U.S. v. Marseille

• Decision Date: 21 July 2004
• Docket Number: No. 03-12961.,03-12961.
• Citation: 377 F.3d 1249
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emmanuel MARSEILLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1249

377 F.3d 1249

UNITED STATES of America, Plaintiff-Appellee, v. Emmanuel MARSEILLE, Defendant-Appellant.

No. 03-12961.

United States Court of Appeals, Eleventh Circuit.

July 21, 2004.

Brenda G. Bryn, Fed. Pub. Def., Fort Lauderdale, FL, Richard C. Klugh, Jr. and Kathleen M. Williams, Fed. Pub. Defenders, Miami, FL, for Defendant-Appellant.

Dawn Bowen, Anne R. Schultz, Asst. U.S. Atty., Harriett Galvin, Seth Eric Miles, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BLACK, BARKETT and MAGILL^*, Circuit Judges.

MAGILL, Circuit Judge:

Emmanuel Marseille appeals his 210-month sentence for possessing ammunition as a convicted felon and his 120-month sentence for threatening to retaliate by force against a person who gave information to a federal law enforcement officer. Marseille argues that the district court mistakenly classified him as a career offender under § 4B1.1 of the United States Sentencing Guidelines ("USSG")¹ and, as a result, determined that his criminal history category was VI rather than V. Marseille also argues that the district court improperly enhanced his sentence based on three prior felony convictions that were not charged in the indictment. We affirm.

I.

This case concerns the treatment, under the Sentencing Guidelines, of a defendant who pled guilty to possessing ammunition as a convicted felon — a violation of 18 U.S.C. § 922(g)(1) — and threatening to retaliate against a confidential informant — a violation of 18 U.S.C. § 1513(b)(2). The government sought to enhance Marseille's sentence for possessing ammunition under 18 U.S.C. § 924(e) on the basis of his four previous convictions.² Based on the district court's determination that Marseille is a career offender under USSG § 4B1.1 and an armed career criminal under USSG § 4B1.4(a), the district court sentenced Marseille to 210 months in prison on the possession charge and 120 months in prison on the retaliation charge. The sentences are running concurrently.

Marseille's troubles began when federal agents in the Bureau of Alcohol, Tobacco and Firearms ("ATF") came to suspect his involvement in a home-invasion burglary that resulted in a homicide. As part of its investigation, the ATF sent a confidential informant ("CI") to infiltrate Marseille's band of brigands. The CI posed as a plumber and expressed interest in obtaining firearms from Marseille. Subsequently, the CI made several visits to Marseille's residence, where he observed weapons and transactions in illegal narcotics. At some point during these visits, Marseille told the CI that he and his band carried out home-invasion burglaries. He told the CI that he could "hook him up" with weapons and tools if the CI was interested in joining the band. This offer opened the door for the CI to set Marseille up. On May 22, 2002, the CI told Marseille of a burglary job his brother had proposed, and arranged a meeting between the two for the next day. On May 23, the CI took Marseille to a meeting with an ATF agent (posing as the CI's brother) where they discussed tentative plans for a burglary job.

Two weeks later, on June 10, Marseille called the CI and asked him to drop by his house to do some plumbing work. The CI arrived at Marseille's house on June 11. Once there, two unknown men accosted him, questioned whether he was an informant, and threatened his life repeatedly. The CI endured harrowing treatment for roughly an hour without cracking. In the end, the men told the CI he was free to go and that Marseille would contact him later in the day. Three hours later, Marseille called the CI and told him he "had passed his test." The two arranged to meet the next day, but the CI later backed out of the meeting.

On June 20, ATF agents executed a search warrant for Marseille's residence. The agents did not discover narcotics or firearms, but did discover nineteen rounds of Remington 9-millimeter ammunition. Based on this discovery and the knowledge that Marseille had prior felony convictions, the agents obtained a warrant for Marseille's arrest.

Four days later, Marseille called the CI and threatened him. He told the CI that he knew he was working for the authorities and had set him up. He said that the police should be protecting him because "otherwise, I'll shoot." The CI subsequently went into hiding. Marseille also fled when he learned that the ATF had obtained an arrest warrant.

On October 11, 2002, ATF agents located and arrested Marseille. Two weeks later, a federal grand jury returned a five-count indictment against him. On January 13, 2003, Marseille pled guilty to the two counts discussed above — counts IV and V of the indictment. The district court held a sentencing hearing on May 19, 2003, where it adopted the Presentencing Investigation Report ("PSR") and sentenced Marseille to 210 months' imprisonment on the ammunition possession charge and 120 months' imprisonment — to run concurrently — on the witness threatening charge. Marseille objected to the PSR only on the bases that it referred to prior convictions the government had not alleged in the indictment and that it counted juvenile convictions as prior convictions.³

The district court, following the approach taken in the PSR, grouped Marseille's two offenses together under USSG § 3D1.2(c) for the purpose of assigning him an offense level. Subsection (c) provides for grouping "[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in ... the guideline applicable to another of the counts." USSG § 3D1.2(c). The district court grouped Marseille's offenses because, under USSG § 3C1.1, the witness threatening offense is treated as a specific offense characteristic of the ammunition possession offense, and increases the applicable offense level by 2. USSG § 3C1.1. The base offense level for the ammunition possession offense, in Marseille's circumstances, is 24. USSG § 2K2.1(a)(2).

The district court next applied three adjustments to Marseille's offense level from Chapter Three of the Guidelines. First, the court increased the offense level by 2 because Marseille obstructed justice, as discussed above. Second, the court gave Marseille a 2-level credit for accepting responsibility under USSG § 3E1.1(a). Third, the district court gave Marseille a 1-level credit for pleading guilty in a timely fashion under USSG § 3E1.1(b)(2). Before considering Chapter Four enhancements, then, the district court determined that Marseille's offense level was 23.

Next, the district court applied the criminal history category guideline in Chapter Four, Part A. USSG § 4A1.1. Marseille had six prior criminal sentences subject to counting. Those prior sentences yielded 12 criminal history points. Twelve points is the maximum amount allowable to qualify for a criminal history category V. USSG § 5A. Consequently, after applying the guidelines in Chapter Two, Chapter Three, and Part A of Chapter Four, the district court determined that Marseille had an offense level of 23 and a criminal history category V, which together yield a sentencing range of 84-105 months.

The district court had yet to apply two important sentencing enhancements from Chapter Four, Part B, however, and these worked to double Marseille's sentencing range. First, the district court determined that Marseille is a career offender under § 4B1.1(a). That guideline specifies that a defendant is a career offender if his crime was a crime of violence, he was at least eighteen years old when he committed the crime, and he has two or more prior convictions for violent or drug-related offenses. USSG § 4B1.1(a). The district court found that the career offender guideline applies to Marseille because his threat against the CI was a crime of violence, and Marseille's juvenile convictions count as prior convictions under the guideline.⁴

Applying the career offender guideline did not change Marseille's offense level however, because the maximum penalty for threatening a witness is ten years, which yields a lower offense level than otherwise applicable. According to § 4B1.1(b), the enhanced offense level for a crime punishable by ten years is 24 — two levels lower than the 26 it would have been if analyzed solely under Chapters Two and Three.⁵ Because subsection (b) of the career offender guideline requires the court to use the greater offense level, the higher level controlled.

Applying the career offender guideline did, however, change Marseille's criminal history category. Subsection (b) provides that a "career offender's criminal history category in every case under this subsection shall be Category VI." USSG § 4B1.1(b). Thus, the district court's finding that Marseille is a career offender increased his criminal history category from V to VI, but left his offense level unchanged at 23.

Finally, the district court found that Marseille is an armed career criminal under § 4B1.4. That guideline applies to any "defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e)." USSG § 4B1.4(a). It requires a district court to enhance such a defendant's offense level and criminal history category above those provided for in other guidelines. The district court found Marseille was an armed career criminal on the basis of his prior convictions and his commission of a crime under 18 U.S.C. § 922. The guideline specifies that the offense level for an armed career criminal is the greatest of: (1) the offense level from Chapters Two and Three (26 in this case); (2) the offense level from the career offender guideline (24 in this case); or (3) 33.⁶ In this case, the default offense level of 33 is greatest, and the district court determined it applies to Marseille. The court reduced the offense level by three — to 30 — for Marseille's timely acceptance of responsibility. Similarly, subsection (c) of the armed career criminal guideline directs ...