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United States v. Marshal

United States District Court, D. South Carolina, Columbia Division

September 5, 2019

United States of America,
v.
Marko Deangelo Marshal, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

         This case comes before the court on Defendant' spro se Motion for Relief Under First Step Act of 2018. ECF No. 1555. The Government filed a Response in Opposition. ECF No. 1561. The United States Probation Office filed a Sentence Reduction Report indicating Defendant does not qualify for relief under the Act. ECF No. 1560.

         The court has reviewed the above filings as well as the Superseding Indictment (ECF No. 366), Defendant's Plea Agreement (ECF No. 564), Transcript of Rule 11 hearing (ECF No. 1562), and Presentence Report ("PSR") (ECF No. 1560-1), and concludes that Defendant is not eligible for relief under the First Step Act.

         BACKGROUND

         It was charged in Count 1 of the Superseding Indictment that Defendant:

knowingly and intentionally did combine, conspire, agree and have tacit understanding with each other and with others, both known and unknown to the grand jury, to knowingly, intentionally, and unlawfully possess with intent to distribute and to distribute cocaine and cocaine base (commonly known as "crack" cocaine), both Schedule II controlled substances, said conspiracy involving 5 kilograms or more of cocaine, and 50 grams or more of "crack" cocaine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A); All in violation of Title 21, United States Code, Section 846.

ECF No. 366 at2.

         Defendant thereafter entered into a Plea Agreement that provided for a plea to Count 1:

The Defendant agrees to plead guilty to Count 1 of the Superseding Indictment now pending, which charges conspiracy to distribute 5 kilograms or more of cocaine and 50 grams or more of "crack" cocaine, a violation of Title 21, United States Code, Sections 846, 841(a)(1), and 841(b)(1)(A).

         In order to sustain its burden of proof as to this offense, the Government is required to prove the following:

A. The conspiracy was knowingly and willfully formed and was in existence on or about the dates set forth in the Superseding Indictment;
B. The defendant joined the conspiracy with knowledge of the conspiracy's unlawful purpose; and
C. The defendant distributed 50 grams of "crack" cocaine and 5 kilograms or more of cocaine, agreed to the distribution of same or the distribution of same was reasonably foreseeable to and within the scope of the defendant's agreement.
Possible Penalties for 21 U.S.C. §§ 846 and 841(b)(1)(b)
A mandatory minimum term of 20 years, a maximum of life, a maximum fine of $8, 000, 000, a ten year term of supervised release and a $100.00 special assessment.[1]

ECF No. 564 at 1-2.

         At the Rule 11 hearing, the court advised Defendant:

In the case of Mr. Marshal, you're proposing to plead guilty to count one of the superseding indictment, this is conspiracy to distribute 5 kilos or more of cocaine and 50 grams or more of crack. The government would have to be able to prove that you - this conspiracy as set forth in the superseding indictment, which is alleged to have begun in or around 2006, that in fact it was knowingly and willfully formed and in existence on or about these dates, that at some point in time you intentionally joined in the conspiracy with knowledge of its unlawful purpose, and that during the time you were involved in the conspiracy you either personally distributed in excess of five kilos of cocaine and 50 grams or more of crack or agreed with others to do that or it was reasonably foreseeable to ...

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