United States v. Berson Marius

Case: 16-12154 Date Filed: 02/06/2017 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-12154
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20529-JAL-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BERSON MARIUS,
a.k.a. Sasha,
a.k.a. Sha,

Defendant-Appellant

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Appeal from the United States District Court
for the Southern District of Florida
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(February 6, 2017)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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Berson Marius appeals his sentence of 200 months of imprisonment for

conspiring to possess with intent to distribute a controlled substance. 21 U.S.C.

§§ 841(a)(1), 846. Marius challenges the amount of drugs attributed to him and the

enhancement of his sentence for possessing a firearm, for maintaining a premises

to distribute drugs, and for his role as a leader of the conspiracy. Marius also

challenges the use of two prior convictions in the Florida courts to classify him as a

career offender under the Sentencing Guidelines. We affirm.

The district court did not clearly err by attributing to Marius 120 grams of

cocaine base and of powder cocaine. In his factual proffer, Marius admitted that he

“directed the sale of narcotics” from a house located at 1160 NW 141 Street in

Miami; he was “responsible for distributing” cocaine base, powder cocaine,

Ethylone, Alprazolam, heroin, and marijuana; he dictated the price of and managed

the volume of drugs sold from the house; he and his coconspirators “relocate[d]

their primary narcotics distribution activities to a[nother] residence” at 810 N.W.

145 Street in Miami; he sold drugs at both houses; he packaged cocaine; and he

delivered drugs to both houses and collected the sales proceeds “nearly every day.”

The district court reasonably determined from Marius’s involvement and oversight

that he was responsible for the drugs he sold and those sold by his coconspirators.

See United States Sentencing Guidelines Manual § 1B1.3(a)(1)(B) (Nov. 2015);

United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993). Marius admitted

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that, between August 2014 and May 2015, he sold more than 150 grams of cocaine

base and powder and that ledgers maintained by the conspiracy recorded sales of

more than $25,000 of drugs between February 17, 2015, and April 9, 2015. The

ledgers reflected that the two drug houses were used to distribute six types of drugs

and operated virtually every day and at all hours, yet the government calculated

Marius’s drug quantity based on the sales of two drugs for 5 days a week over a

12-week span. Based on evidence about multiple daily shifts at each house and

ledger entries describing the quantity of each drug sold and corresponding sales

proceeds, the government estimated that each house sold 2 grams of cocaine base

and of cocaine powder per day. That was a fair and conservative estimate on which

the district court was entitled to rely in determining what amount of drugs to

attribute to Marius. See United States v. Almedina, 686 F.3d 1312, 1315–16 (11th

Cir. 2012). Ample evidence supported the drug quantity used by the district court

to calculate Marius’s sentence.

The district court did not clearly err by enhancing Marius’s offense level by

two levels for possessing firearms. See U.S.S.G. § 2D1.1(b)(1). Marius admitted to

a transaction on June 17, 2014, during which “narcotics packages for distribution

[were] visible next to firearms” inside the house on 141 Street where he “directed

the sale of narcotics”; having three firearms seized from the house on July 8, 2014;

receiving a telephone call on April 9, 2015, in which a coconspirator reported

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fleeing the house “with . . . drugs and guns”; and that two coconspirators were

“armed with firearms to defend” the house on April 29, 2015. Marius also admitted

that he had “a 7.62 caliber AK-style assault rifle in a bedroom” in his home along

with “a scale and small quantities of cocaine” and “ammunition of various

calibers” and that a Ruger Mini-14 rifle seized from a coconspirator’s residence

was “the same rifle that was regularly used to ‘serve and protect’ the [drug]

houses.” And Special Agent Brendan Collins testified that the Federal Bureau of

Investigation intercepted telephone calls between the coconspirators about

relocating firearms ostensibly to protect themselves and the drug houses and that

Marius sold drugs outside his residence where agents discovered the assault rifle.

Because the government proved that there were firearms in proximity to drug

trafficking by Marius and his coconspirators, the burden shifted to Marius to

establish that it was “clearly improbable” that the firearms were used in connection

with his offense. See United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir.

2006). The district court reasonably determined that the evidence negated Marius’s

arguments that the firearms were unrelated to the drug trafficking.

The district court also did not clearly err by enhancing Marius’s offense

level for maintaining a house to distribute drugs. See U.S.S.G. § 2D1.1(b)(12).

Marius admitted that he used the house on 141 Street to sell drugs and that he

controlled the drug transactions conducted on, the quantity of drugs available at,

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and the retrieval of proceeds from the house. See id. cmt. n.17. Evidence also

established that Marius was responsible for repairing the house. See id. Agent

Collins testified about telephone calls in which Marius referred to the house as “his

crib” and he discussed replacing doors damaged during the execution of a search

warrant and installing cameras at the house. The district court reasonably

determined that Marius maintained the house at 141 Street for drug trafficking.

Ample evidence also supported the decision to increase Marius’s offense

level for his role as a leader of the conspiracy. See id. § 3B1.1(a). Marius exercised

extensive decision-making authority over the price of the drugs and the payment of

sellers; he supervised the workers at the house on 141 Street; and he orchestrated

the movement of drugs and cash to and from the drug houses. See United States v.

Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005). The ledgers and intercepted

telephone calls also revealed that Marius shared the majority of the drug proceeds

with his brother and he spearheaded the distribution of cocaine base while his

brother organized the trafficking in powder cocaine. Although Agent Collins

testified that Marius “shared the leadership role” with his brother, Marius did “not

have to be the sole leader or kingpin of the conspiracy in order to be considered an

organizer or leader within the meaning of the Guidelines,” id. (internal quotation

marks, alterations, and citation omitted). The district court did not clearly err in

finding that Marius led the conspiracy.

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The district court did not err by counting Marius’s prior convictions in the

Florida courts as predicate offenses and classifying him as a career offender. See

U.S.S.G. § 4B1.2(a)(1). In 1999, Marius pleaded guilty to armed carjacking and

armed robbery. That Marius was adjudicated a youthful offender had no effect on

using the carjacking and robbery convictions as predicate offenses because he was

convicted in an adult court and sentenced to serve two years in the custody of the

Department of Corrections. See United States v. Wilks, 464 F.3d 1240, 1242–43

(11th Cir. 2006). Marius argues that his 1998 convictions did not qualify as crimes

of violence, but we held in United States v. Fritts, 841 F.3d 937 (11th Cir. 2016),

that a “Florida armed robbery conviction under [section] 812.13 categorically

qualifies as a ‘violent felony’ under the ACCA’s elements clause,” id. at 944, and

the elements of the carjacking statute “mirror” those in the robbery statute, Cruller

v. State, 808 So. 2d 201, 204 (Fla. 2002). See Spencer v. United States, 773 F.3d

1132, 1171 (11th Cir. 2014) (“[O]ur determinations about whether a conviction

constitutes a ‘violent felony’ under the ACCA apply to the analysis of whether an

offense qualifies as a ‘crime of violence’ under the Sentencing Guidelines.”). And

Marius’s conviction in 2009 for resisting an officer with violence qualifies as a

crime of violence under the elements clause of the Guidelines. See United States v.

Romo-Villalobos, 674 F.3d 1246, 1248–51 (11th Cir. 2012). It is of no moment

that the Florida court withheld adjudication. Under the Sentencing Guidelines, “[a]

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diversionary disposition resulting from a finding or admission of guilt, or a plea of

nolo contendere, in a judicial proceeding is counted as a sentence under [section]

4A1.1(c) even if a conviction is not formally entered.” U.S.S.G. § 4A1.2(f). That

determination is not affected by our holding in United States v. Clarke, 822 F.3d

1213 (11th Cir. 2016), that a guilty plea with adjudication withheld is not a

“conviction” under Florida law for the purpose of being a felon in possession of a

firearm, 18 U.S.C. § 922(g)(1). The district court correctly treated Marius as a

career offender in determining his criminal history category.

We AFFIRM Marius’s sentence.