United States v. Marks
2017 U.S. App. LEXIS 13327
7th Cir.
2017

Background

  • Marks pled guilty (2015) to conspiracy to distribute heroin; district court sentenced him to 108 months; appeal challenges calculation of his advisory Guidelines range.
  • Marks had four prior Illinois drug convictions (1994, 1995, 1996, 2000); the 2000 conviction clearly counted under U.S.S.G. § 4A1.2(e)(1); the question was whether any 1990s convictions also counted because parole was allegedly revoked and he was reincarcerated.
  • Probation office relied on Illinois Department of Corrections (IDOC) records and inferred parole revocations/"violator return" that would bring one or more 1990s convictions into the 15-year window, qualifying Marks as a career offender under U.S.S.G. § 4B1.1.
  • Marks disputed that his parole was ever revoked and pointed out the IDOC records were ambiguous: two records lacked parole entries and suggested community custody/electronic monitoring, and the 1996 record showed only a "Violator Return" without explanation.
  • The district court treated Marks as a career offender (but imposed a below-range sentence); it did not make explicit findings that parole was revoked or that Marks was incarcerated on a revocation for a 1990s conviction.
  • Seventh Circuit found both legal and factual error in applying the career-offender guideline, vacated the sentence, and remanded for resentencing.

Issues

Issue Marks' Argument Government's Argument Held
Whether any 1994–1996 convictions count under § 4A1.2(k)(2)(A) via parole revocation/reincarceration within 15 years Parole was not revoked; IDOC records are ambiguous and do not show incarceration on those convictions IDOC records and PSR reasonably show Marks was in IDOC custody through 2000, supporting parole revocation inference Court: Government failed to prove incarceration on a parole revocation for any 1990s conviction; district court erred by treating Marks as career offender without required findings and reliable evidence; vacated and remanded
Whether the district court made required findings to apply § 4B1.1 career-offender status Court needed to find parole revocation + reincarceration on an older conviction District court could rely on PSR/IDOC records to infer required facts Court: Legal error — court did not make necessary factual findings (parole revocation + reincarceration) before applying § 4B1.1
Whether the PSR/IDOC records were sufficiently reliable to support guideline calculation PSR entries were unreliable/ambiguous; defendant’s denial raised doubt PSR corroborated by IDOC records and probation testimony; defendant had burden to refute Court: PSR was ambiguous and omitted crucial information; government bore burden to independently prove revocation; evidence insufficient
Whether the sentencing error was harmless (i.e., judge would have imposed same sentence regardless) Judge gave no clear statement that sentence would be the same absent career-offender status Government argued sufficient indicia to support career-offender calculation Court: Not harmless — judge did not state he would have imposed same sentence; procedural error presumed to affect sentence; remand required

Key Cases Cited

  • United States v. Moreno-Padilla, 602 F.3d 802 (7th Cir. 2010) (PSR assertions about parole revocation must be corroborated; defendant must challenge unreliable PSR statements)
  • United States v. Black, 636 F.3d 893 (7th Cir. 2011) (sentencing judge may rely on PSR if well-supported and reliable)
  • United States v. Heckel, 570 F.3d 791 (7th Cir. 2009) (standards for relying on PSR at sentencing)
  • United States v. Mustread, 42 F.3d 1097 (7th Cir. 1994) (defendant’s denial can call PSR accuracy into doubt if PSR is naked/unsupported)
  • United States v. Titus, 821 F.3d 930 (7th Cir. 2016) (district court must make requisite findings before applying career-offender guideline)
  • United States v. McNeil, 573 F.3d 479 (7th Cir. 2009) (probation office should supplement PSR when omission of crucial information creates uncertainty)
  • Gall v. United States, 552 U.S. 38 (2007) (district court must correctly calculate Guidelines; reasonable sentencing process)
  • United States v. Robinson, 435 F.3d 699 (7th Cir. 2006) (Guideline miscalculation is procedural error)</n* United States v. Adams, 746 F.3d 734 (7th Cir. 2014) (presumed influence of Guideline calculation errors absent contrary statement)
  • Molinar-Martinez v. United States, 136 S. Ct. 1338 (2016) (even unpreserved Guidelines error can affect substantial rights)
  • United States v. Timbrook, 290 F.3d 957 (7th Cir. 2002) (community treatment centers/halfway houses are not "imprisonment" for Guidelines)
  • United States v. Phipps, 68 F.3d 159 (7th Cir. 1995) (home detention not imprisonment for Guidelines)
  • United States v. Gordon, 346 F.3d 135 (5th Cir. 2003) (residential programs not "imprisonment")
  • United States v. Pielago, 135 F.3d 703 (11th Cir. 1998) (community treatment center not imprisonment)
  • United States v. Jones, 107 F.3d 1147 (6th Cir. 1997) (home detention not imprisonment)
  • United States v. Latimer, 991 F.2d 1509 (9th Cir. 1993) (community placements not imprisonment)
  • United States v. Rasco, 963 F.2d 132 (6th Cir. 1992) (contrast: community treatment center treated as confinement after parole revocation)
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