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United States v. Marks

United States Court of Appeals, Seventh Circuit

July 24, 2017

United States of America, Plaintiff-Appellee,
v.
Crane Marks, Defendant-Appellant.

          Argued June 7, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 CR 330-9 - Virginia M. Kendall, Judge.

          Before Ripple, Rovner, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         This appeal illustrates why, when an arcane and arbitrary issue arises under the Sentencing Guidelines, the sentencing judge should ask, "Why should I care?" That question was not asked here, so we must remand for resentencing.

         Defendant-appellant Crane Marks pled guilty to conspiring to distribute heroin. He was sentenced to nine years in prison (108 months). That sentence is either well above or well below the advisory range under the Sentencing Guidelines, depending on one issue in calculating Marks' criminal history. The district court decided the issue against Marks, and he has appealed his sentence.

         In all candor, that one issue seems astonishingly technical and trivial. It has nothing to do with Marks' culpability or the larger goals of sentencing. As we explain below, the issue is whether, when Marks was imprisoned on his fourth state drug conviction in 2000, he also had his state parole revoked on any of his earlier state drug convictions and was re-imprisoned on that revocation as well. From this description of the issue, we hope readers will agree that this is one of those guideline issues that should prompt the sentencing judge to ask why the judge or anyone else should care about the answer.

         Because the issue seems so technical and trivial, we have examined the record in this case for any signs that the judge would have given Marks the same sentence regardless of how the technical criminal history issue was resolved. We found no such signs, however, so we have considered the technical guideline issue on the merits. We conclude that the court made both a legal error and a factual error. The legal error was that the court did not make the finding needed to treat Marks as a career offender under the Guidelines. The factual problem is that the court was not presented with reliable evidence from which it could have found that Marks was imprisoned on a revocation of parole on any earlier conviction. That means that Marks does not qualify, technically, as a career offender. His advisory guideline sentencing range is lower than the range found by the district court. We therefore vacate Marks' sentence and remand for resentencing.

         To explain, in October 2013, Marks joined a conspiracy to distribute heroin in violation of 21 U.S.C. §§ 846 & 841(a)(1). In 2015 he pled guilty to that crime. At the time of plea negotiations, the government knew that Marks had been convicted of controlled-substance offenses in state court in 1994, 1995, 1996, and 2000. The government did not then believe Marks was a career offender under U.S.S.G. § 4B1.1 because of the age of the offenses from the 1990s. For the career-offender Guideline to apply, at least two of those four convictions would need to count for criminal history points. See U.S.S.G. § 4B1.1 (a) (3). For a conviction to be counted, Marks had to have been still serving a sentence of imprisonment on that conviction within 15 years of his commencement of the offense of conviction in this case. See U.S.S.G. § 4A1.2(e)(1).

         Since Marks commenced his involvement in the conspiracy in October 2013, a prior conviction counts under the Guidelines only if he was incarcerated on the conviction after October 1998. The 2000 conviction definitely counts. The question is whether any of the 1990s convictions count. The parties agree that Marks was paroled on all of the 1990s offenses in June 1998. But if his parole was revoked for any of the 1990s offenses when he committed the new drug crime in 2000, the term of incarceration on the revocation would fall within the 15-year window, the conviction would count, see § 4Al.2(k)(2)(A), and Marks would be treated properly as a career offender under § 4B1.1 (a).

         In their plea agreement, the parties acknowledged that Marks would receive criminal history points only for the 2000 conviction, not the earlier offenses. On that understanding they projected a guideline prison range of 51 to 63 months. The probation officer who wrote the presentence report came to a different conclusion. Based on handwritten records from the Illinois Department of Corrections, the officer concluded that Marks' imprisonment in 2000 was based not only on his 2000 conviction but also on revocation of his parole for one or more of the earlier convictions.

         There is no formal court order revoking parole. The IDOC records, which are appended to the presentence report, do not include any narrative explaining whether Marks' parole was revoked or what type of custody he was in at any particular time. The three records read in their entirety as follows:

Case #94CR7913

Case #95CR21777

Offense Date: 2-21-94

Offense Date: 6-22-95

Date Sentenced: 8-15-95

Date Sentenced: 8-15-95

Admitted to IDOC: 8-18-95

Admitted to IDOC: 8-18-95

Escape Out: 2-21-96

Escape Out: 2-21-96

Escape Return: 2-28-96

Escape Return: 2-28-96

Escape Out: 4-4-96

Escape Out: 4-4-96

Escape Return: 7-26-96

Escape Return: 7-26-96

Discharge of Sentence: 5-22-00

Discharge of Sentence: 5-22-00

Case #96CR1549301

Offense Date: 5-7-96

Date Sentenced: 7-23-96

Admitted to IDOC: 7-26-96

Parole Out: 6-26-98

Violator Return: 2-8-00

Discharge of Sentence: 6-26-00


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