US v. Rushaun Parker, No. 13-4030 (4th Cir. 2014)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4030 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUSHAUN NECKO PARKER, a/k/a Duke, Parker, a/k/a Rushuan Nikoe Parker, a/k/a Rushuan Nekoe Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Malcolm J. Howard, Senior District Judge. (7:10-cr-00011-H-1) Submitted: January 14, 2014 Decided: February 11, 2014 Before WILKINSON, DIAZ, and FLOYD, Circuit Judges. Affirmed and remanded by unpublished per curiam opinion. Charles R. Brewer, Asheville, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Rushaun Necko Parker appeals the 384-month sentence imposed by the district court after his initial sentence was vacated pursuant to United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Government s motion In our prior opinion, we granted the to remand for resentencing, reversed Parker s conviction under 18 U.S.C. § 922(g) (2012), affirmed his other convictions, vacated the sentence, and remanded to the district court. United States v. Parker, 465 F. App x 283 (4th Cir. 2012) (No. 11-4647). On remand, the probation officer issued a memorandum to the district court that described the changes to Parker s Guidelines range as a result of Simmons and this court s remand. Parker s offense level was unaffected because it was calculated based on drug quantity, but his criminal history category was lowered to offender. based on IV from VI because he was no longer a career The sentencing range for Counts One, Two, and Four, a total offense level of thirty-eight and criminal history category IV, was 324 to 405 months of imprisonment. The probation officer also noted the revised statutory imprisonment ranges effected by the FSA, which capped the sentence for Counts One, Two, and Five at 480 months and for Count Three at 240 months. Count Six required a consecutive sixty-month term of 2 imprisonment, and Count Seven carried a statutory maximum of 240 months. (J.A. 117-18). At the resentencing hearing, the district court stated the revised sentencing sentencing parameters sentencing. ranges that and other occurred changes since to the Parker s first The court briefly summarized the facts of the case and stated that it was considering a sentence at the lower end of the revised Guidelines range. When the court solicited argument from counsel as to an appropriate sentence, Parker s counsel stated that Parker desired a continuance. court denied the request. The district Counsel then summarily restated his objections from the initial sentencing hearing, and the district court noted the objections for the record. argument from the parties and allocution The court heard from Parker, and sentenced Parker to a total of 384 months of imprisonment. On appeal, Parker argues that the district court improperly calculated the Guidelines sentencing range, erred in denying his motion for a continuance of the resentencing hearing, erred in refusing to review and consider the objections to the original resentencing presentence investigation report hearing, and that the written court reviews a sentence for under an at the judgment is procedural and erroneous. This substantive reasonableness 3 abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). evaluating procedural district court reasonableness, properly calculated we the consider whether defendant s In the advisory Guidelines range, gave the parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012) factors, selected a sentence supported by the record, and sufficiently explained the selected sentence. Gall, 552 U.S. at 49-51. If the sentence is free of procedural error, we review it substantive for reasonableness, totality of the circumstances. sentence within a properly substantively reasonable. taking Id. at 51. calculated into account the We presume that a Guidelines range is United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). In his first argument, Parker asserts that, as a result of the Fair Sentencing Act of 2010 (FSA), his Guidelines calculations should have changed, resulting in a lower total offense level. that, in the This argument is meritless. original presentence The record reveals investigation report, the probation officer applied the 2010 edition of the Sentencing Guidelines, as amended by the emergency amendments promulgated pursuant These to the amendments required for FSA, which increased drug quantity were the effective quantities based offense November of levels Sentencing Guidelines Manual § 2D1.1(c) (2010). 4 crack 1, 2010. cocaine in U.S. Although the revised statutory punishments effected by the FSA were not applied at Parker s initial sentencing, the Guidelines revisions were clearly applied. Thus, there was no change to his Guidelines calculations at resentencing, except for the reduced criminal history imprisonment, category which and exceeded the the reduced statutory sentencing ranges caps under on the Guidelines. Parker also argues that the court erred in failing to reconsider his objections to the initial PSR at the resentencing hearing. Other than restating his objections, counsel did not request any further discussion or ruling by the court. Parker s claim is reviewed only for plain error. plain error, Parker must show: Thus, To establish (1) there is an error, (2) the error is plain, . . . (3) the error affects substantial rights . . . [and] the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Henderson v. United States, 133 S. Ct. 1121, 1126 (2013) (internal quotation marks affect and alterations a prejudicial, omitted). defendant s which means Generally, substantial that there for rights, must an it be a error must to be reasonable probability that the error affected the outcome . . . . United States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks omitted). 5 This sentence, the court has district recognized court on that, remand is when not it vacates bound by a its original sentencing determinations and may, but is not required to, reconsider those findings. Susi, 674 F.3d at 284. We conclude that the district court did not err in failing to sua sponte reconsider Parker s objections that were resolved at the initial sentencing hearing. Parker cites no authority for his argument that the court should have reconsidered its objections, and does not assert any specific objections that the court should have reconsidered, or assert any error in the court s resolution of hearing. those objections at the initial sentencing Finally, Parker s only assertion of prejudice is a general statement that the court s failure to specifically rule on objections that did not affect the sentencing range might prejudice Parker in the future. We conclude that the court did not err in determining Parker s sentencing range. Parker next argues that the district court erred in denying his motion to continue the resentencing hearing. We review this claim for an abuse of discretion, which occurs when the denial of a continuance is an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay. found, the defendant Even if such an abuse of discretion is must show that the prejudiced his case in order to prevail. 6 error specifically United States v. Copeland, 707 F.3d 522, 531 (4th Cir.) (internal quotation marks, citations, and alterations omitted), cert. denied, 134 S. Ct. 126 (2013). move for a underway. We find no abuse of discretion. continuance until the Parker did not resentencing hearing was The only reason stated for requesting a continuance was to provide additional time to work on a defense. previously convicted available. To the extent Parker wished for additional time to prepare specific Moreover, for a sentencing, preparation as by the jury, neither for which district so he there nor additional court was Parker was counsel no defense stated time was the issues noted, considered at resentencing were straightforward. any required. to be Parker failed to state a justifiable request for delay, and fails on appeal to demonstrate that the denial of a continuance prejudiced him in any way. Finally, Parker argues that the written judgment contains errors in that it states that, as to Counts One through Four, he was found guilty of a violation of 21 U.S.C. § 851 (2012) in addition to 21 U.S.C. §§ 841(a)(1) and 846 (2012). also asserts that the judgment erroneously states that He the offenses in Counts Two and Three ended on January 27, 2010, rather than the dates specified in the indictment, November 9, 2009, and December 1, 2009, respectively. The Government does not dispute the existence of these clerical errors, which the 7 district court may correct under Federal Rule of Criminal Procedure 36. Accordingly, we affirm Parker s sentence, but remand to the district court for the limited purpose of correcting the clerical errors specified above. 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 AND REMANDED 8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
