United States v. Marsh

United States Court of Appeals
For the First Circuit

No. 07-1698

UNITED STATES OF AMERICA,

Appellee,

v.

MATTHEW MARSH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Lynch, Chief Judge,

Merritt* and Howard, Circuit Judges.

Alan Jay Black for appellant.
Lisa M. Asiaf, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

April 1, 2009

*
Of the Sixth Circuit, sitting by designation.
 HOWARD, Circuit Judge. Matthew Marsh ("Marsh") pled

guilty to three counts of distributing and conspiring to distribute

crack cocaine. He was sentenced to a total of eleven years'

imprisonment. The sentence was comprised of a statutory mandatory

minimum of ten years and an additional year resulting from an

upward departure from the applicable Sentencing Guidelines range.

The departure was based on conduct underlying certain state-court

convictions that had been vacated less than two weeks prior to

Marsh's federal sentencing. This appeal is limited to Marsh's

claim that the one-year upward departure was improper, and thus

that his sentence was unreasonable. We affirm, and in so doing, we

reject the dissent's view that the district court impermissibly

considered the conduct underlying the vacated convictions.

I.

As this appeal focuses exclusively on Marsh's sentencing,

we will often refer to, and liberally borrow from, the district

court's published sentencing memorandum. United States v. Marsh,

486 F. Supp. 2d 150 (D. Mass. 2007). In April 2005, a federal

investigation into crack cocaine sales in the Fitchburg,

Massachusetts area led to Marsh's indictment on charges of

conspiracy to distribute cocaine base (Count 1), distribution of

cocaine base, and aiding and abetting distribution (Counts 2 and

3).1

1
See 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

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 In November 2005, the government filed an information

pursuant to 21 U.S.C. § 851, announcing its intention to rely on

Marsh's 1996 federal drug conviction to increase his mandatory

minimum sentence from five years to ten. See 21 U.S.C. § 841

(b)(1)(B). Approximately a year later, Marsh signed a plea

agreement acknowledging both the 1996 conviction and the applicable

ten-year mandatory minimum sentence. The plea document also noted

-- for purposes of Sentencing Guidelines calculations -- the

parties' agreement on the drug weight attributable to Marsh and his

acceptance of responsibility. The government agreed to recommend

a sentence at the low end of the Guideline range determined by the

court, subject to the mandatory minimum sentence. Marsh pled

guilty on October 23, 2006, in accordance with the plea agreement.

In January 2007, the probation office issued a

presentence report ("PSR"). At first blush, the PSR followed the

contours of the plea agreement, and its Guidelines calculation

yielded a sentencing range of 70-87 months' imprisonment, a figure

which was supplanted by the 120-month mandatory minimum. See

U.S.S.G. § 5G1.1(b). But the PSR went further, advising that Marsh

was a career offender, pursuant to U.S.S.G. § 4B1.1, and increasing

the Guideline sentence from the 120 months contemplated by the plea

agreement to a range of 262-327 months. In reaching its

conclusion, the PSR relied upon two separate Massachusetts

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convictions for resisting arrest in 2000 and 2004 as predicates to

invoke the career offender guideline.2

Although Marsh filed a substantive objection to the PSR,

he also filed motions in state court to vacate the two resisting

arrest convictions, asserting that he was suffering from various

psychological disorders at the time he pled guilty in those cases.

The motions were supported by an affidavit from a forensic

psychologist. The motions were successful, and the state court

convictions were vacated nine days before the rescheduled federal

sentencing hearing.3

In the wake of the vacated state court convictions, the

district court identified two specific areas of concern upon which

he invited further briefing: whether Marsh's psychological health

rendered his federal guilty plea in the instant matter

constitutionally deficient; and whether the court could take into

consideration the conduct underlying Marsh's now-vacated

convictions -- as opposed to the convictions themselves -- in

making its sentencing determination. Prior to the hearing, Marsh

2
As relevant here, a defendant is a career offender if the
current conviction is a felony crime of violence or controlled
substance offense, and he has at least two prior felony convictions
that are either a crime of violence or a controlled substance
offense. See U.S.S.G. § 4B1.1(a). Whether the resisting arrest
convictions would have properly qualified as "crimes of violence"
is not before us on appeal.
3
The district court previously granted Marsh's request to
continue his sentencing hearing while he sought redress in the
state court.

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essentially abandoned any claim that his guilty plea was invalid.

