United States v. Marlon Collin

Filing

PER CURIAM OPINION FILED - THE COURT: William Jay Riley, Michael J. Melloy and Jane Kelly (UNPUBLISHED); Granting [4031492-2] motion to withdraw as counsel filed by Mr. Daniel Allen Benson. [4102492] [12-4044]

United States Court of Appeals
For the Eighth Circuit
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No. 12-4044
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Marlon Terrell Collins
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: November 18, 2013
Filed: December 5, 2013
[Unpublished]
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Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.
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PER CURIAM.
Marlon Terrell Collins appeals the sentence he received after pleading guilty
to conspiracy to distribute 500 grams or more of cocaine powder and 8 kilograms of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. The district

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court1 imposed a within-Guidelines-range sentence of 246 months, which was also
within the range contemplated in Collins's plea agreement. On appeal, his counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), questioning
the substantive reasonableness of Collins's sentence, suggesting that the court did not
properly consider the 18 U.S.C. § 3553(a) statutory sentencing factors, and arguing
that the sentence imposed was greater than necessary to accomplish the goals of
federal sentencing. Collins submitted a pro se supplemental brief raising
substantially similar issues. Finding no abuse of discretion, we affirm.
I.
In September 2010, officials learned that Collins was obtaining narcotics in
Arizona and arranging for their shipment with FedEx to Minnesota. Officials placed
Collins under surveillance and observed him sending a package to an address in
Minnesota. Officials intercepted the package, used a drug-sniffing dog to detect the
presence of drugs, and eventually discovered 8.13 kilograms of marijuana and 1.48
kilograms of cocaine inside. Collins was arrested in Minnesota, and he later entered
into a plea agreement with the United States.
The plea agreement and pre-sentence report both state that Collins's criminal
history was category VI and his offense level was 34, which included a three-level
adjustment for acceptance of responsibility. Collins had two previous federal
convictions and was on supervised release at the time of his arrest. Collins's resulting
guideline range was 262–327 months' imprisonment. During the sentencing hearing,
the government requested a sentence of 296 months and Collins requested 120
months, the mandatory minimum sentence. The district court imposed a sentence of
264 months. On appeal, Collins argues that the district court did not take into account

1

The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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all of the § 3553(a) factors, gave insufficient weight to the effects of Collins's
difficult upbringing, and ignored the remorse he expressed at the sentencing hearing.
II.
We use an abuse-of-discretion standard when reviewing sentences for
substantive reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007).
"[S]ubstantive appellate review in sentencing cases is narrow and deferential. . . . [I]t
will be the unusual case when we reverse a district court sentence—whether within,
above, or below the applicable Guidelines range—as substantively unreasonable."
United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (internal
quotation marks omitted). On appeal, a circuit court can presume that a sentence
within the guidelines range is reasonable. United States v. Nash, 627 F.3d 693, 697
(8th Cir. 2010) (citing Rita v. United States, 551 U.S. 338, 347 (2007)). The district
court abuses its discretion when it, among other things, "fails to consider a relevant
factor that should have received significant weight." Feemster, 572 F.3d at 461
(internal quotation marks omitted).
After a careful, independent review of the record under Penson v. Ohio, 488
U.S. 75, 82–83 (1988), we conclude that the district court properly weighed
appropriate sentencing factors and imposed a substantively reasonable sentence. The
pre-sentence report described Collins's personal background, including a troubled
childhood and absence of a father figure. During Collins's sentencing hearing,
Collins's attorney again presented this information to the court, and Collins expressed
his remorse for having committed the offense and apologized to his family. The
district court addressed the early challenges Collins faced, stating: "[I]t's very hard
to come from the sort of background that you did. . . . There's no question at all that
this—that's a tough way to start out in life."

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The district court based Collins's sentence on his likelihood of recidivism,
demonstrated by Collins's previous drug convictions and the fact that he continued
to commit crimes while on supervised release. The district court acknowledged the
fact that the advisory guidelines range was high for a third offense, stating: "[T]he
fact that the career offender guidelines are so much higher makes sense if you think
about [it] . . . You know you do it, you do it again, you do it again. Sort of makes you
think, . . . from the point of view of community safety and the likelihood that the
person is really going to turn their life around and take advantage of the things that
we're offering you, you know, it's just not a good sign." Weighing Collins's
likelihood of recidivism and the serious nature of his offenses over Collins's personal
characteristics and background was within the court's discretion. See United States
v. Wisecarver, 644 F.3d 764, 774 (8th Cir. 2011).
III.
The district court properly calculated the advisory Guidelines range for Collins,
took into account Collins's § 3553(a) factors, and sentenced Collins within a range
prescribed by the Guidelines. We conclude that the sentence imposed was not
substantively unreasonable. We affirm the judgment of the district court, and we
grant counsel's motion to withdraw.
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