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Date: 09-16-2021
Case Style:
United States of America v. Rashaun Parks
Case Number: 19-3081
Judge: Robert L. Wilkins
Court: United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Plaintiff's Attorney: Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Elizabeth
Trosman and Chrisellen R. Kolb, Assistant U.S. Attorneys
Defendant's Attorney:
Description:
Washington, DC - Criminal defense lawyer represented defendant with one count of knowingly transporting an individual to engage in prostitution charge.
From about 2014 until 2019, Parks worked as a pimp in
Washington, D.C. He used social media to recruit women, and
he was arrested in May 2019 after recruiting an undercover FBI
agent on Facebook. Parks pleaded guilty to a one-count
information in August 2019, but he retained his right to appeal
if the District Court imposed an above-Guidelines sentence.
The United States Probation Office prepared a presentence
report (“PSR”). In the PSR, the Probation Officer stated that
the District Court was required to impose a sentence of
supervised release ranging from “five years to life.” To arrive
at that conclusion, the Probation Officer cited one statutory
source and one provision of the Sentencing Guidelines
(U.S.S.G.).
First, the Probation Officer cited to 18 U.S.C. § 3583(k),
the statutory provision calling for a term of supervised release
“not less than 5 [years], or life” for “any offense under . . . [18
U.S.C. §] 2421.” A78 ¶ 131. Second, the Probation Officer
cited U.S.S.G. § 5D1.2(b)(2), which provides for a term of
supervised release “up to life, if the offense is . . . a sex
offense.” The Probation Officer concluded from this latter
3
provision that the applicable Guidelines range for Parks’s
offense was “five years to life” of supervised release. A78 ¶
132.
Parks’s counsel objected only to the statutory provision
cited in the PSR. He argued that the statute (18 U.S.C. §
3583(k)) was inapplicable because it was written to address the
exploitation of minors, and since none of Parks’s victims were
minors, the statute could not apply to his case. Counsel raised
this legislative-history argument in his sentencing
memorandum as well as at the sentencing hearing, and he asked
the District Court to impose two years of supervised release.
But counsel never objected to the Guidelines provision,
which—according to the PSR—also required a term of five
years to life. The Government, for its part, argued that the
Court should impose a 10-year term of supervised release.
At sentencing, the District Court explained that it had
reviewed the PSR and sentencing memoranda. Turning to the
supervised release portion of the sentence, the District Court
stated that the Court “must impose a term of supervised release
of five years to life” under the applicable statute and the
Guidelines. A99. The District Court confirmed that neither the
Government nor Parks’s counsel requested a departure. A100–
01. Finally, the District Court considered the relevant
sentencing factors under 18 U.S.C. § 3553(a), heard from the
Government, Parks’s counsel, and Parks, and sentenced Parks
to 22 months in prison followed by six years of supervised
release.
The District Court made a few additional remarks after
imposing the supervised release sentence. First, the Court
noted that it believed the Government’s request for 10 years of
supervised release was “excessive.” A131. And second, in
response to the objection raised by Parks’s counsel to the
statutory provision of five years to life, the District Court
stated:
4
[W]hether the 5 years is required or not, I do
think it’s required, but regardless of whether it
would be required or not, I would come out at 6
years anyway. So I don’t think that legal point
has much to do with my arriving at the 6-year
[supervised release] point . . . .
6 years of supervised release is . . . a lot less than
the Government wanted, but still a significant
period of supervised release is warranted by the
same kind of characteristics that, I think, push
us toward . . . the top of the guideline range
. . . . I am relying, I guess, primarily on the need
to deter you and to protect the public in
fashioning both the 22 months and the relatively
long supervised – on the long end in terms of
supervised release.
A132.
B.
As it turns out, the District Court relied on the wrong
provision of the Guidelines due to an error in the PSR that went
undetected by Parks’s counsel. Both Parks and the
Government agree on appeal that the correct Guidelines
provision called for only five years of supervised release—not
five years to life.
