Opinion
CAUSE NO. 3:21-CR-80(1) DRL
2022-12-22
UNITED STATES of America, Plaintiff, v. Rico MARION, Defendant.
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.
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. 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.
Even Mr. Marion admitted he engaged in a violent fight with Mr. Harris that resulted in his injury. He just denies that it involved a firearm.
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. 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.
A ledger was found in Mr. Harris' home.
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 forced anyone to sell these pills, (2) that he only engaged in a physical confrontation with Mr. Harris but never used a firearm to injure him, (3) that Ms. McCoy volunteered to go on the trafficking trip to Arizona, and (4) that he didn't threaten to kill anyone. The court finds these statements to be false.
The third additional level is inappropriate for further reasons. First, the government hasn't filed a motion, and that isn't because of an invidious or unconstitutional reason. See United States v. Davis, 714 F.3d 474, 475 (7th Cir. 2013) (per curiam); United States v. Nurek, 578 F.3d 618, 624-25 (7th Cir. 2009). Second, Mr. Marion has falsely denied offense and relevant conduct. Third, he has caused both the government and the court to expend rather than to allocate their resources efficiently. See United States v. Orona, 534 F.Supp.3d 987, 990-92 (N.D. Ind. 2021).
Accordingly, the court withholds an acceptance of responsibility reduction under the guidelines. See, e.g., United States v. Zehm, 217 F.3d 506, 515-516 (7th Cir. 2000) (withholding acceptance of responsibility reduction because the defendant denied responsibility for the full extent of his involvement in the conspiracy at odds with witness testimony).
F. Sentencing Guidelines Calculation.
That said, the court adopts as its findings ¶¶ 1-180 of the revised presentence report, as corrected by the second addendum. In addition, for consistency, and without objection from either side, the court strikes reference in ¶ 17 only to the presence of "two loaded Glock pistols" within the northwest bedroom as factually incorrect (and as corrected in companion cases).
Mr. Marion starts at level 32 because his offense involved 2.5 kilograms of a mixture containing fentanyl. U.S.S.G. §§ 2D1.1(a)(5), (c)(4). Several enhancements take him higher still—two levels because he used violence and credibly threatened to use violence, U.S.S.G. § 2D1.1(b)(2), two levels because he maintained a drug premise, U.S.S.G. § 2D1.1(b)(12), four levels because he knowingly misrepresented or marketed the fentanyl-mixed pills as another substance, U.S.S.G. § 2D1.1(b)(13), two levels because he used fear to induce another individual to transport and sell drugs, U.S.S.G. § 2D1.1(b)(16)(A)(i), and four levels because he led and organized extensive criminal activity involving five or more participants, U.S.S.G. § 3B1.1(a). The guidelines and other argument then reduce his offense level to level 43. See U.S.S.G. chap. 5A app n.2.
The guidelines assess nine criminal history points and thereby place Mr. Marion in criminal history category IV. U.S.S.G. Chap. 5A. There the guidelines recommend on count one a sentencing range of life, U.S.S.G. chap. 5A, within the statutory range of ten years to life, 21 U.S.C. §§ 841(b)(1)(A), 846. On count two, the guidelines recommend the minimum term of imprisonment required by statute—five years—to run consecutive to count one. 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(A)(i); U.S.S.G. § 2K2.4(b).
DISCUSSION
The court decides this sentence under 18 U.S.C. § 3553(a) and Booker v. United States, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Under the statutory factors, the court must choose a reasonable sentence: one sufficient but not greater than necessary to satisfy federal sentencing goals. 18 U.S.C. § 3553(a).
Mr. Marion was the conspiracy's leader. This isn't inconsequential as this category of offender represents only a small percentage of offenders in fentanyl conspiracies (about 3.5 percent). See United States Sent. Comm'n (USSC), Fentanyl and Fentanyl Analogues: Federal Trends and Trafficking Patterns 28 (2022). He trafficked fentanyl, distributed fentanyl pills, and engaged others to do so—at times utilizing threats and force. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A). The conspiracy was carefully plotted. His guideline range speaks in part to the size and impact of this multi-kilogram, multi-state drug conspiracy. Several other features underscore its seriousness and the need for today's sentence.
Fentanyl is a growing killer. Near daily reports in the news record its spread and danger. Among synthetic opioids, it has become a most common cause of overdose deaths. See Nat'l Inst. on Drug Abuse, Fentanyl DrugFacts 2 (2021); see also see USSC, Fentanyl and Fentanyl Analogues, supra at 9. A mere mosquito's weight in fentanyl can kill. One kilogram has the potential to kill 500,000 people. Today's sentence helps to protect the public from this dangerous drug, particularly when fentanyl's modest cost ($20 to $30 per pill) makes it readily available to most anyone. See 18 U.S.C. §§ 3553(a)(2)(A), (a)(2)(C). It's cheap to produce and cheap to get.
