Submitted: December 11, 2017
from United States District Court for the Eastern District of
Arkansas - Little Rock
SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
Marshall pleaded guilty to making a false statement to a
government agency ("Count 1") and aggravated
identity theft ("Count 2"). The district
court sentenced him to 24 months'
imprisonment on Count 1 and, as required by 18 U.S.C. §
1028A, 24 months' imprisonment on Count 2, to run
consecutively, for a total term of 48 months'
imprisonment. The court also sentenced Marshall to two years
of supervised release. Marshall appeals, arguing both
procedural error and substantive unreasonableness. We affirm.
moved from Arkansas to California in the late 1980s. He was
arrested in San Diego, California, on drug charges in 1991
and placed on a three-year term of probation. During his
probation, Marshall returned to Arkansas without leave of
California authorities, and a warrant was issued in July 1992
for violating his probation. In March 1992, while in
Arkansas, he requested and obtained a Social Security card in
the name of Terry Calvin Jones, a real person who lived in
San Diego, California, at the time.
least March 1992 until the time of his arrest in 2015,
Marshall lived as Terry Jones. He obtained government
identification and employment; filed taxes; settled insurance
claims; and was even arrested, convicted, and sentenced on
multiple occasions under that name. In 2015, Marshall was
charged in an eight-count indictment with one count of making
a false statement to a government agency, in violation of 18
U.S.C. § 1001; four counts of aggravated identity theft,
in violation of 18 U.S.C. § 1028A; and three counts of
misuse of a social security number, in violation of 42 U.S.C.
§ 408(a)(7)(B). Pursuant to his plea agreement, he
pleaded guilty to Counts 1 and 2 for completing a form to
obtain a replacement Social Security card in Terry
Jones's name in 2011. The remaining counts were
statutory maximum for Count 1 was five years'
imprisonment. 18 U.S.C. § 1001(a). Count 2 carried a
mandatory sentence of 24 months' imprisonment to run
consecutively to any other sentence imposed. 18 U.S.C. §
1028A(a)-(b). Because of their proximity to the commencement
of his offense conduct in 1992, convictions from as far back
as 1987 counted in Marshall's presentence report (PSR).
These convictions included forgery, theft, fraudulent use of
a credit card, failure to appear, and numerous drug offenses.
The district court calculated a Guidelines range of 6 to 12
months' imprisonment on Count 1.
asked the court to vary downward. He testified that he had
left California because criminals forced him to do so:
I had a flower business and I got in with the mob out there,
and they- I tried to commit suicide twice. And they told
me-they took my name, my ID and stuff, my business, and gave
me a new ID, and took me down to the Department of Motor
Vehicles in California and got me an ID card, and told me to
leave the state and never come back. So I had my mother and
father come get me.
Transcript at 24, United States v. Marshall, No.
4:15-cr-00098-BSM-1 (E.D. Ark. Dec. 9, 2016), ECF No. 39. He
also asked the court to consider that he made several
attempts to reclaim his true name in Arkansas but had been
rebuffed by government offices when he did so. Additionally,
he argued that the court should consider that he had avoided
legal trouble for nearly 15 years. Further, he claimed that
he had sought to clear up his warrant, but he lacked the
financial resources to go to California. The court also heard
the testimony of Marshall's mother, Edith McDonald, who
listed his health problems and stated that he helps her
provide for several young relatives.
government moved for an upward variance. It argued that
Marshall had been engaged in criminal activity for over 20
years because he lived under a false name while violating his
probation. The government also pointed out that
Marshall's age-related health issues should not receive
much weight due to his long-term fugitive status. The
government also referenced Marshall's 2006 DUI ...