United States Court of Appeals
For the First Circuit
No. 03-1937
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL MARKS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Lynch, Lipez and Howard,
Circuit Judges.
Joseph H. Groff, III, with whom Jensen, Baird, Gardner & Henry
was on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
April 30, 2004
HOWARD, Circuit Judge. On June 26, 2002, Michael Marks
pleaded guilty to numerous charges arising out of his distribution
of prescription drugs to acquaintances, primarily troubled teenage
girls. Marks appeals his sentence, alleging that the district
court improperly included drugs personally consumed by Marks in its
calculation of the total amount of drugs at issue. We affirm.
I. Factual and Procedural Background
The following facts are drawn from the presentence
investigation report and transcripts of the defendant’s change-of-
plea and sentencing hearings. See United States v. Santos, 357
F.3d 136, 138 (1st Cir. 2004). Since age 16, Michael Marks had
been prescribed powerful medications, including narcotics, to
control what his treating doctors believed to be the symptoms of
rare neuromuscular diseases. In September 1998, at age 18, Marks
moved out of his mother’s home and into his own apartment. In the
period that followed, Marks gave his prescription medications to at
least ten minor girls and others in exchange for money,
merchandise, companionship and friendship. In late 2000 and
throughout 2001, Maine state police and drug enforcement agents, as
well as agents from the U.S. Department of Health and Human
Services, investigated Marks’s distribution of his medications, all
of which were paid for by Medicaid.
In November 2001, Marks was indicted on fifty-eight
counts relating to his distribution of prescription medications.
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These included three counts of maintaining residences in Mexico,
Maine, and Rumford, Maine, to distribute controlled substances
(Counts 1-3); fifty-three counts of possession with intent to
distribute controlled substances between May 18, 1998, and October
19, 2000 (Counts 4-56)1; one count of distributing a controlled
substance to a person under the age of 21 (Count 57); and one count
of health care fraud (Count 58). In June 2002, Marks pleaded
guilty after the government agreed, inter alia, to dismiss six
charges of possession with intent to distribute morphine sulfate.
As part of his guilty plea, Marks stipulated that, as to the
prescriptions for the other drugs at issue in the remaining counts,
he “did distribute or intend to distribute to other persons one or
more pills from each prescription.”
In June 2003, the district court held evidentiary
hearings to determine the quantity of drugs Marks possessed with
intent to distribute. The government presented the testimony of
seven of the defendants’ acquaintances, all of whom reported that
they had received prescription drugs from the defendant or had
witnessed him giving drugs to other people. Collectively, these
witnesses described a pattern of drug distribution that began at
some point in 1998, and continued at least through the summer of
1
These counts involved six separate drugs: oxycodone (also
known by the trade name Roxicet), morphine sulfate (MS Contin or
MSIR), hydrocodone bitartrate (Vicodin), dronabinal (Marinol),
propoxyphene (Darvocet), and diazepam (Valium).
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2000. During this time, Marks dated a string of girls from the
local alternative education high school, freely dispensing drugs to
them and to their friends on lunch breaks, after school and on the
weekends. One former girlfriend, Carmen Trice, testified that
Marks gave her fistfuls of pills on hundreds of occasions. Trice
recalled one instance in particular when she accompanied Marks to
more than one pharmacy in an effort to fill a prescription for
morphine sulfate and that, when he was finally successful, he gave
her five to ten of the pills. Most of the witnesses reported
taking a variety of pills, including Valium, Vicodin, Percocet (a
form of oxycodone), and morphine sulfate, but typically could not
recall specifics about what they took or when they received
particular pills.
Marks’s apartment was described as a local hangout where
some of the witnesses spent time on a daily basis. Prescription
bottles were seen throughout the apartment. Marks would sometimes
leave his visitors alone in the apartment, and he did not
discourage them from helping themselves to pills (which some of the
witnesses did on occasion).
