United States v. Parker

• Citation: 927 F.3d 374
• Decision Date: 18 June 2019
• Docket Number: No. 18-50058,18-50058
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Andrew Maxwell PARKER, Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

927 F.3d 374

UNITED STATES of America, Plaintiff - Appellee

v.Andrew Maxwell PARKER, Defendant - Appellant

No. 18-50058

United States Court of Appeals, Fifth Circuit.

FILED June 18, 2019

Joseph H. Gay, Jr., Mara Asya Blatt, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff - Appellee.

Kristine Arlitt, Esq., Attorney, San Antonio, TX, for Defendant - Appellant.

Before HAYNES, GRAVES, and HO, Circuit Judges.

HAYNES, Circuit Judge:

Andrew Parker was convicted of an assortment of fraud crimes more than a decade ago. Since then, he has revisited our court at least ten times through a combination of a direct appeal, appeals from 28 U.S.C. § 2255 denials, requests for authorization to file successive § 2255 motions, and a petition for writ of mandamus. Though the procedural vehicles have changed, his arguments have not, and we have repeatedly denied his requests for certificates of appealability (COA) and authorization to file successive § 2255 motions.

Parker once again tried his luck with these arguments before the district court, filing another motion under § 2255. The district court dismissed the motion for lack of jurisdiction because Parker failed to receive authorization from our court to file a successive petition under § 2255. Parker then requested reconsideration, which the district court denied. He has now appealed, implicitly requesting a COA. We DENY Parker a COA, DISMISS his appeal for lack of jurisdiction, and sanction him for appealing his collateral attack on his conviction.

But Parker has also appealed a new issue not foreclosed by his prior efforts. In the district court, he challenged the amount of restitution he was ordered to pay. Parker argues that the victims of his crimes have recovered some of their damages through a civil judgment. The statutes governing restitution grant Parker the right to reduce his restitution order based on subsequent civil judgments. But Parker failed to present necessary evidence to succeed on his claim. We thus AFFIRM the district court’s denial of his request to quash the Government’s writ of execution.¹

I. Background

Andrew Parker used his company, San Antonio Trade Group, Inc. ("SATG"), to defraud the Export-Import Bank of the United States ("Ex-Im Bank"). He collaborated with people in Mexico to seek loans from United States companies based on lies and forged documents. Ex-Im Bank insured and guaranteed the loans. Once the loans were insured and guaranteed, Parker diverted millions of dollars in loan money to himself rather than for the stated purposes. Along the way, he committed wire fraud, money laundering, tax evasion, tax fraud, and conspiracy.

Eventually Parker was caught and pleaded guilty to those crimes under a written plea agreement. In accordance with the plea agreement, the district court sentenced Parker to a term of imprisonment and supervised release and ordered Parker to pay $ 10 million in restitution.

Since then, Parker has doggedly tried to undo his conviction. Parker’s first attack on his plea agreement and conviction came when he appealed his conviction. See United States v. Parker , 372 F. App'x 558 (5th Cir. 2010) (per curiam). He argued that the indictment, plea agreement, and plea colloquy did not set out facts that proved he committed some of the alleged crimes. Id. at 560–62. We rejected his arguments and affirmed. Id. at 563.

Less than a year later, Parker filed his first § 2255 motion in April 2011. His arguments ranged wide, including many related to the arguments he makes in this appeal: the Government committed a Brady² violation or elicited or permitted false evidence, and his counsel was ineffective by failing to challenge the wire fraud counts for lack of an interstate nexus. The district court identified and rejected those arguments.³ Parker sought reconsideration, which was also denied. We denied Parker a COA, concluding that all reasonable jurists would agree that the district court’s order was correct.

Between that motion and the motions leading to this appeal, Parker filed numerous other motions in the district court. The district court rejected all those motions on the grounds that they were unauthorized successive motions, see § 2255(h) (requiring a defendant who files a "second or successive motion" to receive authorization to file it from the proper court of appeals in accordance with § 2244), or, to the extent they were not, they were barred by § 2255 ’s one-year period of limitations, see § 2255(f). Each time Parker appealed the district court’s order, and each time we denied him a COA. The most recent time we addressed one of Parker’s appeals, a judge of this court imposed sanctions on him for filing frivolous appeals.

