UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4893
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAYMOND M. MARKER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-10)
Submitted: January 6, 2006 Decided: April 6, 2006
Before WILKINS, Chief Judge, and WILLIAMS and SHEDD, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Nils E. Gerber, Winston-Salem, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Douglas Cannon, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Raymond M. Marker appeals his convictions and sentence for 17
counts of mail and wire fraud, securities fraud, and money
laundering. We affirm Marker’s convictions. However, because the
district court imposed a sentence greater than that allowed by the
facts found by the jury alone, we vacate his sentence and remand
for resentencing. See United States v. Booker, 543 U.S. 220, 244
(2005); United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).
I.
Marker was arrested on December 17, 2003, and he was later
indicted on numerous charges related to his operation of a
fraudulent investment scheme. Following his arrest, the Federal
Public Defender’s Office was appointed to represent him.
In March 2004, Marker moved to dismiss appointed counsel,
claiming that counsel possessed neither the training nor ability to
handle a case this complex. Although the district court denied the
motion, Marker renewed his objections following a dispute with
counsel over the release of certain records to a receiver, who had
been appointed in a related civil matter. As a result of that
disagreement, Marker claimed that he no longer trusted his attorney
and could not work with him. The district court granted Marker’s
renewed motion but warned him of the perils of proceeding pro se
and offered to appoint substitute counsel. An impasse was reached
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when the district court would not allow Marker to interview
prospective counsel and, despite statements that he would move to
have certain seized funds released so that he could hire counsel,
Marker ultimately represented himself at trial.
At a status conference on June 10, 2004, four days before his
trial was to begin, Marker indicated that he was not prepared and
complained that he did not have access to a law library, a printer,
and other items. On June 14, 2004, when his case was called for
jury selection and trial, Marker renewed his complaints about not
being prepared and not having access to materials. Once it became
evident that the district court would not grant a continuance,
Marker announced that he had “had it [and would] not ...
participate” in his trial. J.A. 247.
As promised, Marker did not participate. He made no opening
or closing statements, presented no evidence, called no witnesses,
offered no objections, and conducted no cross-examination. As a
result, the Government presented evidence of Marker’s fraudulent
investment scheme unopposed, and the jury convicted Marker on all
17 counts. The jury thereafter returned a special verdict finding
that $857,000 was forfeitable to the Government.
At sentencing, the Government produced evidence demonstrating
that Marker had used mass-marketing techniques in promoting his
fraudulent investment scheme, had removed and concealed documents,
and had made fraudulent investment presentations to various foreign
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nations seeking investments totaling hundreds of millions of
dollars. Based upon this evidence, the district court calculated
the loss attributable to Marker’s actions to be at least $800
million.
Although Marker’s base offense level was six, this loss
finding resulted in an enhancement of 26 levels. See United States
Sentencing Guidelines Manual § 2S1.1(a)(1) (2001) (directing that
the offense level for money laundering is the offense level for the
offense from which the laundered funds were derived); id.
§ 2B1.1(a) (setting forth a base offense level of six for fraud
offenses); id. § 2B1.1(b)(1)(N) (providing for a 26-level
enhancement for loss greater than $100 million). The district
court assessed an additional five offense levels because (1)
Marker’s offense involved more than ten victims and was committed
through mass-marketing, see id. § 2B1.1(b)(2)(A); (2) Marker was
convicted under 18 U.S.C.A. § 1957 (West 2000), see id.
§ 2S1.1(b)(2)(A); and (3) Marker obstructed justice, see id.
§ 3C1.1. The resulting total offense level of 37, combined with
Marker’s criminal history category of I, produced a guideline range
of 210-262 months imprisonment. However, the court granted
Marker’s motion to depart on the basis that the offense level
overstated the seriousness of the offense and reduced the offense
level to 31, producing a guideline range of 108-135 months. The
district court sentenced Marker to 110 months imprisonment.
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II.
We have reviewed Marker’s challenges to his convictions and
find them to be without merit. We therefore consider Marker’s
sentence.
Marker argues, and the Government concedes, that the sentence
imposed by the district court violated his Sixth Amendment rights
because it exceeded the maximum sentence authorized by the jury
verdict alone. See Booker, 543 U.S. at 244. Because Marker
objected below based on Blakely v. Washington, 542 U.S. 296 (2004),
his Booker claim is reviewed for harmless error. See United States
v. Rodriguez, 433 F.3d 411, 415-16 (4th Cir. 2006). By our
calculations, the facts found by the jury authorized an offense
level of 21 and a guideline range of 37-46 months. This is,
obviously, far less than the sentence actually imposed by the
district court.
III.
For the reasons set forth above, we affirm Marker’s conviction
but vacate and remand for resentencing. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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