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The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 06-3607/3650

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United States of America, * 

*

Appellant/Cross-Appellee, *

* Appeals from the United States

v. * District Court for the

* Eastern District of Arkansas.

Derrick Lovell Parker, also known as *

Darrell Parker, * 

*

Appellee/Cross-Appellant. *

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Submitted: September 27, 2007

Filed: January 16, 2008

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Before COLLOTON, ARNOLD and GRUENDER, Circuit Judges.

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GRUENDER, Circuit Judge.

Pursuant to a plea agreement, Derrick Lovell Parker pled guilty to possession

with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1)

and possession of a firearm during a drug trafficking crime in violation of 18 U.S.C.

§ 924(c). The district court1

 sentenced Parker to 60 consecutive months’

imprisonment for each violation. The Government initially appealed Parker’s

sentence but subsequently filed a motion to withdraw the appeal in light of Gall v.
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United States, 552 U.S. ---, 128 S. Ct. 586 (2007), which was granted. Parker crossappeals the district court’s decision to apply a career offender enhancement, arguing

that the Government breached the plea agreement, and he contests the district court’s

failure to depart to grant him credit for time served in state custody. We affirm.

I. BACKGROUND

On November 19, 2004, Little Rock, Arkansas police stopped Derrick Parker

for having fictitious license tags. Parker identified himself as “Darrell Parker” and

claimed he had no identification. Officers learned that Parker used the alias “Darrell

Parker” and discovered a warrant issued for Derrick Parker’s arrest. Officers asked

Parker to exit the vehicle, and a pat-down search revealed a loaded pistol hidden in his

pants. Later, during a more thorough search of Parker, officers found 8.8 grams of

cocaine hydrochloride and 15.6 grams of marijuana. A trace performed by agents of

the Bureau of Alcohol, Tobacco, Firearms and Explosives determined the gun had

been stolen.

In Arkansas state court, Parker pled guilty to theft by receiving the stolen gun

and was sentenced to 36 months’ imprisonment. Parker served the state sentence

while under indictment for the federal charges and was paroled after completing

approximately five months of his state sentence. Parker then entered federal custody.

In federal court, Parker entered a guilty plea to two counts, possession with

intent to distribute cocaine hydrochloride, 21 U.S.C. § 841(a)(1), and possession of

a firearm during a drug trafficking crime, 18 U.S.C. § 924(c), in exchange for the

dismissal of a third count. In the plea agreement, the parties stipulated that the base

offense level would be based upon the 8.8 grams of cocaine hydrochloride and 15.6

grams of marijuana and that neither party would seek any guidelines departures

beyond those specifically identified in the plea agreement or any “enhancement or

reductions for role in this offense pursuant to U.S.S.G. Section 3B.”
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The Presentence Investigation Report (“PSR”) initially identified a base offense

level of 10 based upon the stipulated quantities of drugs and a two-level reduction for

acceptance of responsibility under United States Sentencing Guidelines (“U.S.S.G.”)

§ 3E1.1(a) for a total offense level of 8. With a criminal history category of III, the

initial advisory sentencing guidelines range for the drug violation was 6 to 12 months.

The PSR, however, then indicated that Parker had two prior drug trafficking

convictions and, pursuant to U.S.S.G. § 4B1.1, determined that Parker was a career

offender. As a result, the PSR calculated a total offense level of 29, a criminal history

category of VI, and an advisory guidelines range of 151 to 188 months’ imprisonment

for the drug violation. Pursuant to the requirements of § 924(c), the PSR

recommended a 60-month consecutive term for the firearm violation.

At the sentencing hearing, Parker argued that the PSR’s determination of career

offender status constituted an enhancement or departure prohibited by the plea

agreement. The district court rejected Parker’s argument and adopted the PSR’s

recommended advisory guidelines range of 151 to 188 months on the drug charge

with a consecutive 60 months on the firearm charge. Parker also claimed that his

criminal history was overstated, but the district court concluded that it would not

“invalidate the career offender status just” based on overstated criminal history. The

court, however, sentenced Parker “somewhat below the guideline range” on account

of the fact that Parker’s prior criminal offenses “in some way” did “overstate the

criminal history.” Parker also raised the prospect that the district court could depart

under U.S.S.G. § 5G1.3 and give him credit for time served on account of his term of

imprisonment in state custody, a proposition he previously raised in a written

memorandum to the court. The district court did not allow Parker any credit for time

served on his state conviction and did not identify § 5G1.3 as a basis for his decision

to sentence Parker below the advisory guidelines range. After discussing several §

3553(a) factors, the district court sentenced Parker to 60 months for the drug charge

and 60 consecutive months for the gun charge.
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II. DISCUSSION

Parker first contends that his classification as a career offender violated the

terms of the plea agreement. We review the interpretation of a plea agreement de

novo. United States v. Mosley, 505 F.3d 804, 808 (8th Cir. 2007). The plea

agreement stated that the parties would not seek any departures beyond those

specifically identified in the plea agreement or any “enhancement or reductions for

role in this offense pursuant to U.S.S.G. Section 3B.” Although his career offender

status was not identified in the plea agreement, career offender status is not a

“departure” but an application of § 4B1.1 of the guidelines. See United States v.

