Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-8-2005

USA v. Parmelee
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2774




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Recommended Citation
"USA v. Parmelee" (2005). 2005 Decisions. Paper 725.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/725


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-2774


                           UNITED STATES OF AMERICA

                                           v.

                            VERNON EARL PARMELEE
                          aka VERNON EARL PARMALEE

                                                      Vernon Earl Parmelee,
                                                                      Appellant


                    On Appeal from the United States District Court
                             for the District of New Jersey
                            D.C. Criminal No. 98-cr-00618
                      District Judge: Honorable John W. Bissell


                                 Argued May 25, 2004

       Before: SCIRICA, Chief Judge, RENDELL and ALARCÓN * , Circuit Judges

                                (Filed: August 8, 2005)

STACY A. BIANCAMANO, ESQUIRE (ARGUED)
Office of Federal Public Defender
972 Broad Street
Newark, New Jersey 07102
       Attorney for Appellant



   *
    The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
NORMAN J. GROSS, ESQUIRE (ARGUED)
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street, 4th Floor
P.O. Box 2098
Camden, New Jersey 08101

GEORGE S. LEONE, ESQUIRE
Office of United States Attorney
970 Broad Street, Room 700
Newark, New Jersey 07102
       Attorneys for Appellee




                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Appellant Vernon Earl Parmelee was convicted by a jury of four counts of

possession of child pornography using media that has traveled in interstate commerce, in

violation of 18 U.S.C. § 2252A(a)(5)(B). He does not challenge his conviction.

       Parmelee was sentenced to 140 months imprisonment. In sentencing Parmelee, the

District Court applied U.S. Sentencing Guidelines Manual § 2G2.2, for persons convicted

of possession of child pornography with the intent to traffic, rather than U.S.S.G. §

2G2.4, for simple possession of child pornography. This led to an increase in Parmelee’s

sentencing range from 41-51 months to 135-168 months. Parmelee contends the District

Court erred in employing a preponderance of the evidence standard, instead of a clear and

convincing test, in determining whether he intended to traffic in child pornography. He


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further asserts that the evidence was insufficient to demonstrate that he intended to

distribute such material under either evidentiary standard. Finally, he maintains that the

District Court impermissibly engaged in “double counting” by applying the increased

base offense levels set forth in U.S.S.G. § 2G2.2 for persons who possess material

involving the sexual exploitation of a minor with intent to traffic.

       Parmelee also challenges his sentence under United States v. Booker, 543 U.S. - -,

(2005). Having determined that the sentencing issues appellant raises are

best determined by the District Court in the first instance, we vacate the sentence and

remand for resentencing in accordance with Booker.




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