United States v. Marks

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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