Interlocutory Appeals, Drug Quantity Proof, and Sentencing Records in Federal Drug Cases:
A Commentary on United States v. Marc (11th Cir. 2025)

I. Introduction

This commentary examines the unpublished Eleventh Circuit decision in United States v. Pierre C. Marc, No. 24-12378 (11th Cir. Nov. 21, 2025) (per curiam, non-argument calendar, not for publication). Although non-precedential, the opinion provides a compact but important reaffirmation of several recurring doctrines in federal criminal practice:

• That a notice of appeal from a non-appealable interlocutory order does not divest the district court of jurisdiction.
• That controlled buys and cooperating witnesses can supply both probable cause and the evidentiary basis to meet high drug-quantity thresholds in conspiracy prosecutions.
• That Apprendi is satisfied so long as the sentence does not exceed the statutory maximums supported by the jury's findings.
• That state nolo contendere dispositions, even without formal conviction, may count toward federal criminal history points under the Sentencing Guidelines.
• That an appellant who fails to provide a sentencing transcript generally loses the ability to challenge guideline enhancements on appeal.

The case arises from a federal controlled buy operation targeting fentanyl distribution in Florida. After known drug dealer Calfus Drummond was arrested, federal agents used him as a cooperating defendant to orchestrate a wholesale fentanyl purchase from his supplier, Pierre Marc. The controlled buy led to Marc’s arrest with approximately 250 grams of fentanyl and some marijuana, and ultimately to charges of drug conspiracy and possession with intent to distribute.

The procedural history is notable: Marc initially pled guilty, successfully sought vacatur of his plea on ineffective assistance grounds, elected to proceed pro se, and then mounted a series of jurisdictional and “fraud on the court” attacks. He attempted an interlocutory appeal of pretrial orders, which this Court previously dismissed for lack of jurisdiction. After a jury trial, he was convicted of a multi-drug conspiracy and substantive possession count, acquitted on a firearm charge, and sentenced to 30 years’ imprisonment.

On appeal, Marc—still pro se—raised four clusters of issues:

1. His interlocutory notice of appeal from pretrial orders supposedly divested the district court of jurisdiction to proceed to trial.
2. His wide-ranging “judicial notice of fraud” allegations: forged signatures, lack of probable cause, absence of a grand jury, vindictive superseding indictment, and illegal wiretap.
3. Insufficiency of the evidence, particularly as to the drug quantities (5 kilograms of cocaine and 400 grams of fentanyl) supporting the conspiracy count.
4. Sentencing errors: an alleged Apprendi violation, miscalculation of his criminal history category, and an erroneous two-level enhancement based on allegedly false testimony.

The Eleventh Circuit rejected each argument and affirmed the convictions and sentence. The analysis below unpacks the court’s reasoning and situates it within the broader fabric of federal criminal and appellate law.

II. Summary of the Opinion

The court’s main holdings can be summarized as follows:

1. Jurisdiction and interlocutory appeal: Marc’s notice of appeal from non-final, non-collateral pretrial orders (denying his “judicial notice of fraud” motion and a “motion to correct”) did not divest the district court of jurisdiction. Such orders are not appealable; a notice of appeal from a non-appealable order is jurisdictionally ineffective.
2. “Fraud on the court” and pretrial challenges:
   • The district court acted within its discretion in requiring the government to respond only to Marc’s wiretap allegation and not to his other fraud claims.
   • There was no clear error in the district court’s factual finding that the magistrate judge’s signature (on the arrest warrant) was genuine.
   • The warrantless arrest was supported by probable cause, based on a controlled buy from a cooperating co-defendant (Drummond) and a recorded drug negotiation.
   • The grand jury indictment was valid; the district court’s records confirmed that a properly empaneled grand jury with a quorum voted to return the indictment.
   • The superseding indictment was not vindictive; although it increased the alleged quantities and added heroin to the conspiracy count, it did not add new charges, and Marc showed no retaliatory motive.
3. Sufficiency of the evidence: Marc failed properly to preserve a sufficiency challenge, so review was for “miscarriage of justice.” On that standard, the multi-source evidence (buyer testimony, cooperator testimony, seized drugs, and recordings) easily supported the jury’s findings that Marc conspired to distribute at least 5 kilograms of cocaine and 400 grams of fentanyl.
4. Sentencing:
   • Apprendi: A 30-year sentence did not exceed the statutory maximums for either count (life for the conspiracy count under § 841(b)(1)(A), and 40 years for the possession count under § 841(b)(1)(B)), so there was no Apprendi violation.
   • Criminal history: Marc’s prior nolo contendere pleas that resulted in fines (not more than 60 days’ imprisonment) were properly counted as criminal history points under U.S.S.G. §§ 4A1.1(c) and 4A1.2(a)(1), (f), yielding criminal history category II.
   • Two-level enhancement: Because Marc did not provide a sentencing transcript, the appellate court could not evaluate his fact-based challenge to an enhancement allegedly based on an “unreliable” witness. Under Fed. R. App. P. 10(b)(2) and Eleventh Circuit precedent, this failure compelled affirmance.

The court therefore affirmed in full.

III. Detailed Analysis

A. Procedural Background and Case Context

The underlying facts are typical of large-scale drug prosecutions:

• The Drug Enforcement Administration arrested known drug dealer Calfus Drummond.
• Drummond agreed to cooperate and arranged a controlled fentanyl purchase from his supplier, Pierre Marc, with federal agents monitoring the call.
• On the recorded call, Drummond ordered “a quarter or a half kilo” of fentanyl; Marc quoted a price and agreed to meet at a prearranged location.
• Agents arrested Marc at the drop-off site and recovered approximately 250 grams of fentanyl and marijuana.

The initial indictment alleged, as relevant here:

• Count I: Conspiracy to possess with intent to distribute 40 grams or more of fentanyl, a detectable amount of cocaine, and a detectable amount of marijuana (21 U.S.C. §§ 846, 841(b)(1)(A), (C), (D)).
• Count II: Possession with intent to distribute 40 grams or more of fentanyl, a detectable amount of cocaine, and a detectable amount of marijuana (21 U.S.C. § 841(a)(1), (b)(1)(B)-(D)).

Marc initially pleaded guilty to Count I and received a 120-month sentence. The district court later found ineffective assistance of counsel, vacated the plea, and set the case for trial. After Marc chose to represent himself:

• The government filed a superseding indictment with enhanced drug quantities:
  • Count I: Conspiracy involving 400 grams or more of fentanyl, 5 kilograms or more of cocaine, marijuana, and heroin.
  • Count II: Possession with intent to distribute 40 grams or more of fentanyl, marijuana, and (initially) cocaine, though the cocaine component of Count II was later stricken.
• Marc flooded the court with motions, including an “Emergency Motion for [the] Court to Take Judicial Notice of Fraud Upon the Court.”
• After the district court denied that motion and a related “motion to correct,” Marc filed an interlocutory notice of appeal and sought a stay; both this Court and the district court rejected those efforts as non-appealable and frivolous.

The case proceeded to jury trial, resulting in:

• Guilty verdicts on the conspiracy and possession-with-intent counts.
• An acquittal on a separate firearm count under 18 U.S.C. § 924(c)(1)(A)(i).
• A 30-year sentence (360 months).

Against this backdrop, the appellate issues are best viewed as an attempt to relitigate pretrial jurisdictional, procedural, and factual disputes, along with standard sufficiency and sentencing challenges.

B. Interlocutory Appeals and District Court Jurisdiction

1. Precedents Cited

On the jurisdictional question, the panel relied on a familiar line of Eleventh Circuit and Supreme Court authority:

• Shewchun v. United States, 797 F.2d 941, 942 (11th Cir. 1986): Filing a notice of appeal from an appealable order “divests the trial court of jurisdiction over the matters at issue in the appeal.”
• United States v. Khoury, 901 F.2d 948, 969 n.20 (11th Cir. 1990): Clarifies that a notice of appeal from a non-appealable order does not divest the district court of jurisdiction, citing:
  • United States v. Hitchmon, 602 F.2d 689, 694 (5th Cir. 1979) (en banc), as binding Fifth Circuit precedent adopted by the Eleventh Circuit, later superseded on unrelated statutory grounds.
  • United States v. Martinez, 763 F.2d 1297, 1308–09 (11th Cir. 1985), recognizing Hitchmon’s partial supersession.
• 28 U.S.C. § 1291: Confers jurisdiction only over “final decisions” of the district courts, subject to limited exceptions.
• Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949): Establishes the “collateral order doctrine,” allowing immediate appeal of a “small class” of prejudgment orders that are effectively unreviewable after final judgment.
• United States v. Marc, No. 23-13955 (11th Cir. Jan. 31, 2024): The earlier appeal in Marc’s own case, where this Court dismissed his interlocutory appeal of the pretrial orders for lack of jurisdiction because the orders were neither final nor collateral.
• United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995): Applied for the standard of review—whether an interlocutory appeal divests the district court of jurisdiction is reviewed de novo.