To understand this error requires a brief tour of the
Guidelines. The District Court relied on § 5D1.2(b)(2), based
on the unopposed recommendation from the PSR. That
provision calls for a term of supervised release “up to life [for]
. . . a sex offense.” U.S.S.G. § 5D1.2(b)(2). But as Application
Note 1 to the provision explains, a “sex offense” within the
meaning of § 5D1.2 is an offense “perpetrated against a minor.”
5
Id., Application Note 1.1
And because none of Parks’s victims
was a minor (or represented herself as such), § 5D1.2(b)(2) was
the incorrect provision to apply.
The proper Guidelines provision was § 5D1.2(c). Unlike
subsection (b)(2), subsection (c) calls for just five years of
supervised release. Parks’s offense carries a statutory term of
supervised release of five years to life under 18 U.S.C. §
3583(k), but the Guidelines call for one to three years under
U.S.S.G. § 5D1.2(a). This difference is resolved by U.S.S.G.
1 Below is the full definition of “sex offense” provided by
Application Note 1 to U.S.S.G. § 5D1.2:
1. Definitions—For purposes of this guideline:
“Sex offense” means (A) an offense, perpetrated
against a minor, under (i) chapter 109A of title 18,
United States Code; (ii) chapter 110 of such title, not
including a recordkeeping offense; (iii) chapter 117
of such title, not including transmitting information
about a minor or filing a factual statement about an
alien individual; (iv) an offense under 18 U.S.C. §
1201; or (v) an offense under 18 U.S.C. § 1591; or
(B) an attempt or a conspiracy to commit any
offense described in subdivisions (A)(i) through (v)
of this note. Such term does not include an offense
under 18 U.S.C. § 2250 (Failure to register).
“Minor” means (A) an individual who had not
attained the age of 18 years; (B) an individual,
whether fictitious or not, who a law enforcement
officer represented to a participant (i) had not
attained the age of 18 years; and (ii) could be
provided for the purposes of engaging in sexually
explicit conduct, or (C) an undercover law
enforcement officer who represented to a participant
that the officer had not attained the age of 18 years.
6
§ 5D1.2(c), which restricts the applicable Guidelines range to
a sentence of just five years.
To arrive at the correct Guidelines calculation under §
5D1.2(c), we begin with U.S.S.G. § 5D1.2(a) and end with
Application Note 6. Section 5D1.2(a) provides, in relevant
part: “Except as provided in subsections (b) and (c), if a term
of supervised release is ordered, the length of the term shall be
. . . (2) at least one year but not more than three years for a
defendant convicted of a Class C or D felony . . . .” U.S.S.G.
§ 5D1.2(a). Parks’s offense was a Class C felony, so he falls
into the range of one to three years under § 5D1.2(a). Compare
18 U.S.C. § 3559(a)(3) (explaining that a Class C felony is an
offense with a maximum prison term of “less than twenty-five
years but ten or more years”), with 18 U.S.C. § 2421(a)
(imposing a prison sentence of “not more than ten years”).
However, § 5D1.2(c) calls for a term of supervised release “not
less than any statutorily required term of supervised release.”
U.S.S.G. § 5D1.2(c). Subsection (c) is further explained by
Application Note 6:
[I]f subsection (a) provides a range of two years
to five years, but the relevant statute requires a
minimum term of supervised release of three
years and a maximum term of life, the term of
supervised release provided by the guidelines is
restricted by subsection (c) to three years to five
years. Similarly, if subsection (a) provides a
range of two years to five years, but the relevant
statute requires a minimum term of supervised
release of five years and a maximum term of
life, the term of supervised release provided by
the guidelines is five years.
7
Id., Application Note 6 (emphasis added). In short,
Application Note 6 reconciles any discrepancy between the
Guidelines for supervised release and the statutory term of
supervised release. It confirms that the Guidelines call for just
five years of supervised release for Parks’s offense.
Parks timely appealed. He argues that his counsel
provided ineffective assistance by failing to alert the District
Court to this incorrect application of the Guidelines.
II.
