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United States v. Parker

December 19, 2005

UNITED STATES OF AMERICA,
v.
DARNYL PARKER, DEFENDANT.



The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court

DECISION AND ORDER

INTRODUCTION

Currently before the Court is a motion by the defendant, Darnyl Parker, for resentencing following remand from the Second Circuit pursuant to the United States Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). For the reasons that follow, the motion is denied.

BACKGROUND

On April 4, 2000, Parker was charged in a twelve-count indictment along with several other defendants. Parker was named in eleven of the twelve counts. Count 1 charged Parker, a City of Buffalo police officer, and three other police officers, John Ferby, David Rodriguez and Robert Hill, with conspiracy to violate Fourth and Fourteenth Amendment rights, in violation of 18 U.S.C. § 241. Count 2 charged Parker and the three officers with conspiracy to commit theft or conversion of government property, in violation of 18 U.S.C. § 371, as it relates to 18 U.S.C. § 641, and Counts 3 and 4 charged Parker and the three officers with theft or conversion of government property in violation of 18 U.S.C. §§ 641 and 2. Count 5 charged Parker and the three officers with conspiracy to commit robbery, extortion, and extortion under color of official right, in violation of 18 U.S.C. § 1951. Count 6 charged Parker and the three officers with attempted robbery, extortion and extortion under color of official right, in violation of 18 U.S.C. §§ 1951 and 2. Count 7 charged Parker and the three officers with carrying and possessing a firearm in furtherance of the crimes alleged in Counts 5 and 6, in violation of 18 U.S.C. 924(c). In Counts 8 and 9, Parker was charged with two additional counts of attempted extortion under color of official right in violation of 18 U.S.C. § 1951. Count 10 charged Parker with one count of money laundering in violation of 18 U.S.C. § 1956(a)(3)(A). Count 11 charged Parker and two others, his son William Parker and his nephew Reno Sayles, with conspiracy to possess with the intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846.

On March 15, 2002, following a jury trial on the charges, defendant Parker was found guilty of the following offenses: Count 1 (civil rights conspiracy), Count 2 (conspiracy to commit theft or conversion of government property), Counts 3 and 4 (theft or conversion of government property), Count 5 (conspiracy to commit extortion under color of official right), Count 6 (attempted extortion under color of official right), Counts 8 and 9 (attempted extortion under color of official right), Count 10 (money laundering), and Count 11 (conspiracy to distribute or possess with the intent to distribute 500 grams or more of cocaine).*fn1

On August 20, 2002, the Court sentenced the defendant to a term of 120 months of incarceration for Counts 1, 2, 3 and 4, and 136 months for Counts 5, 6, 8, 9 and 11, all to run concurrently.

The defendant appealed his conviction and sentence to the United States Court of Appeals for the Second Circuit. On May 19, 2004, the Second Circuit issued a summary order affirming the defendant's conviction and sentence. An amended summary order was issued on September 3, 2004, wherein the Court reached the same conclusion. However, on March 25, 2005, the Circuit remanded the matter to this Court in light of the United States Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005), and the Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), for the limited purpose of determining whether to resentence defendant Parker.

On July 28, 2005, the Court appointed attorney Daniel Henry, Esq., to represent defendant Parker in connection with the motion for resentencing.*fn2

On September 8, 2005, the defendant, through counsel, filed a motion for resentencing, and on September 30, 2005, the government filed a response opposing the motion.

DISCUSSION

As noted above, the Second Circuit remanded this matter for further proceedings in light of Booker and Crosby. In Crosby, the Second Circuit explained that remand to the district court was "generally appropriate" in the aftermath of Booker, so that the sentencing court could consider whether to resentence the defendant under the new advisory sentencing regime. The court emphasized that remand was being conducted: not for the purpose of a required resentencing, but only for the more limited purpose of permitting the sentencing judge to determine whether to resentence, now fully informed of the new sentencing regime, and if so, to resentence.

Crosby, 397 F.3d at 117 (emphasis in original); see also United States v. Rubenstein, 403 F.3d 93, 98 (2d Cir. 2005) ("Ordinarily, post-Booker, we would remand for the district court to consider whether the original sentence -- imposed pre-Booker on the then-valid mandate of the Guidelines -- would have been different if the district judge had appreciated his discretion to frame the sentence based on the fact that the Guidelines are advisory.").

After carefully considering the entire record in this case, the written submissions of the parties, the current advisory sentencing regime as explicated in Booker and Crosby, and the factors set forth in 18 U.S.C. ยง 3553(a), the Court denies Parker's motion for resentencing. That is, the Court finds that it would have imposed the same sentence even if the ...


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