Street, 257 F.3d 869, 870 (8th Cir. 2001) (holding that an enhancement under § 3C1.1

is part of the guidelines range, not a departure). Generally, departures occur pursuant

to Chapter 5 of the Sentencing Guidelines, see United States v. Solis-Bermudez, 501

F.3d 882, 884 (8th Cir. 2007), and, in some cases, pursuant to § 4A1.3. Because the

application of the career offender status under § 4B1.1 is neither a departure nor a §

3B enhancement, the plea agreement does not prohibit its application.

In support of his argument, Parker cites United States v. Fowler, 445 F.3d 1035

(8th Cir. 2006). In Fowler, the Government agreed to recommend a specific total

offense level in the plea agreement and later advocated for a higher total offense level

during the sentencing hearing. Id. at 1037–38. We found that the Government

breached the plea agreement in that case. Id. at 1038. In this case, however, the

parties only agreed that the base offense level would be based upon the agreed

quantities of cocaine hydrochloride and marijuana. Because the parties did not

stipulate to a total offense level, Parker’s reliance on Fowler is misplaced. See

U.S.S.G. §§ 1B1.1(b), (f) (indicating that courts should calculate a base offense level

before making any adjustments under Chapter 4).

Parker also claims that the district court erroneously classified him as a career

offender because it overstated his criminal history. Parker, however, does not contest
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Additionally, Parker argues that the Government must plead and prove prior

convictions in order to obtain a career offender designation because it is a fact that

increases his punishment. We have repeatedly rejected this argument. See, e.g.,

United States v. Goodfellow, 223 Fed. Appx. 521, 521 (8th Cir. 2007) (unpublished

per curiam); United States v. Levering, 431 F.3d 289, 295 (8th Cir. 2005).

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that the underlying prior criminal convictions render him a career offender under §

4B1.1. Accordingly, while this argument may be the basis for a departure under §

4A1.3 or a variance based on § 3553(a), which he in fact received, it is not a sufficient

challenge to his classification as a career offender under the guidelines.

Additionally, Parker argues that the ultimate sentence of 60 months was an

unreasonably high variance under § 3553(a) because his advisory guidelines range

without career offender status was 6 to 12 months. Parker, however, was correctly

classified as a career offender, and as a result his advisory guidelines range was 151

to 188 months. Thus, a 60-month sentence was actually a substantial reduction, not

an upward variance.2

Finally, Parker asserts that the district court failed to depart under § 5G1.3 for

credit for a period of imprisonment already served. It is unclear whether Parker

requests an adjustment for an undischarged term of imprisonment under § 5G1.3(b)

or a downward departure for a discharged term of imprisonment under Application

Note 4 to § 5G1.3, which refers to a departure under § 5K2.23. Nevertheless, we need

not decide whether Parker’s imprisonment was discharged or undischarged while he

was paroled because neither applies. See United States v. Hurley, 439 F.3d 955, 957

n.3 (8th Cir. 2006). Both an adjustment for an undischarged term of imprisonment

and a departure for a discharged term of imprisonment require two identical elements.

To be eligible for either, Parker must show that the term of imprisonment “resulted

from another offense that is relevant conduct to the instant offense of conviction”

under the provisions of U.S.S.G. § 1B1.3, and that the relevant conduct “was the basis

for an increase in the offense level for the instant offense under Chapter Two (Offense
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Conduct) or Chapter Three (Adjustments).” See id. at 957 (quoting § 5G1.3(b))

(internal quotation marks omitted). Even assuming that Parker’s state theft by

receiving conviction was relevant conduct to his federal drug offense, the theft by

receiving conviction was not the basis for an increase in the offense level for Parker’s

drug offense. See id.; United States v. Meyers, 401 F.3d 959, 962 (8th Cir. 2005).

Additionally, Parker’s sentence for the firearm offense under § 924(c) runs

consecutive to the guidelines sentence for his drug offense and is not a component of

his guidelines calculation. See 18 U.S.C. § 924(c)(1)(D)(ii); U.S.S.G. § 3D1.1(b)(1).

Therefore, the district court did not err in failing to grant credit or depart under §

5G1.3 or § 5K2.23.

III. CONCLUSION

For the reasons discussed above, we affirm Parker’s sentence.

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