“The Sixth Amendment right to counsel in ‘all criminal
prosecutions’ is the right to the effective assistance of counsel.”
United States v. Burroughs, 613 F.3d 233, 238 (D.C. Cir. 2010)
(citing Strickland v. Washington, 466 U.S. 668, 684–86
(1984)). To succeed on a claim of ineffective assistance, “a
defendant must show that his lawyer’s representation was
deficient in a way that caused him prejudice.” Id. “A counsel’s
performance is deficient if it fell below an objective standard
of reasonableness, and prejudicial if there is at least a
reasonable probability that it affected the outcome of the
proceeding.” Johnson v. Wilson, 960 F.3d 648, 654 (D.C. Cir.
2020), cert. denied, 141 S. Ct. 1127 (No. 20-707), (Jan. 11,
2021) (internal citations and quotation marks omitted).
When a defendant raises an ineffective assistance claim for
the first time on direct appeal, “this [C]ourt’s ‘general practice
is to remand the claim for an evidentiary hearing’” given the
“the fact-intensive nature of the Strickland inquiry.” United
States v. Rashad, 331 F.3d 908, 909 (D.C. Cir. 2003) (quoting
United States v. Fennell, 53 F.3d 1296, 1303–04 (D.C. Cir.
1995); and citing Massaro v. United States, 538 U.S. 500, 505
(2003)). But we will decide ineffective assistance claims
without remand in the rare circumstances where “the trial
record . . . conclusively shows that the defendant either is or is
8
not entitled to relief.” Id. at 910 (quoting Fennell, 53 F.3d at
1303–04) (internal quotation marks omitted).
Parks argues that this Court can decide his claim without
remanding for an evidentiary hearing, because his case presents
a rare instance where the record conclusively demonstrates his
counsel’s error. We agree, and so we turn to our analysis of
Parks’s claim under Strickland.
III.
The Government concedes that Parks’s counsel performed
deficiently by failing to alert the District Court to the proper
Guidelines provision. The only question is whether Parks was
prejudiced by this deficient performance. See Lee v. United
States, 137 S. Ct. 1958, 1964 (2017).
Under Strickland, a defendant is prejudiced where there is
a “reasonable probability that, but for counsel’s unprofessional
errors, the result of [] sentencing would have been different.”
United States v. Abney, 812 F.3d 1079, 1086 (D.C. Cir. 2016)
(quoting Strickland, 466 U.S. at 694) (some brackets removed).
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S.
at 694.
We agree with Parks that the record of his sentencing
shows a reasonable probability that the District Court would
have chosen a five-year sentence but for his counsel’s failure
to object to the incorrect Guidelines provision.
A.
“When a defendant is sentenced under an incorrect
Guidelines range . . . the error itself can, and most often will,
be sufficient to show a reasonable probability of a different
outcome absent the error.” Molina-Martinez v. United States,
9
136 S. Ct. 1338, 1345 (2016).2
Although “[t]here may be
instances when, despite application of an erroneous Guidelines
range, a reasonable probability of prejudice does not exist,” id.
at 1346, this case does not present one of those instances. In
short, the District Court failed to “consider[] the correct
Guidelines range” in sentencing, id. at 1347, and thus provided
no explanation as to why “the sentence it chose was appropriate
irrespective of the Guidelines range,” id. at 1346.
Here, it is undisputed that the District Court used the
wrong Guidelines range and that, “in the ordinary case,” this
error is enough to show prejudice. See Molina-Martinez, 136
S. Ct. at 1347 (“[I]n the ordinary case a defendant will satisfy
his burden to show prejudice by pointing to the application of
an incorrect, higher Guidelines range and the sentence he
received thereunder. Absent unusual circumstances, he will not
be required to show more.”). But the Government argues that
this case presents an exception. Specifically, the Government
argues that Parks was not prejudiced because “the district court
thought the sentence it chose was appropriate irrespective of
the Guidelines range,” id. at 1346 (emphasis added), and it
would therefore have imposed a six-year term of supervised
release even if it had been made aware that the Guidelines
range was five years, see Gov’t’s Br. 21.
