United States of America v. Jamar Ke-Shawn Parker

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-4579

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMAR KE-SHAWN PARKER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:18-cr-00117-D-1)

Submitted: May 5, 2020 Decided: May 27, 2020

Before AGEE, FLOYD, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

G. Alan DuBois, Federal Public Defender, Jennifer C. Leisten, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Phillip A. Rubin, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jamar Ke-Shawn Parker pled guilty to two counts of distributing and possessing
with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) (2018). The district
court sentenced him, as a career offender, to concurrent sentences of 168 months’
imprisonment, terms in the middle of the 151-to-188-month advisory Sentencing
Guidelines range. Parker appeals, maintaining that his sentence is both procedurally and
substantively unreasonable. Finding no error, we affirm.
We review a defendant’s sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” for reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see United States v. Provance,
944 F.3d 213, 217 (4th Cir. 2019). We first determine whether the district court committed
procedural error, such as improperly calculating the Guidelines range, failing to consider
the 18 U.S.C. § 3553(a) (2018) sentencing factors, relying on clearly erroneous facts, or
inadequately explaining the sentence. United States v. Lymas, 781 F.3d 106, 111-12 (4th
Cir. 2015). Only if we find no significant procedural error do we then assess the substantive
reasonableness of the sentence. United States v. Nance, __ F.3d __, __, 2020 WL 1918705,
at *5 (4th Cir. Apr. 21, 2020). “Any sentence that is within or below a properly calculated
Guidelines range is presumptively [substantively] reasonable. Such a presumption can
only be rebutted by showing that the sentence is unreasonable when measured against the
18 U.S.C. § 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014)
(citation omitted).

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Parker first argues that his sentence is procedurally unreasonable because the court
failed to address his nonfrivolous arguments concerning his mental health and drug
addiction. “[A] district court must address or consider all non-frivolous reasons presented
for imposing a different sentence and explain why he has rejected those arguments.”
United States v. Ross, 912 F.3d 740, 744 (4th Cir.), cert. denied, 140 S. Ct. 206 (2019).
When reviewing a district court’s sentencing explanation, “we look at the full context,
including the give-and-take of a sentencing hearing,” rather than just the statements the
district court made at the moment the sentence was imposed. Nance, 2020 WL 1918705,
at *5. “Where a sentencing court hears a defendant’s arguments and engages with them at
a hearing, we infer from that discussion that specific attention has been given to those
arguments.” Id.
At the sentencing hearing, defense counsel argued that a 151-month sentence would
adequately address various concerns about Parker’s mental health and drug addiction.
Although the district court declined to impose the low-end Guidelines sentence that counsel
requested, the court specifically recommended a mental health assessment and treatment
for Parker’s mental health and substance abuse problems. Furthermore, the court included
as special conditions of supervised release that Parker participate in mental health and
narcotic addiction treatment programs. By making these recommendations and imposing
the special conditions of supervised release, the district court made clear that it considered
Parker’s arguments regarding his mental health and drug addiction. Nance, 2020 WL
1918705, at *6.

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Next, Parker maintains that the district court relied on erroneous facts in imposing
the sentence. Specifically, Parker argues that the district court imposed the sentence based
on its mistaken belief that heroin kills 70,000 Americans every year. Parker contends that
the number of fatalities caused by heroin, while still in the thousands, is actually much
lower than the number cited by the district court. However, based on the context of the
court’s statement, it is clear that the court meant to emphasize what Parker himself does
not dispute—that heroin is a deadly drug. Because we can say with fair assurance that the
district court’s explicit consideration of the precise number of annual heroin deaths would
not have affected the sentence imposed, we conclude that any inaccuracy in the court’s
estimate was harmless. See United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010)
(discussing harmless error in context of sentencing). In addition, in light of evidence in
the record showing that heroin that Parker sold likely caused a customer’s illness, we reject
Parker’s related claim that the court erroneously described the drugs he sold as poison.
In his final argument, Parker claims that his sentence is substantively unreasonable
because the district court focused exclusively on his criminal history without regard to
other relevant considerations. This argument simply is not supported by the record.
First, the district court discussed the nature and circumstances of the offense,
acknowledging defense counsel’s assertion that the crime involved the distribution of only
1.8 grams of heroin but emphasizing that heroin was deadly and plagued the community.
Next, the court addressed Parker’s history and characteristics, recognizing his difficult
childhood while noting his academic success. In considering Parker’s character, the court
remarked on the irony that Parker’s own mother was a drug addict and yet he chose to

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distribute heroin, ensuring that others would endure the same difficulties he had
encountered as a child. The court then went through Parker’s criminal record, observing
that the penalties he had faced for earlier drug convictions did not deter him from
continuing to deal in heroin. Finally, the court took note of defense counsel’s point that
Parker did not have a firearm, was lawfully employed, and suffered a gunshot wound that
prompted him to start a foundation that taught children about music. But the court once
again observed the irony of Parker’s efforts to both serve his community and harm it by
dealing in heroin, which the court found showed Parker’s lack of respect for the law. Given
the court’s thorough and balanced sentencing explanation, we disagree with Parker’s claim
that the court placed too much weight on his criminal history. Accordingly, we conclude
that Parker has failed to rebut the presumption of reasonableness accorded his within-
Guidelines sentence. Louthian, 756 F.3d at 306.
Because we conclude that Parker’s sentence is both procedurally and substantively
reasonable, we affirm. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED