U.S. v. Parker, 90-1171
| Citation | 902 F.2d 221 |
| Decision Date | 27 April 1990 |
| Docket Number | No. 90-1171,90-1171 |
| Parties | UNITED STATES of America v. PARKER, Darius, Appellant. . Submitted Pursuant to Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Larry A. Colston, Philadelphia, Pa., for appellant.
Michael M. Baylson, U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Jeffrey M. Klink, Asst. U.S. Atty., Philadelphia, Pa., for appellee.
Before BECKER and GREENBERG, Circuit Judges and DUMBAULD, District Judge. *
Appellant Darius Parker appeals from a judgment of sentence imposed on February 22, 1990, following his guilty plea to both counts of a two-count indictment charging him with knowingly and intentionally distributing a controlled substance in violation of 21 U.S.C. Sec. 841(a)(1). The parties agree that under the sentencing guidelines the total offense level was 10 and his criminal history category was I, so that in the absence of a downward departure the following range of sentence would have been applicable: six to 12 months imprisonment, three to five years supervised release, $2,000 to $2,000,000 fine, $91.66 cost of supervision and a $50 special assessment on each count. However, the Government served a motion under guideline Sec. 5K1.1 stating that Parker had substantially cooperated, so that it requested that the court depart from the minimum guideline ranges applicable in this case. The court sentenced Parker to concurrent 36 months terms of probation on the two counts but as a condition of probation required him to reside for six months in the Greater Philadelphia Center for Community Corrections. During that time, however, he was permitted to be employed and was to be released to go to his employment but was to be in the Center each night. No fine or period of supervised release was imposed and no restitution was required but a special assessment of $50 on each count was made.
Parker appeals, asserting that because the six months confinement as a condition of probation is the essential equivalent of the minimum sentence under the guidelines, there was no downward departure, the government's motion was ignored, and an unreasonable sentence was imposed. Thus, he requests that we vacate the sentence and remand the matter for resentencing. We will dismiss the appeal.
Under 18 U.S.C. Sec. 3563(b)(12), the court as a condition of probation may require a defendant to reside at a community...
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