Fentanyl traffickers often exacerbate this risk by masking the drug as something else, and Mr. Marion did just that. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A). He sold fentanyl manufactured as look-alike oxycodone pills and represented the pills to his customers as oxycodone. Indeed, a reported drug overdose from Mr. Marion's counterfeit pills put law enforcement on his scent. Fentanyl can be 30 times more potent than heroin, 60 times more potent than morphine, and even more potent compared to oxycodone, thereby increasing the risk of death, see USSC, Fentanyl and Fentanyl Analogues, supra at 9, not least when the consumer is left unaware of its true nature.
An estimated 2,785 Hoosiers died from drug overdoses in 2021, a record high for the second year in a row, with 71 percent of those due to fentanyl or tramadol. See CDC, National Vital Statistics System: Provisional Drug Overdose Death Counts (2022). To appreciate fentanyl's increasing scale, the LaPorte County coroner recently reported that approximately 98 percent of drug overdose deaths in the county had been associated with fentanyl. See Press Release, United States Senator Todd Young, Young Discusses Fentanyl's Impact on Indiana Communities (May 11, 2022) available at https://www.young.senate.gov/newsroom/press-releases/video-young-discusses-fentanyls-impact-on-indiana-communities.
Mr. Marion's fentanyl trafficking is decidedly conservative on this record. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A). Though 2.5 kilograms of fentanyl are attributed today to him, the investigation captured a few months of the conspiracy's activity. Not long ago, the average fentanyl offender had 1700 grams (though less than 19 percent of federal offenders entered this drug weight tier). See USSC, Fentanyl and Fentanyl Analogues, supra at 26. One conspirator estimated that Mr. Marion obtained approximately 50,000 pills from Arizona every four months. In comparison, he and his conspirators had nearly 25,000 pills from just the June and July 2021 trips—more than the usual offender. If our country's statistics from last year hold true, on average that puts thousands of potentially lethal doses in the hands of unsuspecting Hoosiers—not a small concern given that one overdose had already occurred in April 2021. The operation was scaled to involve multiple individuals, locations, and sale locations.
Each pill weighed approximately 0.09 grams [¶ 32], so the approximate number of pills can be mathematically extrapolated from the drug weight figures.
Troublingly, four out of ten fentanyl-laced counterfeit prescription pills analyzed in 2021 contained a potentially lethal dose of fentanyl. See United States Dept. of Justice (DOJ) & United States Drug Enf't Admin. (DEA), One Pill Can Kill: Fake Pills Fact Sheet (2021).
Mr. Marion has been relentless in plaguing our communities with drugs, addiction, and the related social harms for his financial gain. See 18 U.S.C. § 3553(a)(1). This isn't the first time the court has seen a drug trafficker with prior drug dealing history. But Mr. Marion is more unusual than most. See 18 U.S.C. §§ 3553(a)(1), (a)(6). At age 45, he has amassed eighteen convictions—including eight drug convictions, with five of those for dealing. Rather than pivot to another enterprise when the law responds, he scales his operation larger. Several prior sentences have not deterred him (one as long as nine years), and reasonable alternatives have been ineffectual to date. There comes a time when incapacitation becomes the prevailing (indeed reasonably the sole) answer, particularly after 27 years of obstinate criminality. No one is above the law—not a king, nor a kingpin.
Mr. Marion emboldened his drug trafficking by stockpiling seven firearms—often loaded—and ammunition to protect his drug and money stash. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A). This is a deadly marriage. Customers and conspirators alike knew he had firearms; and he demonstrated that he was unafraid to threaten even his criminal partners with violence, or to use it. His first-time-firearm-offender status offers little comfort that his risk of recidivism is mitigating, see USSC, Recidivism of Federal Firearms Offenders Released in 2010 55 (2021) (68.6 percent rearrest rate for 924(c) firearm offenders in CHC IV), particularly when added to his almost certain chance he would return once more to drugs.
Recidivism often decreases with age, though age can "cut both ways." USSC, Older Offenders in the Federal System 8 (2022) (quoting United States v. Pacheco-Martinez, 791 F.3d 171, 180 (1st Cir. 2015)). Today's sentence not just accounts for this reality of age's reduction of this risk but also reasonably assures that Mr. Marion, devoted to drug dealing for years, won't be a potent danger to the community should his sentence tick off before the clock of life. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(C); see, e.g., United States v. Johnson, 685 F.3d 660, 662 (7th Cir. 2012).
