2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-4-2012

USA v. Stephen Marks

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2783

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Recommended Citation

"USA v. Stephen Marks" (2012). 2012 Decisions. Paper 1184.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/1184
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 11-2783

_______________

UNITED STATES OF AMERICA

v.

STEPHEN L. MARKS,

Appellant

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(Criminal Action No. 1-10-cr-00275-001)

District Judge: Honorable Sylvia H. Rambo

_______________

Submitted Under Third Circuit LAR 34.1(a)

February 9, 2012

_______________

Before: SLOVITER, VANASKIE, Circuit Judges, 

and POLLAK, District Judge*

(Opinion filed: April 4, 2012)

_______________

OPINION

_______________

 * Honorable Louis H. Pollak, Senior Judge of the United States District Court for the 

Eastern District of Pennsylvania, sitting by designation.
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POLLAK, District Judge.

After Stephen Marks pled guilty to three charges arising out of his participation in 

a conspiracy to illegally distribute and dispense controlled substances, the District Court 

sentenced him to a fifty-one-month term of imprisonment. On appeal, Marks challenges 

only the substantive reasonableness of his sentence. We will affirm.

I.

Because we write primarily for the parties, who are familiar with the background 

of this case, we will summarize the facts and procedural history only briefly. On 

September 22, 2010, a federal grand jury returned a seven-count indictment against 

Marks. The indictment alleged that Marks, a licensed pharmacist, conspired with others 

to illegally distribute and dispense controlled substances via telemarketers and the 

internet. Pursuant to a plea agreement, Marks pled guilty to the first three counts of the 

indictment, which, respectively, charged Marks with: 1) conspiracy to distribute 

controlled substances in violation of 21 U.S.C. § 846; 2) causing misbranded drugs to be 

moved in interstate commerce in violation of 21 U.S.C. §§ 331(k), 333(a)(2), and

353(b)(1); and 3) money laundering in violation of 18 U.S.C. § 1957. 

The District Court held a sentencing hearing on June 23, 2011. The probation 

office’s presentence investigation report recommended a sentence within the guideline 

range of fifty-one to sixty-three months. Marks requested a variance, arguing that he 

should be sentenced to less than two years’ imprisonment based on the nature of his 

offense; his relatively minor role in the conspiracy; his age and health problems, which 
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included sleep apnea, hypertension, and osteoarthritis; and the low likelihood that he 

would recidivate, since he was no longer a practicing pharmacist. 

After considering the factors set forth in 18 U.S.C. § 3553(a), including Marks=s 

age and physical condition, the District Court sentenced Marks to fifty-one months of

imprisonment (the bottom of the guideline range) and three years of supervised release. 

II.

We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We 

review the District Court=s sentence under an abuse of discretion standard. United States 

v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). Where, as here, a defendant 

makes no procedural challenge to the District Court’s sentence, our inquiry is limited to 

the sentence=s substantive reasonableness. See id. at 568. 

Marks argues that his sentence was substantively unreasonable because, in 

imposing his sentence, the District Court gave “short shrift” to his variance request and, 

as a result, imposed a sentence that was greater than necessary to comply with the 

purposes of sentencing in light of Marks’s age, health conditions, and likelihood of 

recidivism. “The touchstone of ‘reasonableness’ is whether the record as a whole reflects 

rational and meaningful consideration of the factors enumerated in § 3553(a).” United 

States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007). Here, the record reflects that the 

District Court gave meaningful consideration to the § 3553(a) factors and reasonably 

concluded that a fifty-one-month sentence was necessary. In explaining its decision not 

to grant Marks’s request for a variance, the Court noted that Marks had ignored a warning 

from the Drug Enforcement Administration (“DEA”), had recruited other people to 
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participate in the illegal drug sales, and had been involved in the sale of a significant 

quantity of drugs. The Court also explained that Marks’s physical health did not 

necessitate a reduced sentence because “the proper institution to which he is assigned can 

take care of that.” Marks=s sentence, which fell at the bottom of the guideline range, was 

substantively reasonable.

III.

For the reasons stated above, we will affirm the sentence.