10-371-cr United States v. Marcus
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 
**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 20 thday of December, two thousand and ten. 4 5 PRESENT: JOSEPH M. McLAUGHLIN, 6 JOSÉ A. CABRANES, 7 RICHARD C. WESLEY, 8 Circuit Judges

. 9 10 11 12 LAWRENCE I. MARCUS, 13 14 Defendant-Appellant , 15 16 -v.- 10-371-cr 17 18 UNITED STATES OF AMERICA, 19 20 Appellee. 21 22 23 FOR APPELLANT: ELIZABETH E. MACEDONIO, Bayside, New 24 York. 25 26 FOR APPELLEE: BURTON T. RYAN, Assistant United States 27 Attorney (David C. James, Assistant 28 United States Attorney, on the brief) , 29 forLoretta E. Lynch, United States 30 Attorney for the Eastern District of New 31 York, Brooklyn, New York. 32 33Appeal from the United States District Court for the 1 Eastern District of New York (Platt, J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4

**AND DECREED**that the sentence imposed by the district court 5 is **VACATED** . We **REMAND**for resentencing proceedings 6 consistent with this order. 7 Lawrence Marcus (“Marcus”) appeals from an 8 incarceratory sentence of one year and one day imposed by 9 the United States District Court for the Eastern District of 10 New York. We assume the parties’ familiarity with the 11 underlying facts, the procedural history, and the issues 12 presented for review. 13
**BACKGROUND** 14 The facts here are undisputed. Marcus, a former 15 manager for a member of the Rolling Stones, began 16 distributing marijuana in the 1980s. He eventually came to 17 the attention of law enforcement, who executed a search 18 warrant on his home and confiscated ten pounds of marijuana. 19 That arrest was the genesis of a long and fruitful 20 cooperation with authorities. Marcus provided information 21 that led to the arrests and successful prosecutions of a 22 number of large-scale international drug dealers, including 23 Gregory Timewell, Michael Vondette, and Patrick Bowler. In 24
2addition, he recorded his conversations with various members 1 of drug distribution organizations and made himself 2 available as a trial witness. Because of his extensive 3 assistance to law enforcement, Marcus received a number of 4 credible threats of violence; to ensure his safety, 5 authorities installed a panic button in his home. As the 6 government conceded at oral argument, Marcus “uniquely 7 earned” the government’s motion pursuant to Section 5K1.1 of 8 the United States Sentencing Guidelines urging a downward 9 departure. 10 Letters submitted on Marcus’s behalf, if credited, show 11 that his arrest also marked the beginning of an admirable 12 personal transformation. In the nearly seventeenyears that 13 have elapsed since his arrest, he has built both a family 14 and a business. His wife of twenty-seven years describes 15 him as a devoted husband and a loving father to their four 16 children, and a colleague reports that Marcus is a widely17 respected and fair boss who dramatically reduced his own 18 salary in the economic downturn to avoid laying off 19 employees. Further, letters from Marcus’s father and sister 20 describe Marcus as a compassionate son and brother, a man 21 who cared for them through their long illnesses. 22

3Marcus pleaded guilty to one count of conspiracy to 1 distribute marijuana and one count of filing a false tax 2 return. The suggested Guidelines range was forty-six to 3 fifty-seven months of incarceration. With little 4 explanation, the district court imposed an incarceratory 5 sentence of one year and one day. Two weeks later, Marcus 6 filed a motion for reconsideration, which the district court 7 denied. Marcus now appeals the district court’s sentence as 8 procedurally and substantively unreasonable. 9
**DISCUSSION** 10 We review the sentence imposed by the district court to 11 ascertain whether it is reasonable. Gall v. United States, 12 552 U.S. 38, 46-47 (2007); United States v. Cavera , 550 F.3d 13 180, 187-88 (2d Cir. 2008) ( en banc ). Reasonableness review 14 is “akin to review for abuse of discretion.” United States 15 v. Fernandez , 443 F.3d 19, 27 (2d Cir. 2006). Our review 16 for reasonableness has both procedural and substantive 17 components. See, e.g. , Cavera , 550 F.3d at 189. 18 Marcus first contends that his sentence is procedurally 19 unreasonable for two principal reasons: (1) the district 20 court did not properly consider the factors set forth in 18 21 U.S.C. § 3553(a) in fashioning its sentence; and (2) the 22

4district court did not adequately explain its sentence as 1 mandated by 18 U.S.C. § 3553(c). We address only the second 2 argument here. A sentence is procedurally unreasonable if, 3 among other things, the lower court fails to adequately 4 explain the basis for the sentence it imposed. See, e.g. , 5 United States v. Johnson , 567 F.3d 40, 51 (2d Cir. 2009). 6 Requiring the district court to articulate the reasons for 7 its sentence (1) “helps to ensure that [it] actually 8 consider[s] the statutory factors and reach[es] [a] reasoned 9 decision[]”; (2) “promote[s] the perception of fair 10 sentencing”; and, most importantly, (3) assures “meaningful 11 appellate review.” Cavera , 550 F.3d at 193 (internal 12 quotation marks omitted). 13 The district court did not adequately explain its 14 sentence. Particularly troubling, given the passage of 15 fifteen years between Marcus’s arrest and sentencing, is the 16 court’s failure to discuss the extent to which it considered 17 evidence of Marcus’s rehabilitation in fashioning its 18
sentence. See United States v. Hernandez , 604 F.3d 48, 55 19 n.4 (2d Cir. 2010). Of course, the district court simply 20 might not have credited Marcus’s claims of rehabilitation, 21 see United States v. Preacely , 628 F.3d 72, 85 (2d Cir. 22

52010) (Lynch, J., concurring), or it might have believed the 1 seriousness of Marcus’s crime outweighed even the most 2 compelling evidence of rehabilitation. However, given the 3 paucity of the district court’s explanation, we cannot be 4 sure that the district court arrived at a reasoned decision 5 over which we can meaningfully exercise appellate review. 6 For this reason, we vacate the sentence imposed by the 7 district court as procedurally unreasonable. 8 Because we determine that the sentence imposed on 9 Marcus is procedurally unreasonable, we do not address the 10 thorny issue of whether, under the unique circumstances of 11 this case, an incarceratory sentence of one year and one day 12 is substantively unreasonable. On remand, the district 13 court shall have plenary authority to impose a sentence 14 consistent with law. We further elect to remand in 15 accordance with the procedures set forth in United States v. 16 Jacobson , 15 F.3d 19, 22 (2d Cir. 1994). Either party may 17 restore jurisdiction to this Court to consider whatever 18 arguments remain or arise relating to Marcus’s resentencing 19 by sending a letter to the Clerk of the Court within 14 days 20 of the district court’s decision. Any such proceedings will 21 be assigned to this panel. 22

6After a thorough and searching review of the record, we 1 find Marcus’s remaining arguments to be meritless. 2 3 For the foregoing reasons, the sentence imposed by the 4 district court is hereby **VACATED** . We **REMAND**for 5 resentencing proceedings consistent with this order. The 6 mandate shall issue forthwith. 7 8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12

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