The court acknowledged this during the hearing and explicitly found

that there was no reason to vacate Marsh's plea. Whether Marsh's

mental health invalidated his plea is not before us on appeal.

The court next concluded that it could consider the

conduct underlying the vacated state-court resisting arrest

convictions.4 According to the PSR, Marsh's first resisting arrest

conviction came in October 1999, when he kicked a police officer

who was trying to arrest him for disturbing the peace at a

Leominster, Massachusetts restaurant. His second came in April

2004, when he refused to comply with Fitchburg police officers'

orders to leave a disturbance at a local pub. The court proceeded

to address the impact of these incidents on its sentencing

guidelines calculation. As the court first noted, Application Note

6 to U.S.S.G. § 4A1.2 allows the sentencing court to depart upward

if a defendant's criminal history category does not adequately take

into account the underlying conduct in vacated convictions. In so

doing, the Guidelines envision the court employing the "criminal

history category applicable to defendants whose criminal history or

likelihood to recidivate most resembles the defendant's." See

U.S.S.G. § 4A1.3(a)(4)(A). In this case, however, even a departure

to the highest criminal history category, VI, combined with Marsh's

4
While Marsh opposed such consideration at sentencing, he has not
briefed it on appeal, and thus we deem the issue waived. Negrón-
Almeda v. Santiago, 528 F.3d 15, 25 (1st Cir. 2008).

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offense level of 23, yielded a sentencing range below the 120-month

mandatory minimum, rendering the court's consideration of any such

departure moot.

The court then considered moving "vertically" along the

offense level axis of criminal history category VI to find an

appropriate guideline range, as suggested by U.S.S.G. §

4A1.3(a)(4)(B), but the court ultimately concluded that Marsh's

case was not sufficiently "extreme" nor his conduct sufficiently

"egregious" to support such a mode of departure. Marsh, 486 F.

Supp. 2d at 157 (citing United States v. Hardy, 99 F.3d 1242, 1248

(1st Cir. 1996)).

The court next turned to U.S.S.G. § 5K2.0(a)(1)(A), which

allows for upward departures if the court finds "an aggravating .

. . circumstance of a kind, or to a degree, not adequately taken

into consideration" by the Guidelines. Marsh, 486 F. Supp. 2d at

157. The district court noted that such departures usually involve

the offense of conviction, rather than past criminal conduct, id.

(citing Hardy, 99 F.3d at 1248), but decided nonetheless that the

case was "exceptional" within the meaning of § 5K2.0

because the guidelines do not contemplate the
peculiar constellation of events presented by
this case. Although the guidelines
contemplate that convictions might be vacated,
they do so only in the context of considering
whether a criminal history category adjustment
is appropriate. The Sentencing Commission
does not appear to have considered a situation
such as the present one, where convictions
have been vacated that might otherwise affect

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 the sentencing range under the career offender
guidelines (but not the range based on the
ordinary offense level and the criminal
history category), and where there is reliable
evidence concerning the conduct underlying the
convictions. The Court therefore concludes
that there exists here an aggravating
circumstance of a kind, or to a degree, not
adequately taken into consideration by the
Sentencing Commission in formulating the
guidelines within the meaning of §
5K2.0(a)(1)(A).

Id. at 158.

In arriving at its ultimate conclusions, the court first

noted that it had considered a sentence closer to the career

offender guideline, "to avoid rewarding defendant's inconsistent

and arguably manipulative positions regarding his mental health,

and to treat him in substance as a career offender." Id. The

court eschewed this avenue, however, and decided that a more modest

upward departure was appropriate, resulting in a sentence closer to

the ten-year minimum. Id. The court reasoned that the mandatory

minimum sentence did not take into account the conduct underlying

the vacated convictions, which the judge described as "violent and

anti-social." Id. The court also expressed concern that the

minimum sentence would result in "the defendant receiving the exact

same sentence that he would have received had he not engaged in

that behavior." Id.

The court also noted certain mitigating factors,

including the fact that the government -- pursuant to the plea

agreement -- was not seeking a departure, that Marsh did have

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mental health issues, and that the two vacated convictions were not

deemed serious by Massachusetts authorities, as they were punished

with a small fine and seven-months' probation, respectively. Id.

158-59. Taking all these factors into account, the court settled

on a twelve-month departure, and thus a sentence totaling 132

months. Id. at 159.

