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United States v. Parker

United States Court of Appeals, Fifth Circuit

June 18, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
ANDREW MAXWELL PARKER, Defendant-Appellant

          Appeals from the United States District Court for the Western District of Texas

          Before HAYNES, GRAVES, and HO, Circuit Judges.


         Andrew Parker was convicted of an assortment of fraud crimes more than a decade ago. Since then, he has revisited our court at least ten times through a combination of a direct appeal, appeals from 28 U.S.C. § 2255 denials, requests for authorization to file successive § 2255 motions, and a petition for writ of mandamus. Though the procedural vehicles have changed, his arguments have not, and we have repeatedly denied his requests for certificates of appealability (COA) and authorization to file successive § 2255 motions.

         Parker once again tried his luck with these arguments before the district court, filing another motion under § 2255. The district court dismissed the motion for lack of jurisdiction because Parker failed to receive authorization from our court to file a successive petition under § 2255. Parker then requested reconsideration, which the district court denied. He has now appealed, implicitly requesting a COA. We DENY Parker a COA, DISMISS his appeal for lack of jurisdiction, and sanction him for appealing his collateral attack on his conviction.

         But Parker has also appealed a new issue not foreclosed by his prior efforts. In the district court, he challenged the amount of restitution he was ordered to pay. Parker argues that the victims of his crimes have recovered some of their damages through a civil judgment. The statutes governing restitution grant Parker the right to reduce his restitution order based on subsequent civil judgments. But Parker failed to present necessary evidence to succeed on his claim. We thus AFFIRM the district court's denial of his request to quash the Government's writ of execution.[1]

         I. Background

         Andrew Parker used his company, San Antonio Trade Group, Inc. ("SATG"), to defraud the Export-Import Bank of the United States ("Ex-Im Bank"). He collaborated with people in Mexico to seek loans from United States companies based on lies and forged documents. Ex-Im Bank insured and guaranteed the loans. Once the loans were insured and guaranteed, Parker diverted millions of dollars in loan money to himself rather than for the stated purposes. Along the way, he committed wire fraud, money laundering, tax evasion, tax fraud, and conspiracy.

         Eventually Parker was caught and pleaded guilty to those crimes under a written plea agreement. In accordance with the plea agreement, the district court sentenced Parker to a term of imprisonment and supervised release and ordered Parker to pay $10 million in restitution.

         Since then, Parker has doggedly tried to undo his conviction. Parker's first attack on his plea agreement and conviction came when he appealed his conviction. See United States v. Parker, 372 Fed.Appx. 558 (5th Cir. 2010) (per curiam). He argued that the indictment, plea agreement, and plea colloquy did not set out facts that proved he committed some of the alleged crimes. Id. at 560-62. We rejected his arguments and affirmed. Id. at 563.

         Less than a year later, Parker filed his first § 2255 motion in April 2011. His arguments ranged wide, including many related to the arguments he makes in this appeal: the Government committed a Brady[2] violation or elicited or permitted false evidence, and his counsel was ineffective by failing to challenge the wire fraud counts for lack of an interstate nexus. The district court identified and rejected those arguments.[3] Parker sought reconsideration, which was also denied. We denied Parker a COA, concluding that all reasonable jurists would agree that the district court's order was correct.

         Between that motion and the motions leading to this appeal, Parker filed numerous other motions in the district court. The district court rejected all those motions on the grounds that they were unauthorized successive motions, see § 2255(h) (requiring a defendant who files a "second or successive motion" to receive authorization to file it from the proper court of appeals in accordance with § 2244), or, to the extent they were not, they were barred by § 2255's one- year period of limitations, see § 2255(f). Each time Parker appealed the district court's order, and each time we denied him a COA. The most recent time we addressed one of Parker's appeals, a judge of this court imposed sanctions on him for filing frivolous appeals.

         While he filed district court motions, Parker also twice requested that our court grant him authorization to file a successive motion. We denied authorization both times-once because Parker had not identified an exception to the successive motion bar, see In re Parker, 575 Fed.Appx. 415 (5th Cir. 2014), and another time because the evidence he pointed to did not satisfy the "newly discovered evidence" exception to that bar.

         In all, we have addressed Parker's case eight times: one affirmance on direct appeal, five denials of COAs, and two denials of requests for authorization to file a successive motion.[4]

         Undeterred, Parker tried again. After each of his previous attempts failed, Parker filed another motion under § 2255. The district court again dismissed the motion as an unauthorized successive motion. Parker then requested reconsideration, which was denied. He then requested reconsideration of the district court's denial of reconsideration. The district court again denied reconsideration. Parker appealed from the order denying reconsideration of the order denying ...

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