United States v. Parker

• Decision Date: 05 April 2022
• Docket Number: 20-CR-00224-2 (PMH),21-CV-09558 (PMH)
• Parties: UNITED STATES OF AMERICA, v. DARREN PARKER, Defendant.
• Court: U.S. District Court — Southern District of New York

UNITED STATES OF AMERICA, v. DARREN PARKER, Defendant.

Nos. 21-CV-09558 (PMH), 20-CR-00224-2 (PMH)

United States District Court, S.D. New York

April 5, 2022

MEMORANDUM OPINION AND ORDER

PHILIP M. HALPERN, United States District Judge.

Darren Parker (“Parker”) moves pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (the “Petition”). Liberally construed Parker's claims are summarized as follows: (1) Parker received ineffective assistance of counsel; (2) this Court lacked subject matter jurisdiction; (3) the statute under which he was convicted is unconstitutional; (4) the indictment was defective; and (5) his due process rights were violated. (Civ. Doc. 1, “Pet.”).^[1] Parker has also filed a pro se motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (the “Motion”) on the grounds that he has a serious physical or medical condition and is at increased risk of severe illness should he contract the COVID-19 virus again. (Crim. Doc. 115, “Mtn.”; Crim. Doc. 117 “Supp. Mtn.”).

Parker is currently serving a 60-month sentence at FCI Danbury (“Danbury”), a low-security federal correctional institution, after having been convicted on October 21, 2021 following his guilty plea pursuant to a plea agreement, of conspiracy to distribute 40 grams and more of mixtures and substances containing a detectable amount of fentanyl. When he filed the Petition and the Motion, Parker was housed at the Westchester County Jail (“WCJ”) and has since been transferred to Danbury, a Federal Bureau of Prisons (“BOP”) facility.

For the reasons set forth below, the motion for relief under 28 U.S.C. § 2255 is DENIED and the Petition is DISMISSED. The Court further concludes that a reduction in Parker's sentence is neither “consistent with the applicable policy statements issued by the Sentencing Commission ” 18 U.S.C. § 3582(c)(1)(A)(i), nor supported by the “factors set forth in section 3553(a), ” id. § 3582(c)(1)(A), and the Motion is, accordingly, DENIED.

BACKGROUND^[2]

Parker was part of an active and industrious narcotics conspiracy in Poughkeepsie, New York. (PSR ¶ 32). On March 25, 2020, agents from the U.S. Drug Enforcement Administration (“DEA”) arrested Parker on an Indictment, which charged him with, inter alia, conspiring to distribute and possess with intent to distribute fentanyl in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. (PSR ¶¶ 1-3, 17). He had been intercepted over wiretaps ordering large amounts of controlled substances from his supplier, co-defendant Michael Nicholas. (Id. ¶¶ 1416). The Government's investigation revealed that Parker has ordered at least approximately 220 grams of fentanyl. (Id.). Parker was released on March 25, 2020 on an unsecured bond. (Crim. Doc. 10). On September 28, 2020, while on bail, Parker was arrested and charged with “Obstructing Governmental Administration 2nd Degree; [and] Aggravated Unlicensed Operation - Alcohol Related and Traffic Device Violation - Passing a Red Light.” (PSR ¶ 8).

On November 10, 2020, Parker appeared before this Court and pled guilty to the lesser included offense charged in Count One of the Indictment pursuant to a written plea agreement dated August 21, 2020. (Civ. Doc. 10-2, “Plea Tr.”). After placing Parker under oath, the Court conducted a thorough allocution of him. (Id. at 5-9). Among other things, Parker affirmed that he had attended school through the eleventh grade; that the medications he was taking for anxiety did not affect his ability to understand the proceedings; and that in the past 24 hours, he had not consumed any drugs, alcohol, pills, or medicine, apart from his prescribed medications and one beer. (Id. at 7-8). Parker further affirmed that his mind was clear and that he understood what was happening. (Id. at 8).

Parker confirmed that he had “enough time and opportunity” to discuss the case with his attorney and that he was satisfied with his attorney's representation of him. (Id. at 8-9). The Government and defense counsel likewise represented that they had no doubts as to Parker's competence to plead guilty. (Id. at 6). Accordingly, the Court found that, on the basis of Parker's responses to the Court's questions, its observations of his demeanor, and the views of counsel, Parker was fully competent to enter an informed plea. (Id. at 9).

