United States v. Marcus , 517 F. App'x 8 ( 2013 )

12-1079-cr
United States v. Marcus
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 28th day of February, two thousand thirteen.
PRESENT: RALPH K. WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v.- 12-1079-cr
GLENN MARCUS,
Defendant-Appellant.
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FOR APPELLEE: PAMELA K. CHEN (Emily Berger, on
the brief), Assistant United States
Attorneys, for Loretta E. Lynch,
United States Attorney for the
Eastern District of New York,
Brooklyn, New York.
FOR DEFENDANT-APPELLANT: DAVID A. LEWIS, Barry D. Leiwant,
Federal Defenders of New York,
Inc., New York, New York.
Appeal from the United States District Court for the
Eastern District of New York (Ross, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Glenn Marcus appeals from the
judgment of the district court entered March 12, 2012, convicting
him of forced labor in violation of 18 U.S.C. § 1589(1) & (2) and
sentencing him to 96 months' imprisonment, 5 years' supervised
release, and $54,497 in restitution.
We note that this is our third review of the case, see
United States v. Marcus, 628 F.3d 36 (2d Cir. 2010); United
States v. Marcus, 538 F.3d 97 (2d Cir. 2008) (per curiam), and
that the Supreme Court has also reviewed the case, see United
States v. Marcus, 130 S. Ct. 2159 (2010). After this Court
vacated Marcus's sex trafficking conviction and remanded the case
to the district court, 628 F.3d at 46, the government declined to
retry the sex trafficking charge, and Marcus was resentenced just
on his forced labor conviction. See Amended Judgment at 1,
United States v. Marcus, No. 05 Cr. 457 (E.D.N.Y. Mar. 12, 2012),
ECF No. 308.
In the present appeal, Marcus argues that his sentence
on the forced labor count was procedurally and substantively
unreasonable because the district court failed to properly weigh
his medical condition in determining the sentence. We assume the
parties' familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
We review a sentence for both substantive and
procedural reasonableness under a deferential abuse of discretion
standard. United States v. Watkins, 667 F.3d 254, 260 (2d Cir.
2012); United States v. Fernandez, 443 F.3d 19, 26-27 (2d Cir.
2006).
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1. Procedural Reasonableness
The district court commits procedural error when it:
(1) fails to calculate the Guidelines range; (2)
is mistaken in the Guidelines calculation; (3)
treats the Guidelines as mandatory; (4) does not
give proper consideration to the § 3553(a)
factors; (5) makes clearly erroneous factual
findings; (6) does not adequately explain the
sentence imposed; or (7) deviates from the
Guidelines range without explanation.
Watkins, 667 F.3d at 260-61 (quotation omitted).
Marcus argues that the district court failed to give
proper consideration to the § 3553(a) factors, or made clearly
erroneous factual findings, in assessing how his medical
condition should affect his sentence. We disagree, in both
respects.
First, the district court carefully considered the
relevant § 3553(a) factors, including the nature and
circumstances of the offense, the history and characteristics of
the defendant, and the need for the sentence to afford adequate
deterrence, protect the public, and provide the defendant with
correctional treatment. Although Marcus may disagree with the
balance struck by the district court, he cannot fairly claim that
it did not weigh the various factors.
Second, Marcus does not identify the clearly erroneous
findings purportedly made by the district court. He points to no
specific factual findings that he claims are clearly erroneous.
Based on our review of the record, we are not persuaded that the
district court made any factual errors. Accordingly, the claim
of procedural error is rejected.
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2. Substantive Reasonableness
In examining the substantive reasonableness of a
sentence, we review the length of the sentence imposed to
determine whether it "cannot be located within the range of
permissible decisions." Watkins, 667 F.3d at 261 (quotation
omitted). "In the overwhelming majority of cases, a Guidelines
sentence will fall comfortably within the broad range of
sentences that would be reasonable in the particular
circumstances." Id. (alteration and quotation omitted).
We find that Marcus's sentence of 96 months'
imprisonment was substantively reasonable. First, the district
court imposed a sentence well below the Guidelines range. At the
March 5, 2012 resentencing, the district court found that the
Guidelines range was a term of imprisonment between 210 and 262
months.1 The district court imposed a sentence that was less
than half of the lowest end of the Guidelines range.
Second, the district court imposed a sentence that
reflected the seriousness of Marcus's offense, balanced against a
number of mitigating factors. Regarding the nature and
circumstances of the offense, the district court noted the
seriousness of Marcus's crime: forced labor with acts
1
Although Marcus was sentenced on two counts at his
initial sentencing and on only one count at his resentencing, the
Guidelines range was the same for the two sentencings because the
district court's grouping analysis resulted in no additional
exposure at the first sentencing for the sex trafficking count.
The district court imposed a non-Guidelines sentence of 108
months at the first sentencing.
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constituting aggravated sexual abuse. The district court
considered the "horrific cruelty and violence [Marcus] visited
upon his unwilling victim" and noted that Marcus's "physical and
psychological torture [of the victim] persisted over a lengthy
period of time . . . result[ing] in lasting physical and mental
injury." The district court found that "[a]fter brutally
tormenting, terrorizing and torturing his victim, [Marcus]
further degraded and exploited her by posting her pictures on his
website from which he earned income and forced her to manage the
website without compensation."
Third, the sentence accounted for the history and
characteristics of the defendant. The district court considered
Marcus's medical condition, noting that Marcus suffered from
myriad medical issues, his medical condition had deteriorated as
a result of his initial incarceration, and he had developed
additional medical problems since his first sentencing. It
concluded, however, that "[w]hile these matters warrant some
consideration . . . [they are] only marginally mitigating"
because Marcus had suffered from many of these medical issues
prior to his initial incarceration, he could continue managing
his condition while in prison, and the Bureau of Prisons was well
equipped to provide appropriate medical care.
After considering all of the circumstances, including
the § 3553(a) factors, the district court determined that a
sentence of 96 months' imprisonment was no greater than necessary
to accomplish the goals of sentencing. We conclude that Marcus's
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sentence was well within the range of permissible decisions and
is therefore substantively reasonable.
We have considered all of Marcus's remaining arguments
and find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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