Few of Marks’s acquaintances saw him take his own
medicine. One of his former girlfriends, Rhonda Welch, testified
that she had lived with him for several months at the end of 1999
and the beginning of 2000, and that she saw him take pills very
rarely, possibly twice a month. She also testified that, on
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approximately ten occasions, the defendant had gone to the
emergency room to get a shot rather than take his medication and
that, on these visits, his legs would shake “[w]hile the doctors
were in the room.” Most witnesses reported that the defendant did
not appear to be limited physically, providing specific examples of
the defendant walking up and down stairs regularly, moving his
furniture in and out of his apartments, shoveling his driveway, and
picking up his rottweiler dog.
Marks told two of the witnesses, both young men, that he
used the pills to get girls to sleep with him, telling one of them
that if you slipped pills into a girl’s drink, “you could have all
the fun you wanted.” This witness, Eric Welch (the brother of
Rhonda Welch), also described Marks’s reaction when Marks was
visited at home by a Maine state police detective. After being
interviewed, Marks went through the apartment, collecting pill
bottles in a plastic bag. Welch helped by holding the bag while
Marks pulled pill bottles “from everywhere,” including above the
ceiling tiles and in a kitchen drawer. Marks tried unsuccessfully
to have a friend keep the bag (which also contained photos of naked
girls, a few videotapes and a video camera) at her house.
In addition to Marks’s acquaintances, the government
presented the testimony of Dr. Brian McCann, an emergency room
physician who examined Marks in May 1999. He testified that the
nurses who treated Marks noticed that Marks’s tremors and spasms
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diminished when he did not think he was being observed. In another
emergency room visit in March 2001, Marks reported that he had been
taking his medication but that it was not controlling his pain.
Dr. McCann found Marks’s presentations suspicious and ordered a
drug test. The test revealed that Marks had not been taking any of
his prescribed medications.
The government also introduced the testimony of Dr.
Anthony Amato, the chief of the neuromuscular division of Brigham
& Women’s Hospital in Boston. In March 2002, Dr. Amato examined
Marks at the request of his treating physician to determine whether
Marks had “stiff person syndrome,” an autoimmune disease causing
muscle stiffness and spasms. Dr. Amato found that Marks’s arms and
legs would jerk during the examination, except when Marks was
distracted. He concluded that Marks was physically normal and
recommended that he cease his prescription medication regimen.
Marks took the stand during the evidentiary hearing. He
acknowledged giving away some of his prescription medications but
also maintained that he took his pills fairly regularly. He
testified that he took his pills in the morning and at night when
other people were not around and that he sometimes skipped his
afternoon pills because he did not like taking any more medication
than necessary. He admitted to giving away a few Percocets but
stated that he consumed the vast majority of these pills (a total
of 120 pills obtained through a prescription in May 1998 and
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another in September 1998). He could not recall giving away any
morphine sulfate, the drug that was charged in the six dismissed
counts of possession with intent to distribute. On cross
examination, Marks acknowledged that he had been told by his
probation officer that the charges involving oxycodone and morphine
sulfate carried a much higher sentence than the remaining
possession with intent to distribute charges. He also stated that
he could not recall whether he had denied giving away Valium or
Vicodin in an August 2001 interview with an agent of the Department
of Health and Human Services. On rebuttal, that agent testified
that Marks had in fact denied giving these drugs away and had
claimed that his mother controlled his medications.
Marks was sentenced on June 13, 2003. The district court
found that the drugs Marks obtained in the period before he moved
into his own apartment (namely those prescriptions filled between
May 18, 1998 and July 14, 1998) were obtained with the intent that
Marks would consume them himself. It therefore excluded the drug
amounts described in the first seven possession charges, including
half of the oxycodone at issue in the case. The court also found,
however, that, beginning in September 1998, Marks’s drug purchases
were made with the intent that most of the pills would be
distributed to others:
[Marks] obtained the pills as part of a
unified effort to gain possession of them with
the intent that any or all of them would be
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available to him for distribution to others as
the occasion struck him to do so. These pills
were a store of pills, any of which could be
distributed, as he wished, from time to time.
The possession of them, even if, in fact, some
were used by the Defendant on occasion, are,
accordingly, to be considered part of the
relevant offense conduct since Defendant’s
possession[] of the two categories of pills
are inextricably intertwined with each other.