Though commendably earning his GED in 2001, Mr. Marion earned income from fentanyl trafficking. See 18 U.S.C. § 3553(a)(1). He had employable skills, and other options despite any health challenges, but chose the allure of the quick buck. He last worked concertedly for about two years in 2017-2019. He too was just as steeped in addiction as his drug trade. His drug use began at a young age and escalated with his drug dealing. His parents, who faced their own challenges with drugs and alcohol, were largely absent. He struggled with abandonment issues that he attributed to his drug addiction. Mentoring figures have waned in his life at this point, but he has several close siblings. The company he otherwise kept tended to be conspirators, and at times fearful partners, who would not be reformative influences. See id.
Mr. Marion says he had colon and prostate cancer. He had prostate surgery but has yet to see a gastrointestinal doctor. In 2019-2021, he received treatment, including physical therapy, at the Franciscan Health and Woodland Cancer Care Center, but oddly three years of records show no cancer diagnosis. The court wishes Mr. Marion well with any medical treatment he needs. While incarcerated, he has received medical care, so nothing extraordinary counsels a variance beyond the sentence announced today. See 18 U.S.C. §§ 3553(a)(1), (a)(5); U.S.S.G. § 5H1.4.
Never presuming the recommended sentencing range to be right, see Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), the court notes that Mr. Marion had every opportunity to start at level 32 (and a recommended 168-210 months), and perhaps with the right choices lowered his culpability and need to promote respect for the law, see McKune v. Lile, 536 U.S. 24, 47, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). Instead, he adorned this conspiracy far beyond the average fentanyl dealer—not just with the worst drug, but leading a conspiracy with deadly misrepresentations, violence, firearms, and other conduct that enhances his culpability as compared to other offenders. See 18 U.S.C. §§ 3553(a)(1), (a)(2). Mr. Marion also approached this sentencing as though he had nothing to lose; but lying under oath had the opposite effect. See 18 U.S.C. § 3553(a)(2)(A). A lower sentence today would erase a reasonable accounting of his specific choices and create the very unwarranted sentencing disparities that the guidelines were designed to eliminate, noting his rather unique status. See 18 U.S.C. § 3553(a)(6).
Review of all § 3553(a) factors persuades the court that, a sentence of 384 months on count one and 60 months on count two, to be served consecutive to each other, is sufficient but not greater than necessary to satisfy federal sentencing goals.
On count one, the court must impose a term of supervised release of at least 5 years, 21 U.S.C. § 841(b)(1)(A); see U.S.S.G. § 5D1.2(c) (5 years); and on count two, the court may impose a term not more than 3 years, 18 U.S.C. § 3583(b)(2), see U.S.S.G. § 5D1.2(a)(1) (2-5 years). A term of 5 years on count one and 3 years on count two, to be served concurrently, is appropriate.
Mr. Marion cannot pay the fines recommended by the guidelines even if afforded the most generous of installment payment schedules, so the court imposes no fine. A special assessment of $100.00 on each count is mandatory. 18 U.S.C. § 3013(a)(2)(A).
SENTENCE
Accordingly, it is the court's judgment that the defendant, Rico Marion, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a total term of 384 months on count one and 60 months on count two to be served consecutively.
Under 18 U.S.C. § 3585, the court leaves it to the Bureau of Prisons to determine the appropriate amount of time served to be credited toward the defendant's sentence. The court recommends that the Bureau of Prisons designate as the place of the defendant's confinement, consistent with his security classification as determined by the Bureau of Prisons, a facility where he may participate in a residential drug abuse program (RDAP) and be reasonably near his family in Tennessee.
Upon release from prison, the defendant will be placed on supervised release for a term of 5 years on count one and 3 years on count two to be served concurrently. While on supervised release, he must comply with the conditions set forth in ¶¶ 181-192 of the revised presentence report, which paragraphs the court incorporates as part of this sentence having made an independent judgment that they should be imposed under 18 U.S.C. § 3583(d). The defendant expressly waived reading of these supervisory conditions.
The court imposes no fine. The defendant must pay to the United States a special assessment of $100.00 on each count, which is due immediately.
The court grants the defendant's motion to withdraw his objection to the organizer and leader enhancement [ECF 159] and grants the government's motion to dismiss the forfeiture allegations of the superseding indictment.
SO ORDERED.