Parker v. United States (2024)

Decision Date10 November 2016
Docket NumberCrim. Case No. 2:09-CR-0500-SLB-HGD,Case No. 2:15-CV-8004-SLB
PartiesTIMOTHY J. PARKER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — Northern District of Alabama

TIMOTHY J. PARKER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No. 2:15-CV-8004-SLB

Crim. Case No. 2:09-CR-0500-SLB-HGD

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

November 10, 2016

MEMORANDUM OPINION

This case is presently pending before the court on defendant/petitioner Timothy J. Parker's (1) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [hereinafter Motion to Vacate], (doc. 1; crim. doc. 27);1 (2) Motion for Reduction of Sentence Pursuant to 18 U.S.C.§3582(c)(2), Amendment 750, and United States v. Freeman, (crim. doc. 26); and (3) Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2), Amendment 782, All Drugs Minus Two, (crim. doc. 30). Parker, who pleaded guilty to two counts of distributing a substance or mixture containing a controlled substance, contends his sentence should be reduced pursuant to subsequent amendments to the Sentencing Guidelines and pursuant to the Fair Sentencing Act, that he was entrapped by the Government into selling crack in order to be subject to a highersentence, and that his counsel was ineffective by failing to argue his entrapment defense properly at sentencing. For the reasons set forth below, the court finds that Parker's Motion to Vacate, (doc. 1; crim. doc. 27), is due to be denied as untimely filed, and his Motions for Reduction of Sentence Pursuant to § 3582(c)(2), (crim. docs. 26 and 30), are due to be denied.

I. BACKGROUND

On December 1, 2009, Parker was charged with two counts of distributing 50 grams or more of "a mixture and substance containing a detectable amount of cocaine base, also known as 'crack' cocaine, a controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(A)." (Crim. doc. 5.) The Government filed an Information Relating to Previous Conviction, pursuant to 21 U.S.C. § 851,2 in which it stated:

[D]efendant committed the crimes charged in Counts One and Two of the Indictment in this case after having been convicted and sentenced on or about December 4, 2001, of Trafficking in Cannabis and Trafficking Cocaine, in case numbers CC-00-3196 and CC-00-3197, respectively, in the Circuit Court of Jefferson County, Alabama; and after having been convicted and sentencedon or about January 9, 2003, of Possession of Cocaine, in case number CC-02-5348, in the Circuit Court of Jefferson County, Alabama; and after having been convicted and sentenced on or about January 12, 2009, of Possession of Marijuana, First Degree, in case number CR-08-3598, in the Circuit Court of Jefferson County, Alabama, and that said convictions constitute "two or more prior convictions for a felony drug offense" for the purpose of an enhanced penalty pursuant to Title 21, United States Code, Sections 841(b)(1)(A) and Title 21, United States Code, Section 851(a).

(Doc. 9.) Parker did not object to or otherwise challenge the fact of his prior convictions.

Parker agreed to plead guilty to both Counts in the Indictment, and the Government agreed, inter alia, to recommend that Parker be sentenced to a term of imprisonment "consistent with the low end of the advisory United States Sentencing Guideline range that is determined by the court on the date that the sentence is pronounced." (Crim. doc. 10 at 1, 7-8.) As part of his Plea Agreement, Parker stipulated the following facts were "substantially correct:"

On August 20, 2009, DEA Special Agent Donald Bennett utilized a Confidential Source (CS) to purchase two (2) ounces of cocaine base from Timothy Jermaine PARKER at the Pilot Travel Center, 901 Bankhead Highway West, Birmingham, Alabama. The CS was directed by SA Bennett to call PARKER and arrange the purchase of approximately two (2) ounces of cocaine base. PARKER agreed and stated the price would be $1,900.00 dollars. The CS and CS'[s] vehicle were searched for illegal contraband with negative results. The CS was provided with $1,900.00 dollars for the purchase of the two (2) ounces of cocaine base from PARKER and was followed to the Pilot Travel Center. PARKER arrived at the Pilot Travel Center in a black 1997 Chevrolet Tahoe and met with the CS. PARKER exited his vehicle and entered the CS'[s] vehicle where he handed the CS approximately two (2) ounces of cocaine base. CS in exchange provided PARKER with the $1,900.00 dollars for the cocaine base. PARKER soon after receiving the $1,900.00 dollars then exited the CS vehicle and entered back into his vehicle and left the Pilot Travel Center parking lot. SA Bennett then met with the CSat a predetermined location where the CS relinquished custody of cocaine base to SA Bennett. The CS and CS' vehicle were searched again for illegal contraband with negative results. SA Bennett conducted a field test of the cocaine base that tested positive for cocaine. The cocaine was then transported to the DEA-Birmingham District Office where it was processed as DEA evidence and submitted to South Central Laboratory for analysis. Laboratory analysis confirmed that this substance was 55.5 grams of a mixture and substance containing a detectable amount of cocaine base.
On November 6, 2009, SA Donald Bennett utilized a [CS] to purchase three (3) ounces of cocaine base from Timothy Jermaine PARKER at the Pilot Travel Center, 901 Bankhead Highway West, Birmingham, Alabama. On this date, the CS was directed by SA Bennett to make a recorded telephone call to PARKER and to arrange the purchase of approximately three (3) ounces of cocaine base. PARKER agreed and stated the price would be $2,775.00 dollars, previously on November 5, 2009 to the CS during a recorded telephone call. The CS and CS'[s] vehicle were searched for illegal contraband with negative results. The CS was followed to the Pilot Travel Center where he/she agreed to meet PARKER. PARKER arrived at the Pilot Travel Center in a black 1997 Chevrolet Tahoe, and met with the CS. PARKER exited his vehicle and entered the CS'[s] vehicle where he handed the CS approximately three (3) ounces of cocaine base at which time Law Enforcement Officers arrested PARKER. The CS was then taken to a predetermined location where the CS and CS'[s] vehicle were searched again for illegal contraband with negative results. A field test was conducted on the suspected cocaine base and showed a positive result for cocaine. The cocaine was then transported to the DEA-Birmingham District Office where it was processed as DEA evidence and submitted to South Central Laboratory for analysis. Laboratory analysis confirmed that this substance was 82.2 grams of a mixture and substance containing a detectable amount of cocaine base.

(Id. at 2-5.)

The court was notified that Parker intended to change his plea from "not guilty" to "guilty." On January 21, 2010, the court held a change-of-plea hearing at which Parker again admitted to distributing crack cocaine to the confidential source on two separate occasions:

THE COURT: Mr. Parker, I want you to listen carefully to what the Assistant U.S. Attorney is going to say. He is now going to outline for youand for me briefly certain of the facts he would expect the government to prove should this case proceed to trial.
If, while he is speaking, he says anything that is not true or that you do not believe the government can prove, I want you to interrupt him and let me know.
Do you understand?
THE DEFENDANT: Yes, ma'am.
THE COURT: Mr. Weil.
[AUSA] MR. WEIL: Your Honor, this case involves two different transactions. One was a buy/walk of cocaine base, and the second one was a buy/bust of cocaine base.
More specifically, on August 20th, this defendant met with a confidential source who was working with the DEA who had agreed to sell two ounces of cocaine base to the confidential source for the price of $1,900. They agreed to meet at the Pilot Travel Center . . . .
And after making several phone calls arranging the deal, the confidential source was followed to the area where the deal was going to happen. He was under constant surveillance. The officer saw the defendant get out of his own vehicle at the Pilot Travel Center, get into the confidential source's vehicle where the exchange took place.
The defendant did hand approximately two ounces of cocaine base to the confidential source, and the confidential source provided the defendant with $1,900 that had been provided to him by the DEA. They did not arrest him on that date. That's what we call a buy/walk.
They did follow the confidential source back to [a] predetermined location where they took custody of the cocaine base. They sent this suspected cocaine base to the crime lab. And it did, in fact, test positive for a detectable amount of cocaine base in the amount of 55.5 grams. As I said, he was not arrested on that date.
They decided to do another transaction with Mr. Parker on November 6th, 2009. It's almost the exact same scenario. On this occasion, they againmet at the same Pilot Travel Center . . . . This time the confidential source was going to buy three ounces of cocaine base from the defendant for $2,775.
Again, phone calls were made setting up the deal. Again, the confidential source was searched before the deal took place, and they followed him to the Pilot Travel Center where they saw the defendant get out of his vehicle, get into the confidential source's vehicle and provide him with the three ounces of crack cocaine.
At that time, the police officers did move in and arrest the defendant and took him into custody. He's been in custody ever since, Your Honor.
The substance was sent to the crime lab, and again it did test positive for cocaine base, and this time the amount was 82.2 grams of cocaine base.
THE COURT: Mr. Parker, you've heard the Assistant U.S. Attorney outline briefly certain of the facts he would expect the government to prove should this case proceed to trial. Are those facts substantially correct?
THE DEFENDANT: Yes, ma'am.
THE COURT: Do you agree that on both occasions that are

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