United States v. Marion

648 F.Supp.3d 1048

UNITED STATES of America, Plaintiff, v. Rico MARION, Defendant.

CAUSE NO. 3:21-CR-80(1) DRL

United States District Court, N.D. Indiana, South Bend Division

Signed December 22, 2022

Kimberly L. Schultz, Government Attorney, U.S. Attorney's Office, Hammond, IN, Joel R. Gabrielse, Government Attorney, U.S. Attorney's Office, South Bend, IN, for Plaintiff.

SENTENCING MEMORANDUM

Damon R. Leichty, Judge

Rico Marion led a multi-kilogram conspiracy to traffic fentanyl into Indiana. In August 2021, law enforcement intercepted him in Texas with fentanyl. Currency, drugs, and firearms were recovered from multiple residences. Mr. Marion pleaded guilty to two counts of a superseding indictment—conspiring to distribute 400 grams or more of a fentanyl mixture, 21 U.S.C. §§ 841(b)(1)(A), 846, and possessing a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A).

SENTENCING GUIDELINES

The court must first calculate the guideline range correctly, then decide what sentence is right and reasonable for this defendant. Dean v. United States, 581 U.S. 62, 67, 137 S.Ct. 1170, 197 L.Ed.2d 490 (2017); United States v. Swank, 37 F.4th 1331, 1334 (7th Cir. 2022). The 2021 guidelines apply. See Peugh v. United States, 569 U.S. 530, 531, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013).

A. Mr. Marion Denies Using Violence and Making Credible Threats—the Two-Level Enhancement under U.S.S.G. § 2D1.1(b)(2) (Paragraphs 33 and 48).

The guidelines counsel a two-level enhancement when a defendant uses violence or credibly threatens violence. See U.S.S.G. § 2D1.1(b)(2). Mr. Marion objects: he says he didn't threaten his conspirators as they were instead willing participants.

A defendant has a constitutional right to be sentenced based on reliable information. United States v. Rollins, 544 F.3d 820, 838 (7th Cir. 2008). The court can rely on information in the presentence report "so long as it is well supported and appears reliable." United States v. Robl, 8 F.4th 515, 529 (7th Cir. 2021) (quotations and citation omitted). The defendant must furnish some evidence, more than mere speculation or a simple denial, to undermine "facially reliable information in the [presentence report]." United States v. Moore, 52 F.4th 697, 704 (7th Cir. 2022). Only then does the burden shift to the government to demonstrate the accuracy of the information by a preponderance of the evidence. United States v. Rollerson, 7 F.4th 565, 569-70 (7th Cir. 2021); United States v. Mays, 593 F.3d 603, 608 (7th Cir. 2010).

Two conspirators—Carissa McCoy and Brandon Harris—say Mr. Marion pistol-whipped Mr. Harris after he lost a substantial quantity of drugs in New Mexico. Mr. Harris testified that this occurred twice at one home; and the court credits his testimony on this front given his specific details about the incident, evidence of his injury, and corroboration from the presentence report (otherwise left unchallenged) and additional testimony from Task Force Officer Kyle Shiparski. Meliki Marion also confirmed Mr. Harris was "badly beat." Their consistency lends reliability.¹ In addition, Ms. McCoy recounted Mr. Marion's credible threat of violence against her, Mr. Harris, and their families in her handwritten letter, which the court credits under the circumstances today. Mr. Marion forced them to create a list of family members and their addresses and threatened to kill them unless they complied with his demands. The court overrules the objection.

B. Mr. Marion Denies He Maintained Multiple Premises for the Purpose of Distributing Drugs—the Two-Level Enhancement under U.S.S.G. § 2D1.1(b)(12) (Paragraphs 34 and 49).

Mr. Marion objects to the statement that he maintained multiple drug premises under U.S.S.G. § 2D1.1(b)(12). A defendant "maintains a drug house if he . . . exercises control over [the premises], and for a sustained period of time, uses those premises to manufacture, store, or sell drugs, or directs others to those premises to obtain drugs." United States v. Acosta, 534 F.3d 574, 591 (7th Cir. 2008) (quotations omitted); see also U.S.S.G. § 2D1.1(b)(12) app. n.17. It must be one of the primary purposes of the premises. United States v. Sanchez, 810 F.3d 494, 497 (7th Cir. 2016).

The court overrules Mr. Marion's objection. He doesn't dispute that his apartment was used as a drug premises, and he need only maintain one drug premises for this enhancement to apply. The precise question of whether he maintained other premises within the exact meaning of U.S.S.G. § 2D1.1(b)(12) otherwise has no bearing otherwise on his sentence today. See Fed. R. Crim. P. 32(i)(3)(B). The court accounts for these myriad other locations only as to the scale of this operation under 18 U.S.C. § 3553(a).

C. Mr. Marion Denies Misrepresenting that He Sold Fentanyl Pills—the Four-Level Enhancement Under U.S.S.G. § 2D1.1(b)(13) (Paragraphs 35 and 50).

The guidelines enhance a defendant's offense level when he knowingly misrepresents or markets a fentanyl mixture as another substance. U.S.S.G. § 2D1.1(b)(13). Mr. Marion says he knew he was selling (and using) fentanyl but never misrepresented the substance he sold.

Mr. Marion knew how the pills were made. He sold blue pills marked "M/30"—a close match to the color and coding for prescription oxycodone or "Perc 30s." From coast to coast, and for some years, such "M/30" fentanyl-laced blue pills have appeared at great risk to our communities. Prescription drugs have coded imprints or markings to identify them. The very act of counterfeiting such pills as mimics to oxycodone, particularly when Mr. Marion knew they were fentanyl—no later than April 2021 by his own admission—qualifies as a knowing misrepresentation on his part. They were marketed and represented—as any other product would be deemed marketed as it is labeled once put into the stream of commerce—as prescription oxycodone for months, though Mr. Marion knew they were fentanyl.

In addition, Mr. Harris testified that Mr. Marion represented that the pills were oxycodone (or "Perc 30s") and, on another occasion, denied they contained fentanyl. Though Mr. Harris wasn't precise in stating a date when these representations occurred, the bulk of this conspiracy's activity occurred later in 2021, and after Mr. Harris raised with Mr. Marion the issue of an overdose that occurred in the spring 2021. Accordingly, the court finds that Mr. Marion's misrepresentations occurred after he knew that the pills contained fentanyl. The court overrules this objection.

D. Mr. Marion Denies Using Fear to Involve Another Individual in the Illegal Sale and Transportation of Drugs—the Two-Level Enhancement Under U.S.S.G. § 2D1.1(b)(16)(A)(i) (Paragraphs 36 and 51).

The guidelines add two levels when a defendant uses fear to involve another individual in the illegal transportation of drugs. U.S.S.G. 2D1.1(b)(16)(A)(i). Mr. Marion argues that he never threatened his conspirators and never kidnapped Ms. McCoy. He says she had a separate hotel room while in Arizona so he could not have kidnapped her.

But kidnapping isn't the metric for this enhancement. Mr. Marion threatened to kill Ms. McCoy and her family to induce her to participate in drug transportation. He also used a measure of fear to secure use of her residence (and that of Mr. Harris) for measurable drug storage and sales. Mr. Marion underscored that Mr. Harris owed him a debt for losing a drug stash to law enforcement. Mr. Marion threatened these two conspirators (and two others) not just to discourage them from going to the police, but to enhance the scale of this conspiracy. True, Mr. Harris had sold pills before. Notable and credible here, Mr. Harris testified that he began keeping a ledger after the pistol-whipping to track payment on his new debt.² He also testified credibly that escaping—for instance, returning to his hometown of Memphis, Tennessee—wasn't an option because Mr. Marion had acquired addresses for family members and made it clear that, if Mr. Harris left, he would just return to the funerals of Ms. McCoy's parents. The court overrules this objection accordingly.

E. Mr. Marion Hasn't Clearly or Timely Accepted Responsibility under U.S.S.G. § 3E1.1.

The court declines a reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. Mr. Marion "bears the burden of proving that he is entitled to [this] reduction." United States v. Purchess, 107 F.3d 1261, 1266 (7th Cir. 1997). A defendant's acceptance of responsibility is a factual finding. United States v. Pons, 795 F.3d 745, 747 (7th Cir. 2015).

The sentencing guidelines outline several factors for the court to consider—among them, whether the defendant truthfully admits his offense conduct, never falsely denies additional relevant conduct (though he may remain silent on relevant conduct), voluntarily surrenders to authorities promptly after the offense's commission, engages in post-offense rehabilitative efforts, and does these things in a timely way. U.S.S.G. § 3E1.1 app. n.1. "A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right." U.S.S.G. § 3E1.1 app. n.3.

Mr. Marion pleaded guilty and admitted to a certain factual basis to be sure. He wasn't the last to fess up but certainly wasn't the first; and, by then, the drugs and tools of the conspiracy had been largely recovered already. He hasn't engaged in rehabilitation efforts since his indictment. Chief among the factors of interest, and the one that weighs heavily against a view that he has accepted responsibility, he has not truthfully admitted his offense and relevant conduct and instead frivolously denies it. He denies (1) pistol-whipping and using violence against Mr. Harris, (2) threatening to harm Mr. Harris, Ms. McCoy, and their family, (3) using fear to help get Ms. McCoy to traffic drugs, and (4) misrepresenting that the pills he was selling was fentanyl. The court finds his denials to be false. Mr. Marion also said under oath (1) that no one...