United States of America v. David Lee Parker

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4023
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LEE PARKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12−cr−00059−GBL−1)
Argued: September 20, 2016 Decided: December 2, 2016
Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Richard Daniel Cooke,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Geremy C. Kamens, Acting Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Christopher Catizone, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
David Lee Parker seeks to appeal the 111-month sentence
entered on his convictions pursuant to his guilty plea to four
counts of fraud (i.e., access device fraud, wire fraud, and
fraud in connection with computers, in violation of 18 U.S.C.
§§ 1029(a)(2), 1343, and 1030(a), respectively) and two counts
of identity theft, in violation of 18 U.S.C. § 1028A(a).
Parker’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), and the Government moved to dismiss the
appeal based on an appellate waiver contained in the plea
agreement between the parties. Parker filed a pro se
supplemental brief raising numerous issues, and we ordered
supplemental briefing on the issue of whether the Government
breached the plea agreement at sentencing. Finding no breach and
that the appeal waiver is enforceable, we grant the Government’s
motion and dismiss the appeal.
I.
Parker contends that the Government breached the plea
agreement by failing to recommend at sentencing that the
district court treat the four fraud counts individually, and
that this breach constitutes plain error affecting his
substantial rights. As part of the plea agreement, the
Government promised that it would “recommend to the [district]
[c]ourt that at least [sic] the following provisions of the

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Sentencing Guidelines apply.” J.A. 58. The plea agreement then
lists each fraud count -- Counts 1, 3, 5, and 6 -- with its base
offense level and loss amount. The plea agreement states that
U.S.S.G. § 2B1.1 applies to all four fraud counts.
The presentence report grouped Counts 1, 3, 5, and 6 and
calculated a base offense level of 7 for the group under
U.S.S.G. § 2B1.1(a)(1). With 20 levels in increases and a three
level reduction for acceptance of responsibility, Parker’s total
offense level was 24. Parker’s criminal history was in Category
III, and the presentence report calculated his Guidelines range
for the group at 63 to 78 months’ imprisonment. Separately,
Parker was subject to consecutive terms of 24 months’
imprisonment on Counts 2 and 4 (identity theft), and the
presentence report calculated these prison terms as his
Guidelines sentences for those counts. Parker contends that his
total advisory sentencing range would have been lower without
grouping.
At Parker’s initial sentencing in May 2012, the district
court orally announced a sentence of concurrent terms of 78
months’ imprisonment on Counts 1, 3, and 5, a concurrent
sentence of 60 months’ imprisonment on Count 6, and “a sentence
of 24 months consecutive to all other counts for each other for
Counts 2 and 4,” for a total sentence the court concluded
amounted to 111 months’ imprisonment (rather than 112 months).

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J.A. 129. After the court excused the parties, it “adjust[ed]
[the sentence] to 111” by imposing concurrent sentences of 50
months on Counts 1, 3, and 5, “plus 60.” J.A. 133-34.
Despite these oral pronouncements, the district court’s
docket shows apparent revisions to Parker’s sentence on three
additional occasions: (1) a minute entry reflects the imposition
of another 111-month total prison term; (2) a June 11, 2012,
judgment reflects the imposition of another 111-month total
prison term; and (3) a June 19, 2012, amended judgment reflects
the imposition of yet another 111-month total prison term.
Parker did not note an appeal from these judgments.
Later, Parker filed a 28 U.S.C. § 2255 motion to vacate,
and the district court denied relief. Parker appealed, and we
concluded, in granting a certificate of appealability, as
follows: (1) that the district court lacked jurisdiction to
modify Parker’s sentence after June 6, 2012, and thus the
sentences issued in the June 11 and June 19 judgments were of no
effect and not subject to appellate review; (2) as to the
“operative” sentence for review -- a 61-month sentence on Counts
2 and 4 -- we determined that this sentence exceeded the
statutory maximum for those counts and noted that Parker had
preserved the right to appeal any sentence exceeding the
statutory maximum; and (3) that Parker was sentenced in
violation of the laws of the United States and that the record

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did not conclusively show he was not entitled to relief on his
contention that counsel rendered ineffective assistance.
Accordingly, by order entered on April 9, 2014, we vacated
Parker’s sentence and remanded. At the resentencing, the
district court again sentenced Parker to 111 months in prison.
II.
The Government makes three arguments that we cannot reach
the issue of whether the Government breached the plea agreement.
First, the Government contends that Parker has waived any
argument on appeal by focusing on the original sentencing, not
the resentencing. Parker correctly points out, however, that the
plea agreement, which is the subject of this appeal, applies to
both the original and subsequent sentencings.
The Government next argues that Parker has waived the
argument that it breached the plea agreement by arguing before
the district court that Counts 1, 3, 5, and 6 were groupable.
Although Parker’s actions before the district court can be
construed as acceptance of the grouping, his failure to object
to the grouping does not waive his claim that the Government
breached the plea agreement. See Puckett v. United States, 556
U.S. 129, 138 (2009).
Finally, the Government argues that the law-of-the-case
doctrine precludes review of Parker’s claim. Parker’s § 2255
motion argued that the Government breached the plea agreement by

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applying the two-level enhancement for more than ten victims. We
dismissed that claim in our prior order, specifically holding
that “[t]he Government did not breach the plea agreement by
agreeing with the presentence report’s recommendation to apply a
two-level enhancement to Parker’s offense level for an offense
involving ten or more victims.” J.A. 216-17. The law-of-the-case
doctrine applies to “the same issues in subsequent stages in the
same case.” United States v. Aramony, 166 F.3d 655, 661 (4th
Cir. 1999). Whether the Government breached the plea agreement
by agreeing with the two-level enhancement and whether the
Government breached the plea by supporting the district court’s
grouping of the fraud counts are separate issues. Our previous
decision held only that the Government did not breach the
agreement with regard to the two-level enhancement. Therefore,
the law-of-the-case doctrine does not apply to Parker’s argument
that the Government breached the plea agreement by agreeing to
the grouping of the fraud counts.
III.
We come, then, to the core of Parker’s present argument:
that the Government breached the plea agreement by not
recommending that Counts 1, 3, 5, and 6 be treated individually,
rather than grouped. Whether the Government breached the plea
agreement is a question of law that we review de novo. United
States v. Lopez, 219 F.3d 343, 346 (4th Cir. 2000). “[A]

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defendant alleging the Government’s breach of a plea agreement
bears the burden of establishing that breach by a preponderance
of the evidence.” United States v. Snow, 234 F.3d 187, 189 (4th
Cir. 2000). Because Parker did not raise this objection before
the district court, our review is for plain error. See United
States v. Mastrapa, 509 F.3d 652, 657 (4th Cir. 2007).
Accordingly, Parker must show “(1) an error, (2) that is plain,
(3) that affects the defendant's substantial rights, and (4)
that seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Dawson,
587 F.3d 640, 645 (4th Cir. 2009).
“[W]e will not hold the Government to promises that it did
not actually make in the plea agreement.” United States v. Obey,
790 F.3d 545, 547 (4th Cir. 2015). The record does not reflect
that the Government promised Parker that the fraud counts would
be treated separately. Instead, the plea agreement stated that
“the United States and the defendant will recommend to the Court
that at least the following provisions of the Sentencing
Guidelines apply,” J.A. 58, and then listed each of the four
fraud counts and each count’s applicable base offense level and
loss amount. Despite Parker’s arguments to the contrary, the
plea agreement does not demonstrate that the parties understood
the four grouped counts would be treated individually. Plea
agreements are construed using principles imported from contract

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law, United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997),
and are interpreted by the agreement’s “plain language in its
ordinary sense,” United States v. Jordan, 509 F.3d 191, 195 (4th
Cir. 2007). It is undisputed that U.S.S.G. § 2B1.1 is the
applicable Guideline for all four fraud counts, and Parker
concedes that the counts were subject to mandatory grouping. See
U.S.S.G. § 3D1.2 (“When the offense level is determined largely
on the basis of the total amount of harm or loss,” counts “shall
be grouped together into a single Group” under subsection (d),
which expressly lists § 2B1.1 as a Guideline for which offenses
covered by it “are to be grouped”). Both defense counsel and the
Government are familiar with sentencing procedures. See J.A. 32
(district judge noting during the colloquy that defense counsel
“is a very experienced criminal defense attorney”). Thus, the
logical reading of the plea agreement is that it does not
address whether the fraud counts would be grouped because both
parties knew they had to be as a matter of law. Furthermore, if
the parties were going to stipulate to something that is
contrary to the Guidelines, it is reasonable to expect the plea
agreement to state that explicitly. Parker has presented no
evidence demonstrating that the Government promised to treat the
fraud counts individually, and the plea agreement contained no
language precluding the Government from arguing that the fraud

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counts should be grouped. Accordingly, we find that the
Government did not plainly breach the plea agreement.
IV.
Even if one were persuaded by the rather awkward phrasing
of the plea agreement that the Government committed a breach of
the agreement, any such breach is, manifestly, harmless in the
circumstances of this case. An error is harmless and will not be
corrected if “it did not affect the defendant’s substantial
rights.” United States v. Lewis, 633 F.3d 262, 271 (4th Cir.
2011). “A defendant’s substantial rights are affected if the
error affected the outcome of the district court proceedings.”
Dawson, 587 F.3d at 645 (internal quotation marks omitted).
The district court correctly grouped the fraud counts, as
it was required to do under the Sentencing Guidelines. Moreover,
the trial court has sentenced Parker to 111 months numerous
times, providing lengthy explanations for its exercise of
discretion. At the first sentencing, the district court wanted
to impose a 111-month sentence but incorrectly apportioned the
counts. After we vacated the sentence and ordered resentencing,
the district court again sentenced Parker to 111 months but
reallocated the months among the counts to be within the
statutory maximums. Because the district court properly grouped
the counts and repeatedly imposed a 111-month sentence, Parker
cannot plausibly establish that his substantial rights were

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affected by the Government’s alleged breach of the plea
agreement. See generally United States v. Savillon–Matute, 636
F.3d 119, 123 (4th Cir. 2011) (applying “assumed error
harmlessness inquiry” approach in analyzing challenge to
sentence).
V.
For the foregoing reasons, the Government’s motion to
dismiss is GRANTED and this appeal is
DISMISSED.

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