Under the terms of the August 21, 2020 plea agreement which Parker signed on November 10, 2020 (id. at 20-21; Civ. Doc. 10-1, “Plea Agreement” at 7), among other things, the Government agreed to accept a guilty plea allocution from Parker to conspiring to distribute and possess with intent to distribute 40 grams and more of mixtures and substances containing a detectable amount of fentanyl in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. (Plea Tr. at 14). The parties stipulated to a base offense level of 26 under the United States Sentencing Guidelines (the “Sentencing Guidelines”) for an offense involving at least 160 grams but less than 280 grams of fentanyl; a final offense level of 23; seven criminal history points; and a Stipulated Sentencing Guidelines Range of 70 to 87 months' imprisonment, with a mandatory minimum statutory term of 60 months' imprisonment. (Id. at 22; see generally Plea Agreement).^[3] Parker admitted the forfeiture allegations with respect to Count One of the Indictment and agreed to forfeit a sum of money equal to $14, 300, and consented to the entry of the Consent Order of Forfeiture annexed to the plea agreement. (Plea Tr. 23-26, Plea Agreement at 2).

Parker also stipulated in the plea agreement that he would “not file a direct appeal; nor bring a collateral challenge, including but not limited to an application under Title 28, United States Code, Section 2255 and/or Section 2241; nor seek a sentence modification pursuant to Title 18, United States Code, Section 3582(c), of any sentence within or below the Stipulated Guidelines Range of 70 to 87 months' imprisonment, ” or “any term of supervised release that is less than or equal to the statutory maximum.” (Plea Tr. at 23; Plea Agreement at 5). In addition, Parker agreed to “waive[] any and all right to withdraw his plea or attack his conviction, either on direct appeal or collaterally, on the ground that the Government has failed to produce any discovery material, Jencks Act material, exculpatory material pursuant to Brady v. Maryland, 373 U.S. 83 (1963), other than information establishing the factual innocence of the defendant, or impeachment material[.]” (Plea Tr. at 23; Plea Agreement at 5).

The Court, at the November 10, 2020 hearing, conducted a thorough colloquy pursuant to Federal Rule of Criminal Procedure 11 to determine whether the plea was knowing and voluntary and whether there was a factual basis for the plea. (See generally Plea Tr.). The Court confirmed that Parker understood the rights he was giving up by pleading guilty, and that he would be sentenced on the basis of his guilty plea. (Id. at 9-12). Parker acknowledged that he understood he was giving up those rights, except for his right to counsel (Id. at 12). The Government then, at the Court's direction, set forth the elements of the offense to which Parker was pleading guilty. (Id. at 14-15). The Court advised Parker of the maximum penalties he would face as a result of his guilty plea and confirmed that he understood he faced a five-year mandatory minimum sentence. (Id. at 16-17).

The Court confirmed that Parker understood that, when imposing a sentence, the Court would consider the Sentencing Guidelines along with the factors set forth in 18 U.S.C. § 3553(a), and could impose a sentence that was higher or lower than that called for by the Sentencing Guidelines. (Id. at 18-20). Parker confirmed that he understood that he would not be permitted to withdraw his guilty plea if the sentence differed from what he expected or from the Stipulated Guidelines Range set forth in the plea agreement. (Id. at 20).

The Court next confirmed that Parker had read the plea agreement, had discussed “every aspect of it” with his attorney, and understood it fully. (Id. at 21). Parker swore that apart from the plea agreement, no one had made him any promises or used any threats, force, or coercion to induce him to plead guilty or to enter into the plea agreement. (Id. at 21-22). The Court further confirmed that Parker understood that he was giving up his right to appeal or otherwise attack or challenge his conviction and sentence, as long as his sentence was within or below the Stipulated Guidelines Range. (Id. at 23).

The Government was asked to summarize its proof to ensure there was an adequate factual basis to support Parker's plea. (Id. at 27). The Government's proof included:

First, recording of intercepted calls with the defendant and a coconspirator; second, law enforcement testimony; third, evidence of controlled buys from co-conspirators in Poughkeepsie, New York; and fourth, toll records; all of which would establish beyond a reasonable doubt that, from at least in or about September 2018 up to and including in or about February 2020, the defendant agreed with others to distribute, and possess with intent to distribute, at least 40 grams of substances and mixtures containing fentanyl, in the Southern District of New York and elsewhere.

(Id.).

Parker affirmed that he heard the Government's summary of its proof, and that it was accurate. (Id.). Parker then made a factual allocution and explained that in January 2020 he had a conversation with other people about buying and selling controlled substances; that he participated in the illegal distribution of the controlled substance in the Poughkeepsie area; that he knew what he was doing was illegal; and that the “buy and sale that took place involved more...