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United States v. Gordon

United States District Court, D. Maine

January 27, 2017

UNITED STATES OF AMERICA
v.
MARCO GORDON, Defendant.

          ORDER IN RESPONSE TO FIRST CIRCUIT REMAND

          George Z. Singal United States District Judge

         This matter is before the Court as a result of the First Circuit's December 12, 2016 Order (ECF No. 384), which directed this Court to further address the factual basis for its finding that Gordon qualified for a two-point enhancement under U.S.S.G. § 2D1.1(b)(15)(E), also known as the livelihood enhancement. Specifically, the First Circuit seeks factual clarification on the basis for the Court's determination that Gordon derived income from the pattern of criminal conduct that exceeded $14, 500 in a twelve-month period.

         As directed by this Court, the parties filed supplemental briefs on this issue (ECF Nos. 392 & 393). In their briefs, both sides took the position that the Court should take no further evidence on this issue. See Def. Brief (ECF No. 392) at 5; Gov't Brief (ECF No. 393) at 2. Rather, both sides proposed various factual findings that the Court could make in light of the PSR and evidence received at sentencing.

         Having considered these proposed factual findings, along with the entire record that was before the Court at the November 6, 2015 sentencing, the Court makes the following findings with respect to the livelihood enhancement:

(1) Giving Defendant the full benefit of the Government's concession that drug quantity should be capped at 839 grams for this conspiracy, which lasted fifteen months, the preponderance of the evidence readily supports a finding that the conspiracy distributed 671.2 grams of cocaine base for the twelve-month period from January 9, 2014 to January 9, 2015.
(2) The conspiracy sold “pieces” or “rocks” of cocaine base for $40 a piece. Each piece weighed at least 0.2 grams and no more than 0.5 grams. (See PSR ¶¶ 10 (noting “two baggies” totaling 0.58 grams were sold for $90); 21 (noting 0.31 grams found in Defendant's pocket); 27 (noting “rocks weighed approximately 0.5 grams”); 30 (0.2 gram per piece).)[1]
(3) Using the reasonable estimate of 0.3 grams per rock, the conspiracy would have distributed at least 2, 237 rocks and thereby grossed approximately $89, 480 ($40 per rock) during the one-year period in question.
(4) When agents executed the search warrant that led to Gordon's arrest on January 9, 2015, agents found $990 dollars and 0.31 grams of cocaine base in Gordon's pocket. An additional $3, 425.46 was found in the apartment near Gordon as well as 183.6 grams of cocaine base. (PSR ¶ 21.)
(5) Again using the estimate of 0.3 grams and $40 per rock, the Court concludes that the estimated street value of the cocaine base seized on January 9, 2015 was $24, 520. Adding the cash found in the apartment, the “snapshot” of the gross proceeds of the conspiracy found in the possession of Gordon on January 9, 2015 totaled approximately $28, 935.
(6) While the Court recognizes that Gordon was one of multiple co-conspirators, there is no reliable evidence that allows the Court to determine precisely how the gross income of the conspiracy was divvied up among Gordon and his co-conspirators.[2]
(7) Nonetheless, the Court finds that during the twelve-month period measured from January 9, 2014 to January 9, 2015, Marco Gordon personally derived gross income in excess of $14, 500 from the pattern of criminal conduct underlying Counts I & IV. This conclusion is supported not only by the estimated quantities sold during the conspiracy but also by the amount of cash and cocaine base seized on January 9, 2015.
(8) Given the Government's concession and the preponderance of the evidence regarding the amounts Gordon and Joiner paid Russell Gordon to procure the cocaine base for sale, the Court finds that Gordon's net income for the period in question was less than $14, 500. (See Gov't Brief at 3; PSR ¶ 29.)
(9) The Court acknowledges that Gordon proffered that he made a living as an “in-home barber” earning between $200 and $600 a week during the time period in question (PSR ¶ 72), although this could not be verified. In fact, at sentencing, counsel acknowledged that Gordon “often [cut hair] for free, other people paid him.” (11/6/15 Sentencing Tr. (ECF No. 319) at 19.) Given the more detailed, corroborated information regarding the amounts Defendant made from sales of cocaine base during 2014 and the early days of 2015, the preponderance of the credible evidence presented at sentencing does not support a finding that Gordon's primary occupation was “barber” for the period in question. Rather, the Court finds that his primary occupation for the period in question was drug dealer and that his personal gross income from that occupation exceeded $14, 500 for the year prior to his arrest.

         Given these findings and using a gross income approach, the Court reiterates its conclusion that the preponderance of the evidence supports a livelihood ...


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