2 Though the Supreme Court announced this rule in the context of
plain-error review of a sentencing decision, this Court has noted that
there is an “analogy” between the standard of review for plain error
under Federal Rule of Criminal Procedure 52(b), and the prejudice
prong of Strickland. See United States v. Saro, 24 F.3d 283, 287
(D.C. Cir. 1994) (“[T]he Strickland formulation of ‘prejudice’ comes
quite close to what we have required in plain-error cases.”); see also
United States v. Hall, 326 F.3d 1295, 1301 & n.10 (D.C. Cir. 2003)
(rejecting an ineffective assistance of counsel claim as
nonprejudicial, because the claim failed plain-error review).
10
The Government points to various statements made by the
District Court indicating that it considered the six-year
supervised release sentence to be warranted, in spite of
arguments to the contrary made by Parks’s counsel. Id. at 20.
For instance, at the sentencing hearing, the District Court
rejected an argument from Parks’s counsel that the supervised
release statute—18 U.S.C. § 3583(k)—was inapplicable, and
responded that “whether the 5 years is required or not . . . I
would come out at 6 years anyway.” A132. The District Court
also expressed skepticism about whether Parks “really [thought
he] did something wrong here,” A131, noting that Parks’s
offense was his career and his lifestyle, A132. And the District
Court stated that Parks’s sentence was formulated “primarily
on the need to deter [Parks] and to protect the public in
fashioning both the 22 months [in prison] and the relatively
long supervised . . . release.” A132.
But the Government reads too much into the District
Court’s statements. Far from indicating that the District Court
would have imposed an identical sentence regardless of the
applicable Guidelines provision, the record shows that the
District Court firmly believed it was fashioning a withinGuidelines sentence. The District Court cited the Guidelines
more than once before announcing Parks’s sentence. See A99
(“The guideline requirement is also five years to life under
Guidelines Section 5D1.2(b)(2).”); A131 (“[T]he guidelines
recommend . . . .”); A132 (noting that six years of supervised
release was “warranted by the same kind of characteristics that
. . . push us toward . . . the top of the guideline range” for the
term of imprisonment). The District Court also remarked that
it was fashioning a sentence “not [at] the top end”—suggesting
the Court believed it was choosing a lower-end, Guidelinescompliant sentence. A131. Furthermore, the District Court
made statements indicating that it relied heavily on the
advisory Guidelines at sentencing. See A130 (discussing
Parks’s criminal history and noting that it was “not something
11
that necessarily jumps out at me as warranting the high end of
the guidelines, nor is it something . . . warranting the low end
. . . to some degree, it’s already reflected in the guideline range
that’s appropriate.”).
Under these circumstances, we cannot say with complete
confidence that the District Court would have imposed the
same six-year sentence had Parks’s counsel raised the
Guidelines error below. To be sure, the District Court rejected
the request by Parks’s counsel to impose a less-than-five-year
sentence under the applicable statute, but the record is “silent”
as to what the District Court would have done had it
“considered the correct Guidelines range.” See MolinaMartinez, 136 S. Ct. at 1347; see also A132.
We agree with Parks that there is a reasonable probability
the District Court would have selected a five-year sentence had
his counsel corrected the error below. For one thing, this case
shares an important similarity with Molina-Martinez, 136 S.
Ct. at 1347. There, the district court imposed the “lowest
sentence within what [it] believed to be the applicable range”
of the Guidelines. Id. The Supreme Court explained that this
“selection of a sentence at the bottom of the range, despite the
Government’s request for the maximum Guidelines sentence,
evinced an intention to give the minimum recommended by the
Guidelines.” Id. at 1347–48 (internal quotation marks,
alteration, and citation omitted). Here, too, the District Court
imposed a six-year sentence of supervised release despite
working from the understanding that the Guidelines advised up
to a life term of supervision—and despite the Government’s
request for a ten-year term. That the District Court sentenced
Parks toward the bottom of what it believed to be an extensive
Guidelines range suggests that, had Parks’s counsel performed
effectively at sentencing, the District Court might well have
chosen the lower, five-year Guidelinessentence. Cf. id. at 1348
(“Given these circumstances, there is at least a reasonable
12
probability that the District Court would have imposed a
different sentence had it known that 70 months was in fact the
lowest sentence the Commission deemed appropriate.”).
