United States of America v. Rashaun Parks

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

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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:

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[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.”

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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.

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§ 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.

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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

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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,

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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).

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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

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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

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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).

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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.

For the foregoing reasons, we vacate the supervised

release portion of Parks’s sentence and remand for

resentencing.