Two other pieces of the district court's sentencing

mosaic are relevant to this appeal. First, after announcing the

sentence, the court added the following footnote:

The Court notes that it would impose the same
sentence as a non-guideline sentence under 18
U.S.C. § 3553(a). In particular, the sentence
imposed protects the public from further
crimes by defendant; provides him with
necessary mental health treatment; promotes
respect for the law; provides just punishment
for the offense; and affords adequate
deterrence to criminal conduct.

Id. at 159 n.11.

Finally, the court concluded its memorandum with the

following commentary:

Vacating state court convictions for strategic
purposes, particularly to avoid federal
sentencing consequences, has lately become
commonplace, if not routine. Under the
hydraulic pressures of lengthy prospective
sentences in the federal system, the impulse
by defendants to vacate prior convictions is
entirely understandable. Yet the process is
nonetheless deeply troubling. A felony
conviction is, and ought to be, a profoundly
significant event. Its importance goes well
beyond its immediate consequences, such as
punishment; sentencing decisions in every
jurisdiction in the United States are driven

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 in great measure by the criminal history of
the defendant. Felony convictions should
neither be imposed nor overturned lightly, and
under no circumstances should they be treated
like a Las Vegas marriage, to be annulled when
they become burdensome or inconvenient.
Vacating long-standing convictions for
strategic purposes also serves to erode public
confidence in the criminal justice system. If
the process is perceived to be readily
manipulable, or even dishonest, the damage to
that confidence is likely to be substantial
indeed.

Id. (citation omitted).

II.

Marsh makes two sentencing arguments on appeal. We

quickly dispose of one. Marsh contends that it was necessary to

prove to a jury beyond a reasonable doubt the predicate drug

conviction that increased his mandatory minimum sentence under 21

U.S.C. § 841(b)(1)(B). We continue, however, to be bound by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), in which

the Court found that such proof was unnecessary to support a

sentence enhancement, id. at 226-27, and we have applied the same

reasoning to mandatory minimum sentences. United States v. Coplin,

463 F.3d 96, 104-05 (1st Cir. 2006).

We next examine Marsh's ultimate sentence. We review the

sentence imposed by the district court for reasonableness. This

involves an examination of both the procedural aspects of

sentencing and the substance of the sentence. United States v.

Politano, 522 F.3d 69, 72 (1st Cir. 2008) (citing Gall v. United

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States, U.S. , , 128 S. Ct. 586, 597 (2007)). Our first

task is to determine whether the district court made any procedural

errors "'such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing

to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain

the chosen sentence -- including an explanation for any deviation

from the Guidelines range.'" Id. (alteration in original) (quoting

Gall, 128 S. Ct. at 597) .

If the district court has committed no such procedural

error, we then review the "substantive reasonableness of the

sentence imposed and review the sentence for abuse of discretion."

Id. (citing United States v. Martin, 520 F.3d 87, 92-93).

Consonant with Gall, we afford the district court wide discretion

in sentencing. "[A]fter the court has calculated the GSR,

'sentencing becomes a judgment call, and a variant sentence may be

constructed based on a complex of factors whose interplay and

precise weight cannot even be precisely described.'" Id. at 73

(quoting Martin, 520 F.3d at 92). Ultimately, "'[T]he lynchpin of

a reasonable sentence is a plausible sentencing rationale and a

defensible overall result.'" Id. (quoting Martin, 520 F.3d at 96).

Here, Marsh challenges only the twelve-month upward

departure from his mandatory minimum sentence. He argues that the

court incorrectly applied U.S.S.G. § 5K2.0. At bottom, Marsh

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disputes the district court's conclusion that the combination of

his vacated state court convictions and the limitation placed on

§ 4A1.3 by the mandatory minimum "constitutes an aggravating

circumstance not taken into account by the Guidelines." Marsh

argues that, as the district court acknowledged, § 5K2.0 departures

ordinarily address unusual aspects of the offense of conviction,

rather than under-representation of past criminal conduct, which

was the overriding consideration in this case. Marsh, 486 F. Supp.

2d at 157 (citing Hardy, 99 F.3d at 1248).

