NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15–2002
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UNITED STATES OF AMERICA
v.
GELEAN MARK,
Appellant
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On Appeal from the District of the Virgin Islands
(D.C. No. 3-05-cr-00076-001)
District Judge: Honorable Curtis V. Gomez
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 16, 2016
Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.
(Filed: December 19, 2016)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.
Gelean Mark appeals his judgment of sentence, claiming the District Court erred
in calculating his criminal history under the United States Sentencing Guidelines
(USSG). We will affirm.
I
Mark was indicted in 2005 for his role in “Redball I,” a conspiracy to possess and
distribute large amounts of cocaine in St. Thomas, United States Virgin Islands. Mark’s
first trial ended in a mistrial. He was tried again in February 2009 and the jury found him
guilty on two counts of conspiracy to distribute controlled substances.
The Probation Office prepared a Presentence Investigation Report (PSR) which
calculated Mark’s offense level as 33 and his criminal history category as III, resulting in
an advisory Guidelines range of 168 to 210 months’ incarceration. Mark objected to the
PSR and the Probation Office issued a revised PSR that reduced Mark’s criminal history
category to I, yielding a new Guidelines range of 121 to 151 months. At the sentencing
hearing, the Government objected to the reduction in Mark’s criminal history score and,
after hearing argument from both sides, the District Court agreed with the Government,
reinstating Mark’s criminal history category as III. The parties then agreed that Mark’s
correct offense level was 31, resulting in a final advisory Guidelines range of 135 to 168
months’ incarceration. The Court imposed a bottom-of-the-Guidelines sentence and Mark
filed this timely appeal.
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II1
The issue on appeal is whether Mark’s criminal history properly included two
prior sentences. The first sentence, imposed on October 7, 2010, arose out of the “Mark-
Blyden” RICO enterprise, which was engaged in narcotics distribution, unlawful
gambling, and attempted murder. The second sentence, imposed on October 19, 2010,
was for Mark’s role in “Redball II,” a conspiracy aimed at smuggling cocaine out of the
Virgin Islands on commercial airlines and distributing it throughout the mainland United
States. As Mark acknowledges, we “review for clear error the District Court's
determination of what constitutes ‘relevant conduct’ for purposes of sentencing.” United
States v. West, 643 F.3d 102, 105 (3d Cir. 2011) (quoted in Mark Br. at 8).
The Sentencing Guidelines state that a “‘prior sentence’ means any sentence
previously imposed upon adjudication of guilt . . . for conduct not part of the instant
offense.” USSG § 4A1.2(a)(1) (emphasis added). Mark argues that his RICO and Redball
II sentences should not have counted because his conduct in those cases was part of his
conduct in the case under review. We disagree.
First, Mark does not persuade us that the conduct underlying his prior convictions
was in fact part of the instant offense. Rather, he compares the cases at a high level of
abstraction to draw vague connections. For example, Mark argues that “[i]n all three
cases, the activity involved purchasing, transporting, importing and selling cocaine” and
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
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that in all cases the defendants “utilized phones to communicate,” “employed code
words,” and “drove in cars to conduct drop offs.” Mark Br. 12. He also notes that the
schemes involved some of the same defendants and overlapped in time. That the three
crimes share these similarities—many of which would occur in most cocaine conspiracy
cases—is not enough to show clear error. Cf. United States v. Washington, 549 F.3d 905,
920–21 (3d Cir. 2008) (explaining that conduct from a prior conviction was not part of
the same offense because the two crimes were not “inextricably linked” or “operationally
connected”).
Nor does Mark explain how the District Court’s analysis was clearly erroneous. In
comparing the RICO case to this case, the District Court explained that there was
insufficient evidence of a common scheme between the two crimes. Specifically, the
Court noted the variation in “[t]he MO, the motive, [and] the substantive offense
committed” between the two crimes. App. 97; see also App. 96 (Government explaining
to the District Court, “the underlying offenses that the government had to prove in [the
RICO case] had to do with gambling, the dogfighting and the attempted murder, [and] the
weapons case.”). The Court did not clearly err when it found significant the disparate
motives, methods, and substantive offenses of the two crimes.
As for Mark’s sentence in the Redball II case, the District Court rightly considered
it “a closer call.” App. 97. Yet despite the fact that the Redball conspiracies had similar
participants and involved the sale of cocaine, there was not “a preponderance that there
[was] a common plan between the two, . . . or that the defendant intended the second
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would be committed as a consequence of the first, or that the offenses were jointly
planned.” Id. And as the Government noted at sentencing, we had previously ruled that
the two conspiracies had different objectives. App. 95; United States v. Mark, 284 F.
App’x 946, 949 (3d Cir. 2008). Specifically, “the conspiracy alleged in Redball I aimed
to possess large quantities of cocaine, crack, and marijuana with intent to distribute the
drugs on the streets of St. Thomas for financial gain,” while the Redball II conspiracy
sought “to possess large quantities of cocaine for distribution in New York and North
Carolina for financial gain.” Mark, 284 F. App’x at 949 (citations and quotation marks
omitted).
Apart from Mark’s objections that we have already rejected, he does not explain
how the District Court’s analysis was clearly erroneous. In sum, despite some similarities
between the cases, we are not “left with the definite and firm conviction that a mistake
has been committed.” United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007).
* * *
For the reasons stated, we will affirm the District Court’s judgment.
5