Our conclusion is further supported by our wellestablished requirement that a district court justify, on the
record, its decision to impose an upward variance from the
Sentencing Guidelines.3
See United States v. Brown, 892 F.3d
385, 404 (D.C. Cir. 2018) (“Thrice before, this court has held
that an inadequately explained and insufficiently particularized
upward variance constitutes plain error.”). We have cautioned
that “an upward variance is not supposed to reduplicate
punishment already meted out by the Guidelines’ range itself,”
so district courts “choosing an above-Guidelines sentence . . .
[must] explain why the otherwise applicable Guidelines
calculation does not fully account for the described criminal
conduct.” Id. at 405 (internal quotation marks omitted). “To
sustain an upward variance, the district court . . . must state the
specific reason why the defendant’s conduct was more harmful
or egregious than the typical case represented by the relevant
Sentencing Guidelines range.” United States v. Murray, 897
F.3d 298, 308–09 (D.C. Cir. 2018) (emphasis added) (internal
quotation marks and brackets omitted).
In other words, a greater justification is required when
district courts select an above- or below-Guidelines sentence,
over a within-Guidelines sentence. By contrast, when a withinGuidelines sentence is challenged on appeal, this Court applies
a presumption of reasonableness. See, e.g., United States v.
Kaufman, 791 F.3d 86, 89 (D.C. Cir. 2015); see also Rita v.
United States, 551 U.S. 338, 347 (2007). Where, as here, a
3
“A variance refers to a non-Guidelines sentence imposed outside
the guidelines framework based on the applicable factors in 18
U.S.C. § 3553(a) taken as a whole.” United States v. Murray, 897
F.3d 298, 308 n.8 (D.C. Cir. 2018) (internal alterations, quotation
marks, and citations omitted).
13
district court varies upward from the Guidelines, the court
“cannot satisfy [its] requirement with generic recitations of the
sentencing factors” and “must provide an explanation
sufficiently compelling to support the degree of the variance.”
Brown, 892 F.3d at 405 (quoting Gall v. United States, 552
U.S. 38, 50 (2007)) (internal quotation marks omitted).
This higher standard for justifying a variance further
undermines our confidence in the outcome below. See
Strickland, 466 U.S. at 694 (“A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.”). Had the District Court been made aware of the
five-year Guidelines by Parks’s counsel, the District Court
would have been required to state with “specific reason why
the defendant’s conduct was more harmful or egregious than
the typical case” and why the case warranted an upward
variance from five to six years. Murray, 897 F.3d at 308–09.
But here, the District Court appeared to be saying the opposite
at certain points—though the statements in the record are
varied. See A128 (“[Y]our conduct was not, in some ways,
stereotypical of what someone might think of as a pimp . . . you
didn’t beat anybody up, etcetera, and that is true.”); A131 (“6
years . . . is substantially less than the Government wanted. I
do think 10 years is excessive.”); but see A129 (“I’d also say
. . . this was conduct that you engaged in over a period of time
. . . and the guidelines also specifically allow me to consider
whether it was your career and lifestyle, and that is significant
. . . .”).
We hold that Parks has demonstrated a reasonable
probability that, but for his counsel’s failure to alert the District
Court to the applicable Guidelines provision, the District Court
would not have imposed the above-Guidelines sentence it
chose. Because Parks has satisfied both prongs of the
Strickland analysis, we conclude that his counsel provided
ineffective assistance at sentencing.
Outcome: For the foregoing reasons, we vacate the supervised
release portion of Parks’s sentence and remand for
resentencing.
Plaintiff's Experts:
Defendant's Experts:
Comments: