10-371-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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 20th 4 day of December, two thousand and ten.

5

6 PRESENT: JOSEPH M. McLAUGHLIN,

7 JOSÉ A. CABRANES,

8 RICHARD C. WESLEY,

9 Circuit Judges.

10

11 

12

13 LAWRENCE I. MARCUS, 

14

15 Defendant-Appellant,

16

17 -v.- 10-371-cr

18

19 UNITED STATES OF AMERICA,

20

21 Appellee.

22 

23

24 FOR APPELLANT: ELIZABETH E. MACEDONIO, Bayside, New

25 York.

26

27 FOR APPELLEE: BURTON T. RYAN, Assistant United States

28 Attorney (David C. James, Assistant

29 United States Attorney, on the brief),

30 for Loretta E. Lynch, United States

31 Attorney for the Eastern District of New

32 York, Brooklyn, New York. 

33
1 Appeal from the United States District Court for the

2 Eastern District of New York (Platt, J.).

3

4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5 AND DECREED that the sentence imposed by the district court

6 is VACATED. We REMAND for resentencing proceedings

7 consistent with this order. 

8 Lawrence Marcus (“Marcus”) appeals from an

9 incarceratory sentence of one year and one day imposed by

10 the United States District Court for the Eastern District of

11 New York. We assume the parties’ familiarity with the

12 underlying facts, the procedural history, and the issues

13 presented for review.

14 BACKGROUND

15 The facts here are undisputed. Marcus, a former

16 manager for a member of the Rolling Stones, began

17 distributing marijuana in the 1980s. He eventually came to

18 the attention of law enforcement, who executed a search

19 warrant on his home and confiscated ten pounds of marijuana.

20 That arrest was the genesis of a long and fruitful

21 cooperation with authorities. Marcus provided information

22 that led to the arrests and successful prosecutions of a

23 number of large-scale international drug dealers, including

24 Gregory Timewell, Michael Vondette, and Patrick Bowler. In

2
1 addition, he recorded his conversations with various members

2 of drug distribution organizations and made himself

3 available as a trial witness. Because of his extensive

4 assistance to law enforcement, Marcus received a number of

5 credible threats of violence; to ensure his safety,

6 authorities installed a panic button in his home. As the

7 government conceded at oral argument, Marcus “uniquely

8 earned” the government’s motion pursuant to Section 5K1.1 of

9 the United States Sentencing Guidelines urging a downward

10 departure.

11 Letters submitted on Marcus’s behalf, if credited, show

12 that his arrest also marked the beginning of an admirable

13 personal transformation. In the nearly seventeen years that

14 have elapsed since his arrest, he has built both a family

15 and a business. His wife of twenty-seven years describes

16 him as a devoted husband and a loving father to their four

17 children, and a colleague reports that Marcus is a widely18 respected and fair boss who dramatically reduced his own

19 salary in the economic downturn to avoid laying off

20 employees. Further, letters from Marcus’s father and sister

21 describe Marcus as a compassionate son and brother, a man

22 who cared for them through their long illnesses.

3
1 Marcus pleaded guilty to one count of conspiracy to

2 distribute marijuana and one count of filing a false tax

3 return. The suggested Guidelines range was forty-six to

4 fifty-seven months of incarceration. With little

5 explanation, the district court imposed an incarceratory

6 sentence of one year and one day. Two weeks later, Marcus

7 filed a motion for reconsideration, which the district court

8 denied. Marcus now appeals the district court’s sentence as

9 procedurally and substantively unreasonable.

10 DISCUSSION 

11 We review the sentence imposed by the district court to

12 ascertain whether it is reasonable. Gall v. United States,

13 552 U.S. 38, 46-47 (2007); United States v. Cavera, 550 F.3d

14 180, 187-88 (2d Cir. 2008) (en banc). Reasonableness review

15 is “akin to review for abuse of discretion.” United States

16 v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). Our review

17 for reasonableness has both procedural and substantive

18 components. See, e.g., Cavera, 550 F.3d at 189. 

19 Marcus first contends that his sentence is procedurally

20 unreasonable for two principal reasons: (1) the district

21 court did not properly consider the factors set forth in 18

22 U.S.C. § 3553(a) in fashioning its sentence; and (2) the

4
1 district court did not adequately explain its sentence as

2 mandated by 18 U.S.C. § 3553(c). We address only the second

3 argument here. A sentence is procedurally unreasonable if,

4 among other things, the lower court fails to adequately

5 explain the basis for the sentence it imposed. See, e.g.,

6 United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009). 

7 Requiring the district court to articulate the reasons for

8 its sentence (1) “helps to ensure that [it] actually

9 consider[s] the statutory factors and reach[es] [a] reasoned

10 decision[]”; (2) “promote[s] the perception of fair

11 sentencing”; and, most importantly, (3) assures “meaningful

12 appellate review.” Cavera, 550 F.3d at 193 (internal

13 quotation marks omitted). 

14 The district court did not adequately explain its

15 sentence. Particularly troubling, given the passage of

16 fifteen years between Marcus’s arrest and sentencing, is the

17 court’s failure to discuss the extent to which it considered

18 evidence of Marcus’s rehabilitation in fashioning its

19 sentence. See United States v. Hernandez, 604 F.3d 48, 55

20 n.4 (2d Cir. 2010). Of course, the district court simply

21 might not have credited Marcus’s claims of rehabilitation,

22 see United States v. Preacely, 628 F.3d 72, 85 (2d Cir.

5
1 2010) (Lynch, J., concurring), or it might have believed the

2 seriousness of Marcus’s crime outweighed even the most

3 compelling evidence of rehabilitation. However, given the

4 paucity of the district court’s explanation, we cannot be

5 sure that the district court arrived at a reasoned decision

6 over which we can meaningfully exercise appellate review. 

7 For this reason, we vacate the sentence imposed by the

8 district court as procedurally unreasonable.

9 Because we determine that the sentence imposed on

10 Marcus is procedurally unreasonable, we do not address the

11 thorny issue of whether, under the unique circumstances of

12 this case, an incarceratory sentence of one year and one day

13 is substantively unreasonable. On remand, the district

14 court shall have plenary authority to impose a sentence

15 consistent with law. We further elect to remand in

16 accordance with the procedures set forth in United States v.

17 Jacobson, 15 F.3d 19, 22 (2d Cir. 1994). Either party may

18 restore jurisdiction to this Court to consider whatever

19 arguments remain or arise relating to Marcus’s resentencing

20 by sending a letter to the Clerk of the Court within 14 days

21 of the district court’s decision. Any such proceedings will

22 be assigned to this panel. 

6
1 After a thorough and searching review of the record, we

2 find Marcus’s remaining arguments to be meritless. 

3 

4 For the foregoing reasons, the sentence imposed by the

5 district court is hereby VACATED. We REMAND for

6 resentencing proceedings consistent with this order. The

7 mandate shall issue forthwith. 

8

9 FOR THE COURT:

10 Catherine O’Hagan Wolfe, Clerk

11

12

7