D.C. Circuit: Counsel’s Failure to Object to District Court’s Reliance Upon Wrong Sentencing Guideline Constitutes Ineffective Assistance
Rashaun Parks pleaded guilty to one count of knowingly transporting an individual to engage in prostitution in violation of 18 U.S.C. § 2421(a). The Probation Office prepared a presentence report (“PSR”). Citing 18 U.S.C. § 3583(k), the PSR called for a term of supervised release “not less than 5 [years], or life” for “any offense under ... [18 U.S.C. §] 2421.” The PSR also relied on U.S.S.G. § 5D1.2(b)(2), which provides for a term of supervised release “up to life, if the offense is ... a sex offense.” The Probation Office concluded from the latter provision that Parks’ conviction required a period of supervised release of “five years to life.”
At sentencing, defense counsel objected to application of the provisions of § 3583(k), arguing that the statute was written to address the exploitation of minors. Since none of Parks’ victims were minors, the statute was inapplicable in this case. Defense requested the district court impose two years of supervised release. However, counsel did not object to reliance upon the specific Guidelines provision cited in the PSR.
The judge remarked that the court “must impose a term of supervised release of five years to life” under the applicable statute and the Guidelines and confirmed that neither Parks nor the Government requested a departure.
Based upon the sentencing factors of 18 U.S.C. § 3553(a), the district court imposed a sentence of 22 months in prison followed by six years of supervised release. In arriving at the six years of supervised release, the judge observed that, on the one hand, Parks’ offense reflected that it was part of his lifestyle and that he didn’t appear to accept that his conduct was wrong. But on the other hand, Parks wasn’t the stereotypical pimp in that he “didn’t beat anybody up, etcetera, and that is true.”
On appeal, Parks argued that the district court relied on the wrong provision of the Guidelines due to an error in the PSR and that his counsel was ineffective for failing to detect the error and object.
The D.C. Circuit observed that the PSR’s reliance on U.S.S.G. § 5D1.2(b)(2) was in fact error. Application Note 1 to that Guideline defines “sex offense” as an offense “perpetrated against a minor,” but the facts of Parks’ case demonstrated that none of his victims was a minor.
To arrive at the correct Guidelines calculation, the Court began with U.S.S.G. § 5D1.2(a): “Except as provided in subsections (b) and (c), if a term of supervised release is ordered, the length of the term shall be ... (2) at least one year but not more than three years for a defendant convicted of a Class C or D felony....” Because Parks’ offense carries a maximum prison term between ten and 25 years, he was convicted of a Class C felony. 18 U.S.C. § 3559(a)(3).
But U.S.S.G § 5D1.2(c) requires a term of supervised release “not less than any statutorily required term of supervised release,” which in Parks’ case is five years to life. Application Note 6 reconciles the discrepancy between the Guidelines for supervised release and the statutory term for supervised release: if the relevant statute requires a term of supervised release from five years to life, “the term of supervised release provided by the guidelines is five years.”
The Court concluded that the Guidelines calls for just five years of supervised release for Parks’ offense.
The Sixth Amendment guarantees the right to effective assistance of counsel in all criminal cases. United States v. Burroughs, 613 F.3d 233 (D.C. Cir. 2010). To prevail on a claim of ineffective assistance of counsel (“IAC”), “a defendant must show that his lawyer’s representation was deficient in a way that caused him prejudice.” Id. Counsel’s performance is deficient if it falls below an objective standard of reasonableness and is prejudicial if there is at least a reasonable probability that it affected the outcome of the proceeding. Johnson v. Wilson, 960 F.3d 648 (D.C. Cir. 2020). While the D.C. Circuit generally does not address claims of IAC on direct appeal, it will do so where “the trial record ... conclusively shows that the defendant either is or is not entitled to relief.” United States v. Rashad, 331 F.3d 908 (D.C. Cir. 2003).
In the instant case, the record shows Parks was sentenced under an incorrect Guideline. Such an error is almost always sufficient to show a reasonable probability of a different outcome absent the error. Molina-Martinez v. United States, 136 S. Ct. 1338 (2016). Parks’ six years of supervised release is an upward departure from the correct Guideline. When a district court varies upward from the Guidelines, the court “must provide an explanation sufficiently compelling to support the degree of variance.” Gall v. United States, 552 U.S. 38 (2007). Here, the district court determined Parks’ conduct was less severe than that of the stereotypical pimp.
Thus, the failure of the district court to cite anything to justify an upward departure from the Guideline undermined the Court’s confidence in the outcome. There was a reasonable probability that, absent the error, Parks would have been sentenced to five years of supervised release, the Court concluded.
Accordingly, the Court vacated the supervised release portion of Parks’ sentence and remanded for resentencing. See: United States v. Parks, 995 F.3d 241 (D.C. Cir. 2021).
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