This Guideline issue is not one we need to resolve. As

previously noted, the district court stated that it would have

imposed the same sentence as a non-Guideline sentence under 18

U.S.C. § 3553(a). Marsh, 486 F. Supp. 2d at 159 n.11. If we find

an alleged Guideline error would not have affected the district

court's sentence, we may affirm. See United States v. Teague, 469

F.3d 205, 209-10 (1st Cir. 2006) (citing Williams v. United States,

503 U.S. 193, 203 (1992)). That is precisely the situation with

which we are presented -- the district court stated that it would

have reached the same result in a non-Guideline setting.

While the district court's explicit acknowledgment of §

3553(a) was brief, we do not require the court to "address those

factors, one by one, in some sort of rote incantation when

explicating its sentencing decision." United States v. Dixon, 449

F.3d 194, 205 (1st Cir. 2006). Moreover, our review of the

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district court's sentencing decision convinces us that the various

factors listed in the court's footnoted reference to section

3553(a) were suitably addressed at other points in the decision.

For example, the lengthy discussion of Marsh's past criminal

conduct clearly supports the court's conclusion that the sentence

"protects the public from further crimes by defendant." Marsh, 486

F. Supp. 2d at 159 n.11; see 18 U.S.C. § 3553(a)(2)(C).

The dissent contends that the district court, by

considering the conduct underlying Marsh's vacated resisting arrest

convictions, ran afoul of both Shepard v. United States, 544 U.S.

12 (2005) and Cunningham v. California, 549 U.S. 270 (2004). We

reject that contention, as neither case applies to these

circumstances. Cunningham held that California's sentencing regime

violated defendants' Sixth and Fourteenth Amendment right to a jury

trial by allowing a judge to find facts that could lead to a

sentence in excess of a statutory minimum. 549 U.S. at 274. Marsh

was facing a statutory maximum life sentence, 21 U.S.C. §

841(b)(1)(B), and thus Cunningham is not implicated.

In Shepard, the Court limited the range of information

upon which a sentencing judge may rely in determining whether a

defendant's prior convictions were "violent felonies" within the

meaning of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §

924(e). 544 U.S. at 16. We have never extended Shepard's holding

beyond the realm of the ACCA or the Career Offender Guideline,

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U.S.S.G. § 4B1.2, and that case is not implicated here, either.

Indeed, in Hardy we explicitly approved a district court's

consideration of charged conduct underlying vacated convictions in

connection with U.S.S.G. § 4A1.3, as the district court did here.

And where, as here, the defendant did not contest the reliability

of the information, the district court was free to credit the

descriptions contained in the PSR. Hardy, 99 F.3d at 1251.

The district court also noted that the sentence would

provide treatment for Marsh's mental health, an issue brought to

the fore by Marsh and which played a significant role in the

sentencing process, 18 U.S.C. § 3553(a)(2)(D). Finally, the court

explicitly stated that the nearly twenty-year total term of

imprisonment and supervised release was "not greater than necessary

to achieve the purposes of sentencing." Marsh, 486 F. Supp. 2d at

159; 18 U.S.C. § 3553(a).

We have previously stated the unremarkable proposition

that "[s]ections 3553(a)(1) and 3553(a)(2)(c) invite the district

court to consider, broadly, the nature and circumstances of the

offense and the history and characteristics of the defendant and

the need for the sentence imposed to protect the public from

further crimes of the defendant." Politano, 522 F.3d at 74

(internal quotations omitted). In our view, the district court did

what the law calls for, it employed a "plausible sentencing

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rationale" and achieved a "defensible overall result." Martin, 520

F.3d at 96.

The sentence imposed by the district court is affirmed.

-Dissenting Opinion Follows-

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 MERRITT, Circuit Judge, dissenting. The sentence in this

case is about 4 years above the Guidelines sentence and 1 year

above the mandatory, minimum, 10-year sentence. I find the upward

departure unreasonable. The district court seemed strongly

influenced by and imposed the departure after objecting to the

state court’s action in setting aside the two previous minor state

convictions — likening the process to "a Las Vegas marriage to be

annulled when they become burdensome." The district court then

improperly found facts based on the state police investigative

reports leading to the state convictions. This reliance appears to

be directly in violation of both Shepard v. United States, 544 U.S.

13, 22 (2005) (which imposed a "bar on review of documents like

police reports and complaint applications [which] would often make

ACCA sentencing enhancement hinge on . . . the vagaries of state

prosecutors’ charging practices"), and Cunningham v. California,

549 U.S. 270, 274 (2007) (barring judicial fact finding outside the

jury verdict or guilty plea). I would, therefore, set aside the

upward departure.

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