NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2421
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UNITED STATES OF AMERICA
v.
GELEAN MARK,
Appellant
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On Appeal from the District Court of the Virgin Islands
(No. 3:06-cr-00080-001)
District Judge: Hon. Curtis V. Gomez
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Submitted under Third Circuit L.A.R. 34.1(a)
December 14, 2018
Before: CHAGARES, HARDIMAN, and RESTREPO, Circuit Judges.
(Opinion Filed: December 20, 2018)
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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.
CHAGARES, Circuit Judge.
Gelean Mark was convicted of conspiracy to possess cocaine with intent to
distribute. He appeals his sentence of 210 months of imprisonment based on the District
Court’s finding that he was responsible for 87.5 kilograms of cocaine. We will affirm.
I.
Because we write only for the parties, we recite only the facts necessary to our
disposition.
In December 2006, Gelean Mark was charged with conspiracy to possess cocaine
with intent to distribute in violation of 21 U.S.C. § 846 for his part in a conspiracy to
import cocaine into the United States by commercial aircraft out of St. Thomas, U.S.V.I.
At trial, the District Court instructed the jury that it needed to find that the conspiracy
involved a measurable amount of the controlled substance alleged in the indictment. The
jury returned a guilty verdict. The District Court then submitted a post-verdict question
to the jury asking whether they found that five kilograms or more of cocaine was
involved in the offense. The jury did not reach a unanimous decision.
At Mark’s sentencing, the District Court found “by a preponderance of the
evidence that the appropriate level [of cocaine] should be 15 to 50 kilograms.” United
States v. Mark, No. 3:06-cr-00080 (D.V.I. Mar. 25, 2011), ECF No. 1308 at 48. The
court explained only that its finding was “based on the information adduced at trial,
which would put it at a base offense level of 34, instead of 36,” that it was “mindful of
relevant conduct and what it can consider,” and that there was “an abundance of evidence
that the Court cannot ignore.” Id. After other adjustments, the court determined that
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Mark’s guidelines range was 210 to 262 months in prison. The court sentenced him to
210 months.
Mark appealed, and we vacated his sentence and remanded for resentencing.
United States v. Freeman, 763 F.3d 322 (3d Cir. 2014). We explained that “[a]side from
these conclusory statements, the District Court offered no other explanation as to the
basis for its findings” and that “the District Court’s short, conclusory response left much
to be desired regarding what testimony and/or evidence it relied upon, or did not rely
upon, in reaching its drug quantity conclusion.” Id. at 339. “This was error,” since “[o]n
this record, we cannot conclude that the District Court’s factual findings regarding drug
quantity at Mark’s sentencing hearing met the Guidelines’ sufficient indicia of reliability
standard.” Id.
The District Court resentenced Mark in June 2017. At the resentencing hearing,
the Government read into the record excerpts of the trial testimony of Glenson Isaac,
Mark’s co-conspirator. See Supplemental Appendix (“SA”) 77–101. After, the District
Court stated that this testimony showed Mark was responsible for around 142.5
kilograms of cocaine. The court then held that, based on a preponderance of the
evidence, “while 142.5 kilograms was arguably presented through the government’s
recitation of the transcript, specifically the testimony of Mr. Isaac, the Court is of a mind
that the appropriate amount is 87.5 kilograms.” SA 132. The court explained,
Now in reaching that amount, the Court gives weight to the testimony of
Glenson Isaac, as corroborated by the testimony of the several couriers.
Indeed, the Court had an opportunity to hear Mr. Isaac, who testified over
an extensive period of time during the course of the trial.
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The Court had an opportunity to observe his demeanor and assess his
credibility. And the Court found the witness to be credible, as it did the
couriers who provided testimony in support.
Now, having made that assessment, the Court still has to apply to that
testimony, whether the testimony reached a standard of a preponderance of
evidence. And as the Court indicated, the Court finds that, in fact, there is a
preponderance of the evidence that 87.5 kilograms was involved.
SA 132–33. Based on this finding, the District Court again sentenced Mark to 210
months of imprisonment. He timely appealed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291. We review a district
court’s sentence for abuse of discretion, by either procedural error or substantive
unreasonableness. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).
III.
Mark challenges the District Court’s conclusion that he was responsible for 87.5
kilograms of cocaine on five procedural grounds. His arguments are unavailing.
A.
Mark argues that the District Court did not adequately state its basis for finding
him responsible for 87.5 kilograms of cocaine. At Mark’s first sentencing, the District
Court did not identify what testimony or evidence it relied on, so we could not assess
whether the information underpinning the sentence was sufficiently reliable. On
resentencing, the court gave “weight to the testimony of Glenson Isaac, as corroborated
by the testimony of the several couriers.” SA 132. We found “no error in the District
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Court’s reliance on Isaac’s testimony” in the first appeal. Freeman, 763 F.3d at 338. We
observed that “[w]hile the District Court does appear to rely heavily on Isaac’s testimony,
it supports this reliance by noting that his testimony was corroborated significantly by
other drug couriers” and that “Isaac was not an addict–informant, nor did he present
himself in any other way that would require additional caution in relying on his
testimony.” Id. Thus, the District Court relied on testimony sufficiently reliable to
support its finding on drug quantity.
Since the court’s conclusion rests on sufficiently reliable evidence, we need ask
only whether the finding itself — 87.5 kilograms — is clearly erroneous. United States
v. Gibbs, 190 F.3d 188, 204 (3d Cir. 1999). “‘A finding is clearly erroneous when
although there is evidence to support it, the reviewing body on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.’” United States
v. Wise, 515 F.3d 207, 218 (3d Cir. 2008) (quoting Concrete Pipe & Prods. of Cal., Inc.
v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993)). To reach 87.5
kilograms, the District Court stated that it did not credit four transactions (June 2004,
May 2005, June 2005, September 2005) totaling 33 kilograms. The District Court must
also have credited the transactions that occurred in June, July, and September 2003,
which totaled 7.5 kilograms, and it must have discredited the 9-kilogram transaction from
October 2005. Then the court must have credited eight of the nine remaining 10-
kilogram transactions (November 2003, December 2003, January 2004, March 2004, July
2004, August 2004, September 2004, December 2004, August 2005). We have already
held that the evidence supporting all of those transactions is sufficiently reliable. See
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Freeman, 763 F.3d at 338. Thus we are not left with the definite and firm conviction that
the District Court erred.1
B.
Mark next argues that the District Court impermissibly relied on judge-found facts
to enhance his sentence. But as we explained in the first appeal, the “statutory sentencing
range supported by the jury’s verdict as to both Freeman and Mark ranged from a period
of no incarceration to a maximum of 20 years’ incarceration.” Id. at 336 (citing 21
U.S.C. § 841(b)(1)(C)). Resentencing Mark within that range based on judicial findings
was not an abuse of discretion.2
C.
Mark next argues that the District Court should have applied a clear-and-
convincing-evidence standard to drug quantity, given its substantial effect on his
sentence. But as Mark conceded before the District Court, our Court requires only a
preponderance of the evidence. United States v. Fisher, 502 F.3d 293, 305–08 (3d Cir.
2007). Mark offers no basis to deviate from our binding precedent.
1
The record is unclear whether the District Court appended its rulings on “any disputed
portion of the presentence report or other controverted matter” to the PSR made available
to the Bureau of Prisons. Fed. R. Crim. P. 32(i)(3)(B)–(C); see Mark Br. 26 (arguing the
court did not append rulings). We instruct the court to determine whether it attached its
findings to the PSR. If not, the court must send the Bureau of Prisons a new PSR
identifying disputed matters (such as drug quantity) and stating the court’s rulings. See,
e.g., United States v. Mays, 798 F.2d 78, 81 (3d Cir. 1986).
2
We also reject any as-applied Sixth Amendment challenge to Mark’s sentence. See
Freeman, 763 F.3d at 339 n.6 (rejecting the argument that a within-Guidelines sentence
violates the Sixth Amendment because it would be substantively unreasonable in the
absence of the District Court’s factual findings).
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D.
Mark then argues that he was on notice only of the dates and amounts of cocaine
listed in his presentence report and that the court thus deprived him due process when it
allowed the Government to rely upon additional dates and amounts. This argument is
meritless. Granted, it is true that constitutional due process and Federal Rule of Criminal
Procedure 32(i)(1) require that a defendant receive a summary of the sentencing-related
evidence against him and a “reasonable opportunity” to respond to it. Fed. R. Crim. P.
32(i)(1)(B); accord United States v. Ausburn, 502 F.3d 313, 322 (3d Cir. 2007)
(discussing due process). But what qualifies as an opportunity to comment “may vary
depending on the circumstances” and may even include “shar[ing] the documents with
defense counsel on the date of the scheduled sentencing hearing, if the circumstances
warranted that procedure.” United States v. Nappi, 243 F.3d 758, 765 (3d Cir. 2001).
The sentencing hearing — which included a defense-requested recess to review
the evidence in question — satisfied these requirements. From the start of the hearing,
the Government claimed it could support the drug quantity in the PSR with Isaac’s trial
testimony. The Government then presented this testimony systematically, identifying 17
transactions and an alleged drug quantity for each transaction. Mark objected. The
District Court overruled Mark’s objection, but then later granted Mark’s request to
“review everything” in a one-hour recess. SA 102–03. Thus, Mark received sufficient
notice and opportunity to respond to the use of Isaac’s trial testimony at sentencing.
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E.
Finally, Mark argues that the District Court improperly declined to grant him a
downward departure. We will reverse when a district court may not have understood that
it could downwardly depart on a requested basis. See, e.g., United States v. Nolan-
Cooper, 155 F.3d 221, 242 (3d Cir. 1998). But we do not “review the merits of a district
court’s discretionary decision to refuse a downward departure under the Sentencing
Guidelines once we determine that the district court properly understood its authority to
grant a departure.” United States v. Minutoli, 374 F.3d 236, 239 (3d Cir. 2004).
Mark argues that the District Court should have downwardly departed because the
Government serially prosecuted him, the District Court delayed three years resentencing
him, and he has a good prison record. In each case, the District Court understood its
authority to depart but declined to do so. As a result, we will not review the merits of this
decision.
IV.
Mark also separately argues that the District Court retaliated against him by
finding a higher drug amount on resentencing. We are not persuaded.
The due process clause forbids judges from retaliating against a defendant for
succeeding on an appeal by imposing a more severe sentence on remand. North Carolina
v. Pearce, 395 U.S. 711, 726 (1969). When a defendant receives a higher sentence on
resentencing, a presumption of vindictiveness arises provided that there is a “reasonable
likelihood” that the increased sentence is the product of actual vindictiveness. Alabama
v. Smith, 490 U.S. 794, 799 (1989). When the presumption does arise, it can be
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overcome by “objective information in the record justifying the increased sentence.”
United States v. Goodwin, 457 U.S. 368, 374 (1982).
Mark argues that the presumption arises because the District Court found a higher
drug amount on remand. But we have explained that the “Pearce presumption focuses on
whether the length of the new sentence exceeds the total length of the original sentence.”
United States v. Nerius, 824 F.3d 29, 32 (3d Cir. 2016). Mark’s new sentence does not
exceed the original. Both times, Mark was sentenced to 210 months of imprisonment.
When the resentence is the same, no presumption of retaliation arises. See, e.g., United
States v. Murray, 144 F.3d 270, 275 (3d Cir. 1998). How the District Court arrived at
Mark’s new sentence — by finding a higher drug amount — does not change this
conclusion.3 “Under Pearce, we use the actual sentence imposed following the appeal as
a litmus test for the presence or absence of vindictiveness and do not require the
resentencing process to mirror the original proceeding.” Nerius, 824 F.3d at 32; see also
Kelly v. Neubert, 898 F.2d 15, 16 (3d Cir. 1990) (holding that “a restructuring of a
3
On remand, the District Court’s finding that Mark was responsible for 87.5 kilograms of
cocaine resulted in the same offense level, and thus the same Guidelines range of 210 to
262 months of imprisonment, as calculated in Mark’s prior sentencing, even though the
District Court previously found that Mark was responsible for only 15 to 50 kilograms of
cocaine. In the intervening period between Mark’s sentencings, the United States
Sentencing Commission promulgated Amendment 782, which reduced by two levels the
offense levels assigned to most drug quantities. See U.S.S.G. § 2D1.1(c). Thus, if the
District Court, on remand, found that Mark was responsible for a quantity within the
range of 15 to 50 kilograms — as it had found during Mark’s prior sentencing — his
offense level would have been reduced by two levels, resulting in a Guidelines range of
168 to 210 months of imprisonment.
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sentence does not trigger the Pearce rule”). No presumption arises when the sentence is
the same, no matter how the District Court reached that sentence.
“[W]here the presumption does not apply, the defendant must affirmatively prove
actual vindictiveness.” Wasman v. United States, 468 U.S. 559, 569 (1984). Mark
argues that the District Court’s three-year delay resentencing him on remand and six-
month delay filing its written judgment after resentencing prove actual vindictiveness.
But Mark offers no reason to attribute these delays to vindictiveness rather than a benign
reason such as a heavy caseload or administrative oversight. And Mark will not spend
longer in prison because of the delays, since he will receive credit for his jail time. Thus,
Mark has not affirmatively proved actual vindictiveness.
V.
For these reasons, we will affirm the judgment of sentence.
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