Memorandum of Sentencing Judgment at 2.
After determining Marks’s base offense level for the
possession charges based on the drugs obtained between September
1998 and October 2000, the district court concluded that Marks was
not entitled to a two-level “safety valve” decrease of his offense
level, see U.S. Sentencing Guidelines Manual (USSG) § 2D1.1(b)(6)
(permitting a two-level decrease for defendants who satisfy all
criteria of USSG § 5C1.2), because the government had reasonably
represented that Marks had not satisfied U.S. Sentencing Guidelines
§ 5C1.2(5). This provision requires a defendant to truthfully
provide all information that he has about his offenses. The court
also increased Marks’s offense level by two levels because his
offenses involved minors. See USSG § 3B1.4.
The court made other adjustments to Marks’s offense
level, including an increase to account for the remaining charges
not grouped with the possession with intent to distribute counts
and a two-level decrease to reflect Marks’s acceptance of
responsibility. In denying a third level of reduction on the basis
of acceptance of responsibility, the court specifically found that:
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[Marks] has not been truthful and candid with
the Government, the probation officer, or in
his testimony before the Court as to the
quantities of pills he actually consumed
himself and that he has misrepresented those
quantities for the deliberate and self-serving
purpose of influencing the calculation of the
Guideline range in his favor.
The district court sentenced Marks to thirty-seven
months’ imprisonment and a three-year supervised release term. It
waived any fines based on Marks’s inability to pay but ordered
Marks to pay $1,596.39 in restitution to Medicaid and a special
assessment of $4,900.00. This appeal followed.
II. Analysis
We review the district court’s findings of fact for clear
error and its legal determinations, including its interpretation of
the sentencing guidelines, de novo. United States v. Reyes-
Echevarria, 345 F.3d 1, 6 (1st Cir. 2003). At sentencing, the
government bears the burden of proving drug quantity by a
preponderance of the evidence. United States v. Sklar, 920 F.2d
107, 112 (1st Cir. 1990). The district court may choose between
plausible estimates of drug quantity but must “err on the side of
caution.” Id. at 113.
In determining the quantity of drugs involved in the
offense, the district court was entitled to consider “relevant
conduct,” namely all drugs “that were part of the same course of
conduct or common scheme or plan as the offense of conviction.”
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USSG § 1B1.3(a)(2); see also USSG § 2D1.1, cmt. n.12 (“Types and
quantities of drugs not specified in the count of conviction may be
considered in determining the offense level.”). Marks’s principal
contention on appeal is that the district court erred in including
in its quantity calculation all drugs acquired between September
1998 and 2000 without deducting quantities of oxycodone and
morphine sulfate that he consumed and therefore could not have been
intended for distribution to others.2 In pressing this argument,
Marks contends that all circuit courts that have considered the
question have held that drugs intended for personal use should not
be included in drug quantity calculations on a charge of possession
with intent to distribute. See United States v. Gill, 348 F.3d
147, 153 (6th Cir. 2003); United States v. Williams, 247 F.3d 353,
358 (2d Cir. 2001); United States v. Fraser, 243 F.3d 473, 475-76
(8th Cir. 2001); United States v. Wyss, 147 F.3d 631, 632 (7th Cir.
1998); United States v. Kipp, 10 F.3d 1463, 1465-66 (9th Cir.
1993). But see Fraser, 243 F.3d at 476-78 (Hansen, J., dissenting)
(arguing for inclusion of drugs intended for personal use and
acquired at the same time as drugs intended for distribution);
United States v. Jansen, 218 F. Supp. 2d 639 (M.D. Pa. 2002)
(similar).
2
Although Marks has not admitted possessing with intent to
distribute all of the other four drugs (approximately 2,400 pills)
identified in the indictment, these pills have relatively little
effect on sentencing, unlike the oxycodone and morphine sulfate.
