United States v. Marquis Shaw

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 4, 2022
• Docket: 18-50384
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 4 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50384

Plaintiff-Appellee, D.C. No. 2:14-cr-00338-SJO-4 v.

MARQUIS SHAW, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Argued and Submitted February 9, 2022 Pasadena, California

Before: SCHROEDER, TALLMAN, and LEE, Circuit Judges.

Marquis Shaw appeals his 420-month sentence imposed following his jury

conviction for one count of distribution of crack cocaine in violation of 21 U.S.C.

§ 841 and two counts of distribution of crack cocaine within 1,000 feet of a school

or public park in violation of 21 U.S.C. § 860. The jury acquitted him on charges

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. of (1) violating the Racketeer Influenced and Corrupt Organizations Act (“RICO”)

for conspiring to manufacture and distribute controlled substances, (2) committing

a Violent Crime in Aid of Racketerring (“VICAR”) (in this instance a murder), (3)

carrying or using a firearm in furtherance of the RICO conspiracy or the VICAR

murder, and (4) conspiring to distribute cocaine, crack cocaine, and marijuana.

The sentence included a career offender enhancement imposed on the basis

of two prior felonies. One was a 1994 marijuana conviction under a statute that

decades later was reduced to an infraction punishable by a fine not to exceed $100.

Shaw challenges the court’s reliance on that conviction because the underlying

offense is no longer considered a felony. Under the Guidelines, however, prior

convictions qualify as predicates for career offender status unless the conviction

was set aside because of “innocence” or “subsequently discovered evidence

exonerating the defendant,” because of “errors of law,” or because the conviction

was “ruled constitutionally invalid.” See U.S. Sent’g Guidelines Manual § 4A1.2,

application notes 6, 10. Indeed, the Guidelines expressly contemplate that at least

some felony convictions that are no longer considered felonies at the time of

sentencing will still count as career offender predicates. See id. § 4B1.1,

application note 4. Shaw’s conviction was redesignated to an infraction for

reasons “unrelated to the merits of the underlying criminal proceedings.” Prado v.

2 Barr, 949 F.3d 438, 441 (9th Cir. 2020). Thus, Shaw’s conviction was not

redesignated because he was innocent, an error of law occurred, or the conviction

was ruled constitutionally invalid, and the district court correctly relied on that

conviction for the enhancement.

Shaw also contends that the district court made a number of errors related to

the use of acquitted conduct at his sentencing. Shaw’s claim that the use of

acquitted conduct violated the Sixth Amendment is foreclosed by a prior decision

of this Court. See United States v. Mercado, 474 F.3d 654, 655-58 (9th Cir. 2007).

Shaw also claims that the use of acquitted conduct violates due process under the

Fifth Amendment. This claim receives plain error review. See United States v.

Perez, 962 F.3d 420, 435 (9th Cir. 2020) (applying plain error review to a Fifth

Amendment claim brought up for the first time on appeal). Shaw cannot show that

the use of acquitted conduct was plain error because the Supreme Court has stated

that the use of acquitted conduct at sentencing “generally satisfies due process” as

long as the conduct was proven by a preponderance of evidence. See United States

v. Watts, 519 U.S. 148, 156 (1997). Shaw’s claim that the court incorrectly

considered acquitted conduct as relevant conduct for purposes of § 1B1.3(a)(2) is

unsupported by the record, which shows that the court expressly stated that it

3 considered that conduct as part of the § 3553(a) sentencing factor analysis, not as

relevant conduct under § 1B1.3(a)(2).

The record does not reflect that Shaw demonstrated contrition at any time

after his conviction; he was not entitled to a deduction for acceptance of

responsibility. See United States v. Rodriguez, 851 F.3d 931, 949 (9th Cir. 2017).

Shaw’s sentence was predicated, in large part, on his status as a career

offender, and courts may take career offender status into account without violating

the Eighth Amendment. See, e.g., Ewing v. California, 538 U.S. 11, 29-30 (2003).

The district court presided over Shaw’s 18-day trial stemming from a multi-

defendant indictment. Shaw’s trial included evidence of his conduct relating to his

membership in the gang known as the Broadway Gangster Crips, and the role he

played in gang activities. Shaw points to nothing the district court considered in

sentencing that was not disclosed to him prior to sentencing. Thus, there was no

violation of Federal Rule of Civil Procedure 32.

Nor does the record support Shaw’s argument that the district court failed to

consider disparities in sentences of co-defendants as appropriate under § 3553.

The district court expressly noted differences between Shaw’s conduct and that of

co-defendants. The sentence was therefore neither procedurally nor substantively

unreasonable.

AFFIRMED.