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United States v. Marshall

United States Court of Appeals, Eighth Circuit

June 4, 2018

United States of America Plaintiff-Appellee
William Marshall Defendant-Appellant

          Submitted: December 11, 2017

          Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.

          PER CURIAM.

         William Marshall pleaded guilty to making a false statement to a government agency ("Count 1") and aggravated identity theft ("Count 2"). The district court[1] 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.

         I. Background

         Marshall 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.

         From at 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 dismissed.

         The 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.

         Marshall 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.

         Sentencing 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.

         The 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 ...

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