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Marks’s invocation of this split of authority is a red
herring. The district court did not find that any of the drugs
Marks acquired in or after September 1998 were possessed with the
intent that they would be personally consumed. Instead, as set
forth above, the court made a contrary finding: that the pills
were "obtained . . . as part of a unified effort to gain possession
of them with the intent that any or all of them would be available
for distribution to others . . . ." In other words, the court
found that each and every pill Marks acquired in or after September
1998 was acquired with the intent that it would or could be
distributed. In our view, this finding differentiates this case
from the cases Marks cites in support of his argument. That Marks
eventually consumed a few of the pills himself does not negate his
prior distributive intent (which the court found applicable to each
of the pills Marks acquired) as a matter of fact or logic. Nor
does the general knowledge that some small number of the pills he
was acquiring to distribute would, in fact, likely end up in his
own mouth. As the district court recognized, one can purchase a
bottle of pills with the intention of distributing them while at
the same time having a contingent intention to take a few himself
if the spirit so moves him.3
3
For this same reason, we reject Marks's argument that the
district court erred in considering a morphine sulfate prescription
that he returned to the pharmacy and exchanged for a different
formulation. In our view, in including these pills in the drug
quantity calculation, the district court supportably found that the
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Marks alternatively attacks the district court’s factual
determinations regarding his possession of oxycodone and morphine
sulfate. Faulting the court’s analysis as failing to recognize
that he treated these drugs differently from the others he
distributed, he alleges that “[t]he preponderance of the evidence
supports a finding [of intent] to distribute, at most, a handful of
these two types of pills.”4 Again, we note that the district court
specifically found that Marks had not been truthful about the
quantities of pills he consumed, and that he had “misrepresented
those quantities for the deliberate and self-serving purpose of
influencing the calculation of the Guideline range in his favor.”
Because the other drugs at issue in this case have virtually no
effect on sentencing, we interpret the district court’s statement
returned prescription had been obtained with the intention that the
pills would be available for distribution if Marks chose.
4
On appeal, the bulk of Marks’s arguments regarding morphine
sulfate relate to the district court’s fact findings as to his
intent in possessing the drug. But Marks also notes, without
elaboration, that he did not plead guilty to the charges involving
morphine sulfate. To the extent this comment can be interpreted as
an allegation of legal error based on the consideration of drug
quantities that were the subject of dismissed counts -- and,
perhaps more importantly, to the extent we can even consider such
an undeveloped argument, see United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) (“It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel’s work”) -- we reject it. See USSG § 1B1.3 cmt. background
(“Conduct that is not formally charged or is not an element of the
offense of conviction may enter into the determination of the
applicable guideline sentencing range.”); see also United States v.
Carrozza, 4 F.3d 70, 80 (1st Cir. 1993) (“Relevant conduct
increases a defendant’s sentence, sometimes very significantly,
despite the fact that it was not charged in an indictment.”).
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as a finding that Marks lied about how much oxycodone and morphine
sulfate he consumed. Such a conclusion entitles the district court
not only to reject Marks’s testimony but also to conclude that
Marks had a motive to lie, namely to conceal the quantity of drugs
he distributed and intended to distribute. See generally United
States v. Jimenez-Perez, 869 F.2d 9, 11 (1st Cir. 1989)
(concluding, in jury-trial context, that factfinder was entitled to
conclude that defendants’ fabricated stories were “all the more
proof of their guilt”).
Independent of Marks’s testimony, the court heard
evidence that Marks distributed oxycodone and morphine sulfate to
various witnesses; that he rarely took his medication; that he kept
stockpiles of pills in his apartment; that he refilled his
prescriptions while he still had medication left; that he bragged
about using pills to attract teenage girls; and that he attempted
to dispose of his pills once he knew he was under investigation.
This and other evidence introduced at the hearing allowed the
district court to draw reasonable inferences regarding Marks’s
intent in possessing the drugs, including the oxycodone and
morphine sulfate. The district court’s fact findings were not
clearly erroneous. See United States v. Rodriguez, 336 F.3d 67, 72
(1st Cir. 2003) (“Where there is more than one plausible view of
the circumstances, the sentencing court's choice among supportable
alternatives cannot be clearly erroneous.”).
Affirmed.
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