving Parker a Guidelines range of 121 to 151 months imprisonment. But Parker "believed that he was responsible for, at most, 15 kilograms," id. at *3, and he "expressed reluctance [to his defense counsel] to agree to a quantity of 50-150 kilograms." Id. Had Parker pleaded guilty without admitting to the drug-quantity required to invoke the plea agreement, and admitted instead to only 15 kilograms without the benefit of the plea agreement, then his calculated Guidelines range might have been either 78 to 97 months or 97 to 121 months (as Parker calculates and the government does not dispute), rather than 121 to 151 months, although the probability of a lesser range is an ...


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