U.S. v. Parker, 93-2006

• Decision Date: 24 May 1994
• Docket Number: No. 93-2006,93-2006
• Citation: 25 F.3d 442
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clinton S. PARKER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 442

25 F.3d 442

UNITED STATES of America, Plaintiff-Appellee, v. Clinton S. PARKER, Jr., Defendant-Appellant.

No. 93-2006.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 7, 1994.

Decided May 24, 1994.

Andrew B. Baker, Jr., Asst. U.S. Atty., Daniel L. Bella (argued), Office of U.S. Atty., Dyer, IN for plaintiff-appellee.

Willie Harris, Karen M. Freeman-Wilson (argued), Gary, IN, for defendant-appellant.

Before COFFEY, FLAUM and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Clinton S. Parker ("Parker"), an Indiana State Trooper, was named along with four co-defendants in an eleven-count indictment. Count I charged him under 18 U.S.C. Sec. 371 with conspiring to interfere with commerce On appeal, Parker asks us to reverse and remand for resentencing on the grounds that the trial court erred in enhancing his sentence upon finding that he (1) was a leader or organizer under U.S.S.G. Sec. 3B1.1(a); (2) obstructed justice under U.S.S.G. Sec. 3C1.1; and (3) abused a position of trust under U.S.S.G. Sec. 3B1.3.

by committing a series of four armed robberies, with conspiring to transport stolen motor vehicles in interstate commerce, and with conspiring to receive or possess stolen vehicles in interstate commerce. Counts II through V charged him with interfering with commerce by means of four armed robberies in violation of 18 U.S.C. Secs. 1951-52. Counts VI through IX charged him with the use of a firearm in four crimes of violence in violation of 18 U.S.C. Secs. 924(c)(1) and (2). Counts X and XI charged him with possession of a stolen vehicle that had crossed state lines in violation of 18 U.S.C. Secs. 2313 and 2. Pursuant to a plea agreement, Parker pled guilty to Counts I, II, III, IV and VI. He was sentenced to sixty months in prison on Count I; to 210 months on each of Counts II, III and IV, all to be served concurrently with each other and concurrently with the term imposed on Count I; and to sixty months on Count VI, to be served consecutively to the terms imposed on the first four counts for a total term of 270 months. The defendant was also ordered to serve three years of supervised release, to make restitution in the amount of $137,545, and to pay a special assessment of $250.

We affirm in part and reverse in part.

I. BACKGROUND

The appellant admits to having helped plan and participate in four armed robberies while employed by the State of Indiana as a State Trooper. The first armed robbery took place in July 1991 when Parker, acting as a leader, had his accomplices hold up an Illinois Armored Car courier at a Builders Square store in Hammond, Indiana. The defendant Parker initially discussed the possibility of robbing this armored car courier with co-defendant Edgar Rogers ("Rogers"), who in turn recruited four additional co-conspirators.

Parker, whose wife was employed at Builders Square, was aware of the Armored Car courier's schedule, procedures and the amount of money he would be carrying, and conveyed this information gained from his wife to his co-conspirators. While assisting in planning the robbery, Officer Parker estimated the police response time for the robbery and also provided his accomplices with a police scanner, his service revolver and his personal firearm. Parker also admits to using his patrol car to transport the conspirators to various sites where he permitted them to "test fire" his weapons and to engage in target practice. Finally, Parker accompanied his confederates on at least two of four "dry runs" in which they rehearsed their planned holdups. On the day of the initial robbery, the defendant remained behind while Rogers drove a stolen getaway car to the scene of the crime, where two other co-defendants entered the Builders Square and robbed the Armored Car courier at gunpoint. The gunmen divided the loot, setting aside a smaller share for Parker on the theory that he was entitled to less money because he had taken fewer risks. The robbers subsequently returned the weapons to Parker.

Several months later, Officer Parker drove Rogers to Illinois in order that he might steal a van for the second robbery, and once again he loaned his police service revolver. The second holdup of the same Armored Car courier at the same Builders Square store in Hammond took place in October 1991. As in the first robbery, Parker again shared in the proceeds although he was not physically present at the scene of the robbery.

Parker and his fellow conspirators next decided to rob a ValuMart store in Gary, Indiana, in their statewide crime spree. In January 1992, the defendant drove Rogers to Illinois to steal another getaway car. Shortly thereafter, while in uniform and on duty, Officer Parker met with his co-conspirators some distance from the holdup scene, gave them his police revolver as well as a police scanner and waited in his patrol car for their return. After the robbery, Rogers and the three other accomplices once again rendezvoused with Parker. All except Rogers got out of the getaway car and entered Parker's The fourth and final robbery was accomplished in February 1992 after Parker drove Rogers to Griffith, Indiana, where Rogers stole a pickup truck to use as another getaway vehicle. While Rogers served as the getaway driver, two other conspirators robbed an Armored Car courier at a K-Mart in Merrillville, Indiana. Once again, Parker did not accompany his co-conspirators to the scene of the crime, but lent them his police revolver as well as his police scanner and remained at home during the robbery. One of the robbers, Lawrence Richmond, was caught while trying to escape on foot with the stolen cash. According to the presentence report, Parker was arrested on May 22, 1992 and was subsequently indicted on June 22, 1992 by a grand jury on eleven counts in connection with the above crimes.

vehicle. Defendant Parker and Rogers then drove their respective cars to a remote location where they torched the stolen getaway vehicle with a warning flare taken from the squad car. Parker then conveyed his accomplices in his police vehicle to the residence of one of the conspirators, where they divided the loot.

Parker then agreed to plead guilty to five counts and to cooperate with the U.S. Attorney by providing additional information concerning the crimes and testifying truthfully at any future trials. The government in turn agreed to dismiss the remaining six counts at the time of sentencing. The court accepted the defendant's guilty pleas to five counts, and Parker thereafter testified on behalf of the government at the trial of co-defendant Roy Lee Vinson, Jr. ("Vinson"). Parker's sentencing hearings were held in March and April 1993, and at this time the court granted the government's motion to dismiss the remaining six counts in the indictment and reduced Parker's base offense level by two levels to reflect his acceptance of responsibility. The court also increased the defendant's base offense level by four levels for being an organizer/leader of a criminal activity involving at least five participants (Guideline Sec. 3B1.1); by two levels for obstructing justice (Guideline Sec. 3C1.1), and by two levels for abusing a position of trust (Guideline Sec. 3B1.3), resulting in an adjusted offense level of 37 and a prison sentence totaling 270 months.

II. ISSUES

The defendant contends that the trial court erred in increasing his offense level for being a leader or organizer of criminal activity involving five or more participants under Guideline Sec. 3B1.1(a), for obstructing justice under Guideline Sec. 3C1.1, and for abusing a position of trust under Guideline Sec. 3B1.3.

III. DISCUSSION

When reviewing sentences imposed under the Sentencing Guidelines, courts of appeal shall:

"Give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts."

18 U.S.C. Sec. 3742(e).

A. "Organizer or Leader" Role

Guideline Sec. 3B1.1(a) provides that a defendant's offense level should be increased by four levels based on his role in the offense "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." The trial court stated at Parker's sentencing hearing that it found him to be an organizer and leader within the meaning of Guideline Sec. 3B1.1(a) because he

"[d]id meet with the co-defendants in advance of the robberies. He outlined plans for the Builders Square and ValuMart robberies. He provided the weapons used in the robberies. He was familiar with the layouts of Builders Square and the ValuMart establishments, and the courier procedures and the security at the Builders Square; and he conveyed all of the information to his co-defendants. Also, the number of people that were involved in the conspiracy, which encompasses all of the robberies involved in this case, totaled six participants."

The defendant carries a heavy burden in seeking to overturn the district court's finding on this issue, for we have held that the trial judge's determination of whether a defendant was an "organizer" or "leader" under Guideline Sec. 3B1.1(a) is "a fact question for the sentencing court to resolve, and we will not disturb it absent a showing of clear error." United States v. McKenzie, 922 F.2d 1323-1329 (7th Cir.1991) (citations omitted). This standard of review makes clear that we may not hold that the trial judge erred unless we are of the "definite and firm conviction that a mistake has been committed." United States v. Brown, 900 F.2d 1098, 1102 (7th Cir.1990) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). Moreover, "where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly...