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Date: 09-06-2021
Case Style:
United States of America v. MARLIN JAMES MACK
Case Number: 06-5001
Judge: Robert H. McWilliams
Court: UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Plaintiff's Attorney: Not Listed
Defendant's Attorney:
Description:
Denver, CO - Criminal defense lawyer represented defendant with conspiring to possess and distribute cocaine, crack cocaine and marijuana; (2) possessing crack cocaine with an intent to distribute; (3) conspiring to commit money laundering; and (4) possessing marijuana with an intent to distribute charge.
At resentencing, the defendant’s counsel argued to the district court that to
enhance defendant’s sentence based on facts not found by a jury-- specifically that he
murdered two people in furtherance of the drug conspiracy–violated his Fifth and Sixth
Amendment rights to trial by jury. In thus arguing, counsel recognizes that Booker’s
remedial opinion permitted the district court to enhance defendant’s sentence using the
uncharged murders, so long as it did not apply the guidelines in a mandatory fashion.
However, at the same time, counsel goes on to suggest that such a holding would in itself
violate the ex post facto principles inherent in the Due Process Clause. On appeal,
counsel concedes that the foregoing argument was rejected by this Court in United States
v. Rines, 419 F.3d 1104 (10th Cir. 2005), and that we, as a panel, cannot overrule Rines.
Such being the case, counsel states that defendant “raises the issue to preserve it for
further review by the Supreme Court.”
II.
Counsel’s main argument is that the district court’s imposition of a life sentence
was unreasonable under 18 U.S.C. § 3553(a). She suggests that the district court’s
imposition of a life sentence on the defendant was both “unreasoned” and
“unreasonable,” citing United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006).
Appellate Case: 06-5001 Document: 010136050 Date Filed: 09/20/2007 Page: 4
In this general connection, we note that in United States v. Rodriguez- 1
Quintanilla, 442 F. 3d 1254, 1258 (10th Cir. 2006), we “emphasize that the sentencing
court is not required to consider individually each factor listed in § 3553(a) before issuing
a sentence,” citing United States v. Contreras-Martinez, 409 F.3d 1236, 1242 (10th Cir.
2005).
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The starting point in our discussion is that the parties agree, for the purpose of this
case, that defendant’s base offense level is 43. As indicated, the sentencing guideline for
one with an offense level of 43 is life imprisonment, regardless of the person’s criminal
history category. And pursuant thereto, the district court resentenced defendant to
imprisonment for life on Counts 1 and 2. Thus, the sentence imposed was within the
guideline range. Such being the case, a sentence within the guideline range is
presumptively reasonable under 18 U.S.C. § 3553(a), and on appeal “the defendant may
rebut this presumption by demonstrating that the sentence is unreasonable in light of the
other sentencing factors in § 3553(a).” United States v. Kristl, 437 F. 3d 1050, 1055
(10th Cir. 2006).
At sentencing, the district court clearly indicated that the fact that the evidence
adduced at trial proved that as a part of defendant’s participation in the drug conspiracy
the defendant had killed two persons was the primary reason that it sentenced defendant
to two terms of life imprisonment. However, the district court did indicate that there were
other facts in the case that supported its determination that a life sentence was proper and
thus reasonable. Those were (1) defendant’s role in the conspiracy; (2) his criminal
record; and (3) his participation in the invasion of the Field’s residence.
1
At the outset, it should be observed that this is not a case where, for example, a
Appellate Case: 06-5001 Document: 010136050 Date Filed: 09/20/2007 Page: 5
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defendant has pled guilty and accordingly, at sentencing, a district court relies primarily
on the pre-sentence report. In the instant case, the defendant did not plead guilty, but
was adjudged guilty by a jury after a 23-day trial presided over by the same judge who
thereafter sentenced him. In that situation a district court may not only rely on the
presentence report, but it also has a right to rely on what it saw and heard during the trial
itself. See United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006). Viewed
in that context, we conclude that the record, which includes a transcript of the trial,
supports the district court’s conclusion that defendant was a “leader” in this extensive
drug conspiracy case. True, the “head man” was located in Arizona, but the conspiracy
involved about six other states, and it would appear to us that the defendant was, indeed, a
“leader” in Oklahoma.
As for defendant’s prior criminal history, the pre-sentence report indicates that the
defendant apparently had four prior convictions, and in addition several convictions
which apparently occurred when he was a juvenile. In our view, the district court did not
err in considering those matters at the sentencing of the defendant. And it is very obvious
to us that the district court did not sentence defendant to two life sentences because of his
criminal history.
The evidence concerning the so-called “Home Invasion and Abduction at the
Fields’ residence” was that three persons forced their way into the Fields’ residence to
recover some drugs. One of the perpetrators thereof, at trial, testified that the defendant
was one of the intruders. The victim of the invasion, however, testified that he was not.
Appellate Case: 06-5001 Document: 010136050 Date Filed: 09/20/2007 Page: 6
Shortly before this case was initially set for oral argument, defendant’s counsel 1
filed in this Court a “Notice Regarding Status of Appeal” in which she stated that while
the case had been pending in this Court, the State of Oklahoma had filed charges against
defendant in the district court in and for Tulsa County charging him with two counts of
murder and sought the death penalty. We were further advised that the jury on December
14, 2006, found defendant guilty of the charges and that he had been sentenced to two life
sentences to run concurrently. We are also advised that the defendant intends to appeal
his state convictions and sentences.
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So, this is simply a case of conflicting evidence. In any event, it is again clear from the
record, that the district court did not sentence the defendant to two life imprisonment
terms because of the Fields incident.
Outcome: In short, based on the present record, any possible error at sentencing was
harmless, i.e., “the error did not affect the district court’s selection of the sentence imposed.” United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 2005).
Judgment affirmed.1
Plaintiff's Experts:
Defendant's Experts:
Comments: