13‐3484‐cr United States v. Parker

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of July, two thousand fourteen.

PRESENT: GUIDO CALABRESI, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges.

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UNITED STATES OF AMERICA, Appellee,

v. 13‐3484‐cr

MALCOLM PARKER, Defendant‐Appellant.

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FOR APPELLEE: Michael P. Drescher, Paul J. Van de Graaf, Assistant United States Attorneys, for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, Vermont.

FOR DEFENDANT‐APPELLANT: John L. Pacht, Emily Bayer‐Pacht, Hoff Curtis, P.C., Burlington, Vermont.

Appeal from the United States District Court for the District of Vermont

(Reiss, Ch. J.).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment is AFFIRMED.

Defendant‐appellant Malcolm Parker appeals from an amended judgment

entered on October 8, 2013 in the United States District Court for the District of

Vermont following his plea of guilty to one count of conspiracy to commit wire fraud,

in violation of

, and one count of filing a false tax document, in violation

of

.

The district court determined that Parkerʹs Criminal History Category was

I and his total offense level was 29. Parkerʹs Guidelines range would have been 87 to

108 months, but the crimes in question carried a statutory maximum of 72 monthsʹ

imprisonment. Hence, the Guidelineʹs sentence was 72 months, and, after granting the

Governmentʹs § 5K1.1 motion, the district court sentenced Parker principally to 55

monthsʹ imprisonment.

On appeal, Parker challenges his sentence on both procedural and

substantive grounds. We assume the partiesʹ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

-2- A. Procedural Reasonableness

A district court procedurally errs when it does not consider the factors

outlined in

(a) or ʺrests its sentence on a clearly erroneous finding of

fact.ʺ United States v. Cavera,

(2d Cir. 2008) (en banc). Unless the

record suggests otherwise, however, ʺwe presume . . . that a sentencing judge has

faithfully discharged her duty to consider the statutory factors.ʺ United States v.

Fernandez,

(2d Cir. 2006).

Here, Parker argues that the district court erred in its consideration of the

specific deterrence factor under

(a)(2)(C) when it found he was likely to

reoffend. He argues that the court improperly found that he was a risk to the public

because he had delusional beliefs that might cause him to reoffend. We conclude,

however, that the district court acted well within its discretion in considering the need

to protect the public. At the sentencing, the district court voiced its concerns that Parker

still wanted to make the film that had been the centerpiece of his fraudulent investment

scheme. The district court pointed to Parkerʹs testimony and a letter he submitted to the

court which stated, ʺI still believe in the fundamental power that drew so many of us to

this project in the first place,ʺ and ʺ[i]f allowed by the federal court and the bankruptcy

court, I still very much want to complete the Birth of Innocence film.ʺ The district court

also noted that Parker continued with the scheme even after being told by the State of

Vermont to stop soliciting funds, and went so far as to ask his victims to backdate

-3- checks so they appeared to have been written before the warnings were issued. Thus,

we conclude that the district courtʹs concern about protecting the public was entirely

reasonable.

B. Substantive Reasonableness

A sentence imposed by the district court is substantively unreasonable

only if it ʺcannot be located within the range of permissible decisions.ʺ Cavera,

(internal quotation marks omitted). Accordingly, we will set aside sentencing

decisions only in ʺexceptional cases,ʺ as we will not substitute our judgment for that of

the district court. Id.; see also Fernandez,

.

Parker argues that his sentence was substantively unreasonable because

the district court failed to properly credit the significance of his cooperation. He notes

that the government recommended a more substantial reduction than the district court

allowed. His arguments fail.

The district courtʹs decision to downwardly depart a total of 17 months

from the Guideline sentence of 72 months was reasonable. In considering the

significance and usefulness of the defendantʹs assistance, including the ʺtruthfulness,

completeness and reliabilityʺ of the information he provided, the district court

expressed reservations about how helpful his cooperation had been to law enforcement,

how truthful a witness he was at a co‐defendantʹs sentencing hearing, and how effective

a witness he would have been at trial.

-4- In light of all the circumstances presented, we conclude that the district

courtʹs sentence was substantively reasonable.

We have considered Parkerʹs remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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