United States v. Parks

995 F.3d 241

UNITED STATES of America, Appellee

v.Rashaun PARKS, also known as Ivy, Appellant

No. 19-3081

United States Court of Appeals, District of Columbia Circuit.

Argued January 28, 2021

Decided April 27, 2021

Jerry Ray Smith, Jr., appointed by the court, argued the cause and filed the briefs for appellant.

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.

Before: Henderson, Pillard and Wilkins, Circuit Judges.

Wilkins, Circuit Judge:

Appellant Rashaun Parks pleaded guilty to one count of knowingly transporting an individual to engage in prostitution, in violation of 18 U.S.C. § 2421(a). The District Court sentenced Parks to 22 months in prison and six years of supervised release. Parks challenges the supervised release portion of his sentence, arguing that his attorney provided ineffective assistance at sentencing by failing to object when the District Court relied on the wrong provision of the Federal Sentencing Guidelines. We agree with Parks, so we vacate the supervised release portion of his sentence and remand for resentencing.

I.

A.

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 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:

[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." 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. § 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 .

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 , ––– U.S. ––––, 141 S. Ct. 1127, 208 L.Ed.2d 564 (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, 123 S.Ct. 1690, 155 L.Ed.2d 714 (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 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...