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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