While he filed district court motions, Parker also twice requested that our court grant him authorization to file a successive motion. We denied authorization both times—once because Parker had not identified an exception to the successive motion bar, see In re Parker , 575 F. App'x 415 (5th Cir. 2014), and another time because the evidence he pointed to did not satisfy the "newly discovered evidence" exception to that bar.

In all, we have addressed Parker’s case eight times: one affirmance on direct appeal, five denials of COAs, and two denials of requests for authorization to file a successive motion.⁴

Undeterred, Parker tried again. After each of his previous attempts failed, Parker filed another motion under § 2255. The district court again dismissed the motion as an unauthorized successive motion. Parker then requested reconsideration, which was denied. He then requested reconsideration of the district court’s denial of reconsideration. The district court again denied reconsideration. Parker appealed from the order denying reconsideration of the order denying reconsideration of the § 2255 motion, which we now call the Order Denying Reconsideration of Reconsideration of § 2255.

While he re-pressed his § 2255 motion, Parker also filed a new type of motion. Parker, now released from prison,⁵ moved to quash the Government’s writ of execution used to enforce the restitution order against him. Though the type of motion was new, the arguments mostly were not. They largely followed the exact same arguments made in Parker’s previously rejected § 2255 proceedings.

Parker did, however, make one new argument specific to the motion to quash. He argued that the Government had collected money that had not been credited against the restitution order. The district court held a hearing on the motion to quash and permitted Parker to present evidence in support of his arguments. Parker presented evidence only about his argument that the district court lacked jurisdiction over him because there was no interstate wire transfer. He did not present any evidence that the Government had collected money on his restitution order. Less than two weeks after the hearing, the district court denied Parker’s motion to quash.

Parker moved for reconsideration and later filed a supplement to the motion. The supplement focused heavily on his new argument, particularly that Ex-Im Bank had already recovered money that should be credited against his restitution. It identified an affidavit submitted with one of his previous § 2255 motions that stated that Ex-Im Bank had collected money from entities related to his scheme. The district court denied the motion for reconsideration and its supplement, orders which we collectively call the Orders Denying Quash Reconsideration. Parker appealed the Orders Denying Quash Reconsideration, which we consolidated with his other appeal.

II. Discussion

A. Collateral Attack on Conviction

We begin by dismissing for lack of jurisdiction Parker’s appeals to the extent they challenge his previous conviction. Those aspects of his motions should be treated as motions for relief under § 2255, regardless of what they are titled. See Gonzalez v. Crosby , 545 U.S. 524, 530, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) ; United States v. Hernandes , 708 F.3d 680, 681–82 (5th Cir. 2013). When a defendant appeals such orders, he must first receive a COA. See 28 U.S.C. § 2253(c)(1)(B). The absence of a COA deprives this court of jurisdiction to address the merits of those arguments. Miller-El v. Cockrell , 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ("[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners."). To receive a COA, "a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Id. (brackets and internal quotation marks omitted) (quoting Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ).

Reasonable jurists would all agree that the district court lacked jurisdiction because Parker had not received authorization to file a successive § 2255 motion. Parker previously requested, and was denied, authorization to file a successive § 2255 motion making the same arguments he made below and now makes on appeal. See In re Parker , No. 14-50911 (5th Cir. Nov. 10, 2014). In denying the motion for authorization, we concluded that "[a]ll of Parker’s complaints involve matters that could have and should have been asserted on direct appeal or on appeal from the denial of the initial § 2255 motion." Id. We also concluded that he had not presented new evidence or established an actual innocence exception to the successive § 2255 bar. See id. Despite our denying authorization, Parker filed his motion anyway. The district court was therefore correct to deny Parker’s § 2255 motion for want of jurisdiction. See 28 U.S.C. § 2255(h) ; Crone v. Cockrell , 324 F.3d 833, 836–38 (5th Cir. 2003) (holding that a district court lacks jurisdiction to address a successive motion without...