2. Legal Reasoning

The panel’s reasoning is straightforward and doctrinally orthodox:

1. Appealable vs. non-appealable orders: Only final decisions (and a narrow band of collateral orders) are immediately appealable under § 1291 and Cohen. The pretrial denials of Marc’s “fraud” motion and his “motion to correct” did not terminate the criminal proceedings nor fall within the collateral-order exceptions.
2. Prior dismissal of Marc’s interlocutory appeal: When Marc previously attempted to appeal these same orders, the Eleventh Circuit in case no. 23‑13955 explicitly held that:
   • The case had not proceeded to judgment; no conviction or sentence existed; therefore, no final order.
   • The issues raised could be reviewed on appeal from a final judgment; hence, the collateral order doctrine did not apply.
3. Jurisdictional consequence: Because the orders were non-appealable, Marc’s notice of appeal was a nullity for jurisdictional purposes. Under Khoury and Hitchmon, the district court retained full authority to proceed to trial.

The court thus rejected Marc’s claim that his interlocutory appeal had somehow frozen the case or deprived the district court of power to try him.

3. Impact

Even though unpublished, this part of Marc provides a clear, practical illustration of the general rule:

• Defendants—especially pro se defendants—cannot halt or delay criminal proceedings merely by filing notices of appeal from plainly non-appealable orders.
• District courts may continue to trial despite such notices and may characterize frivolous interlocutory appeals as non-divesting of jurisdiction, consistent with Khoury.
• Appellate courts will support this approach, as long as the underlying orders truly lack appealability and the appellant can later obtain review after final judgment.

In practice, Marc reinforces district courts’ ability to manage dockets in the face of serial, dilatory, or meritless interlocutory appeals, a recurring issue in cases with self-represented criminal defendants.

C. Disposition of “Fraud on the Court” and Related Pretrial Claims

1. Court’s Discretion in Managing Government Responses

Marc objected that the district court directed the government to respond only to his wiretap allegation, not to his five other fraud-based claims (lack of probable cause, forged signatures, lack of subject-matter jurisdiction, fake indictment, prosecutorial vindictiveness).

The panel briskly rejected this argument, emphasizing:

• District courts enjoy broad discretion in managing their dockets and directing targeted responses to motions.
• The court independently investigated the other allegations (forgery, grand jury, jurisdiction, etc.), reducing the need for a government response.
• The government remained free to respond to all claims if it wished; the court did not “illegally prevent” a fuller response.

This serves as a practical reaffirmation of trial courts’ authority to triage and streamline responses to repetitive or facially meritless filings, particularly in pro se cases.

2. Alleged Forged Judicial Signatures

Marc alleged that the magistrate judge’s signature on his arrest warrant, and separately on his criminal complaint (raised for the first time on appeal), was forged. The Eleventh Circuit treated this as a factual question and applied the clear error standard of review, citing Jones v. United Space Alliance, L.L.C., 494 F.3d 1306, 1309 (11th Cir. 2007).

The district court had found:

• It was “very familiar” with the magistrate’s signature.
• Her signatures “were not forged on court documents.”

Deferring to these findings, the appellate panel affirmed and noted:

• The complaint-signature argument was forfeited because Marc did not raise it below, citing the abandonment doctrine in Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
• Marc’s vague claim that the district judge’s signature on the judgment was not “authentic” lacked any supporting evidence.

The court thus signaled both the respect owed to the trial court’s fact-finding on document authenticity and its unwillingness to entertain unsubstantiated conspiracy-style allegations of forgery.

3. Probable Cause and Warrantless Arrest

Marc argued that he was arrested without probable cause and without a warrant, in violation of the Fourth Amendment. The panel:

• Reviewed the constitutional issue de novo, citing Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1181 (11th Cir. 2017) (en banc).
• Relied on District of Columbia v. Wesby, 583 U.S. 48, 56–57 (2018), which holds that:
  • Probable cause requires only a “probability or substantial chance of criminal activity,” not certainty.
  • Warrantless arrests are constitutional if supported by probable cause.

Applying these principles, the court emphasized:

• Agents listened in real time as Drummond arranged a wholesale fentanyl purchase from Marc.
• Marc agreed to supply a large amount of fentanyl with an agreed price and location.
• At the agreed drop-off site, Marc arrived and possessed approximately 250 grams of fentanyl.

This factual matrix easily constituted probable cause for a warrantless arrest under Wesby. The court’s characterization of the case as a “typical ‘buy-bust’” scenario underscores how conventional controlled purchases continue to satisfy Fourth Amendment standards.

4. Grand Jury Indictment and Subject-Matter Jurisdiction

Marc contended that no grand jury had been convened, rendering the indictment “fake” and depriving the court of subject-matter jurisdiction. The panel treated the question of whether a grand jury was empaneled as factual (again applying Jones’s clear-error standard) and credited the district court’s statement that:

• “Nothing [wa]s amiss in the grand jury procedure.”
• The court’s records showed a “proper grand jury was empaneled and with a quorum voted to properly return this indictment.”

The Eleventh Circuit saw “no reason to doubt this finding” and affirmed.

Implicitly, this reflects two principles:

• Federal courts apply a strong presumption of regularity to grand jury proceedings absent concrete evidence to the contrary.
• Subject-matter jurisdiction in federal criminal cases rests on the indictment’s charging of a federal offense, not on a defendant’s bare, unsupported assertions that the grand jury process was defective.

5. Superseding Indictment and Prosecutorial Vindictiveness

Marc argued that the superseding indictment—adding heroin and significantly increasing alleged drug quantities—was “vindictive” because it followed his successful challenge to his guilty plea and his decision to proceed to trial.

The panel grounded its analysis in:

• United States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006):
  • A prosecutor may seek a superseding indictment “at any time prior to a trial on the merits,” provided the purpose is not to harass.
  • A superseding indictment that increases potential penalties is impermissible if motivated by vindictiveness, that is, a desire to punish a defendant for exercising legal rights.
• United States v. Duran, 596 F.3d 1283, 1299 (11th Cir. 2010): Allegations of prosecutorial misconduct (including vindictiveness) are reviewed de novo as mixed questions of law and fact.

Applying these standards, the court observed:

• The superseding indictment did not add new counts; it “slightly expanded one Count” by enlarging the drug quantities and adding heroin to the conspiracy charge.
• Marc provided no evidence that the decision to supersede was an attempt to “harass” him or to “punish [him] for exercising his rights.”

Accordingly, the court found no prosecutorial vindictiveness. The decision fits squarely within the post-Barner framework allowing the government to refine or expand charges pretrial so long as it is not acting punitively in response to the defendant’s lawful exercise of rights (e.g., moving to withdraw a plea, insisting on trial).

D. Sufficiency of the Evidence on Drug-Quantity Elements

Marc attacked the sufficiency of the evidence, asserting that the government presented no cocaine and only 40 grams of fentanyl at trial, yet he was convicted of conspiring to distribute 5 kilograms of cocaine and 400 grams of fentanyl.

1. Standards of Review and Precedents

The panel first clarified the applicable standard of review:

• Ordinary sufficiency review: Evidence is viewed in the light most favorable to the government, with all reasonable inferences drawn in favor of the jury’s verdict. The conviction must be affirmed if “any reasonable construction of the evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt,” citing:
  • United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015).
  • United States v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011).
• Miscarriage-of-justice review: If a defendant fails to preserve a sufficiency challenge by renewing a motion for judgment of acquittal after presenting defense evidence, the Eleventh Circuit applies a narrower “miscarriage of justice” standard, under:
  • United States v. Tapia, 761 F.2d 1488, 1491–92 (11th Cir. 1985).
  • United States v. Landers, 484 F.2d 93, 94 (5th Cir. 1973).

Under this standard, reversal is warranted only if “the evidence on a key element of the offense is so tenuous that a conviction would be shocking.”

Marc did not preserve his sufficiency claim:

• After the government rested, the district court “assume[d]” Marc moved for judgment of acquittal and denied the motion.
• Marc then testified and called a character witness but did not renew the motion at the close of all the evidence.

Thus, only the miscarriage-of-justice test applied on appeal.

2. Evidence Supporting 5 Kilograms of Cocaine

To support the conspiracy’s 5-kilogram cocaine threshold, the government relied on:

• Testimony of buyer Ahmad Weston:
  • Marc supplied Weston at least half a kilogram and sometimes as much as 2 kilograms of cocaine per week.
  • This pattern occurred from January to August/September 2019.
  • Even at the low end (0.5 kg per week) over approximately 8 months, the total exceeded 30 kilograms of cocaine.
• Recordings and visual evidence: Weston identified Marc’s voice discussing cocaine in audio recordings and identified him in video recordings carrying cocaine.

This testimony alone, if credited, amply supports a finding that Marc was responsible for at least 5 kilograms of cocaine within the conspiracy’s scope. The jury was entitled to believe Weston and adopt conservative estimates of quantity based on his regular purchasing pattern.

3. Evidence Supporting 400 Grams of Fentanyl

Regarding the fentanyl threshold, the court cited multiple sources:

• Weston’s testimony: Marc supplied him with at least one ounce, and sometimes up to five ounces, of fentanyl weekly for the same January–August/September 2019 period, totaling at least 30 ounces (about 850 grams).
• Drummond’s testimony: Drummond called Marc “every other day” to obtain fentanyl for resale and occasionally purchased 16–18 ounces at a time.
• Physical seizures:
  • DEA agents found more than 1,800 grams of fentanyl in Drummond’s residence, which he said Marc had supplied.
  • The controlled buy resulting in Marc’s arrest yielded approximately 250 grams of fentanyl.

Taken together, this evidence is far from “tenuous.” It easily satisfies the 400-gram threshold under even the heightened miscarriage-of-justice standard.

4. Impact

While not announcing new law, the decision illustrates important practical points about drug conspiracy prosecutions:

• Drug quantity can be proven via testimony and historical evidence. Physical drugs seized at the arrest scene need not equal the statutory threshold; prior sales and deliveries, as recounted by co-conspirators and buyers, can supply the necessary quantities.
• Cooperator testimony remains key. The jury’s acceptance of Weston’s and Drummond’s testimony, combined with recordings and seizures, sufficed to support high drug quantities.
• Preservation matters. Defendants who fail to renew Rule 29 motions after presenting evidence sacrifice ordinary sufficiency review and face a much steeper “shocking conviction” standard on appeal.

E. Sentencing Issues

1. Apprendi and Statutory Maximums

Marc argued that his 30-year sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi requires that, other than the fact of a prior conviction, any fact increasing the penalty beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.

Here, the statutory ranges were:

• Count I (Conspiracy): 10 years to life (21 U.S.C. § 841(b)(1)(A)) for an offense involving at least:
  • 400 grams or more of fentanyl, and
  • 5 kilograms or more of cocaine (with additional substances also charged).
• Count II (Possession with intent): 5 to 40 years (21 U.S.C. § 841(b)(1)(B)) for an offense involving at least 40 grams of fentanyl.

Marc received 30 years (360 months), well below:

• The life maximum for Count I.
• The 40-year maximum for Count II.

Because the jury found the drug quantities necessary to trigger those ranges, and the sentence did not exceed the statutory maxima, the Eleventh Circuit correctly found no Apprendi violation.

2. Criminal History Category and Nolo Contendere Pleas

Marc challenged his criminal history designation as category II, asserting he had “no prior conviction.” The Presentence Report (PSR), however, credited him with two prior nolo contendere pleas that resulted in fines.

Under the Sentencing Guidelines:

• U.S.S.G. § 4A1.1(c): Assigns one criminal history point for prior sentences not counted under §§ 4A1.1(a) or (b), including many noncustodial sentences.
• U.S.S.G. § 4A1.2(a)(1), (f): Make clear that sentences resulting from a nolo contendere plea are counted, and that formal entry of conviction is not essential so long as there is some form of sentence or sanction resulting from the plea.
• The Sentencing Table (ch. 5, pt. A): Two criminal history points correspond to category II.

The court concluded that:

• Marc had two prior nolo contendere dispositions resulting in fines.
• Each generated one criminal history point.
• Two points placed him in category II.

This is a standard application of the Guidelines and highlights a recurrent trap: state dispositions (like Florida’s frequent use of nolo pleas and withholds of adjudication) may still count for federal sentencing purposes, even where no “formal” conviction is entered under state law.

3. Two-Level Enhancement and Missing Sentencing Transcript

Marc also challenged a two-level enhancement based on what he described as a “false statement by an unreliable witness.” The problem was procedural, not substantive: the record on appeal lacked the sentencing transcript, and thus the appellate court could not determine:

• Which enhancement Marc specifically objected to.
• What factual findings the district court made to support the enhancement.

The panel invoked:

• Fed. R. App. P. 10(b)(2): An appellant who claims that a finding or conclusion is unsupported by or contrary to the evidence must include in the appellate record a transcript of all relevant evidence.
• United States v. Graham, 123 F.4th 1197, 1252 (11th Cir. 2024): The burden is on the appellant to ensure a complete record; failure to do so ordinarily results in affirmance where the absence of a transcript prevents meaningful review (quoting Selman v. Cobb Cnty. Sch. Dist., 449 F.3d 1320, 1333 (11th Cir. 2006)).

Because Marc did not supply a sentencing transcript and the record was “silent on which enhancements Marc objected to at sentencing and how the district judge resolved them,” the court held it had no basis to disturb the sentence and affirmed.

This is a stark reminder, especially for pro se appellants, that:

• Appellate review is record-bound; without transcripts, arguments about fact-intensive sentencing issues typically fail.
• The burden to order and provide transcripts rests with the appellant, not the court or the government.

4. “Motion to Correct PSR” Footnote

In a brief footnote, the panel noted that Marc styled one submission as a “motion to correct the PSR” and claimed on appeal that the district court erroneously denied it. The court clarified that this filing was actually docketed and treated as an objection to the PSR, not a separate motion.

The significance is limited but instructive:

• Labels used by pro se litigants are less important than the substance and how the court treats the filing.
• For appellate purposes, it is the actual procedural posture—objection vs. motion—that matters, especially in determining whether and when issues were preserved.

IV. Complex Concepts Simplified

1. Interlocutory vs. Final Orders

A final order ends a case in the district court (e.g., a judgment of conviction and sentence). An interlocutory order is a mid-case ruling (e.g., denying a motion to suppress or a discovery motion). Only final orders, and a very narrow category of “collateral” interlocutory orders, can typically be appealed immediately.

2. Collateral Order Doctrine

Under Cohen, some interlocutory orders are immediately appealable if they:

• Conclusively determine the disputed question,
• Resolve important issues completely separate from the merits, and
• Are effectively unreviewable on appeal from a final judgment.

Examples include denials of absolute immunity. Marc’s pretrial orders did not qualify because they could be—and now have been—reviewed after final judgment.

3. Probable Cause and Warrantless Arrests

Probable cause exists when there is a fair probability that a person has committed or is committing a crime, based on the totality of the circumstances. Police do not need proof beyond a reasonable doubt or even a preponderance of the evidence.

A warrantless arrest is permissible when officers have probable cause. In drug “buy-bust” operations, real-time observation of a planned deal, recorded calls, and the suspect’s appearance at the transaction site with contraband typically suffice.

4. Conspiracy vs. Substantive Possession

A conspiracy charge (21 U.S.C. § 846) punishes the agreement to commit a drug offense plus at least one overt act (depending on circuit doctrine). The government needs to show:

• An agreement between two or more persons to commit a drug crime.
• The defendant’s knowing and voluntary participation.
• The drug type and quantity involved in the conspiracy that is reasonably foreseeable to the defendant.

A substantive possession-with-intent charge (21 U.S.C. § 841(a)(1)) focuses on the defendant’s actual or constructive possession of drugs on a particular occasion, coupled with intent to distribute.

5. The Apprendi Rule

Apprendi holds that any fact (other than a prior conviction) that increases the statutory maximum sentence must be submitted to a jury and proved beyond a reasonable doubt. It does not require jury findings for every guideline enhancement, so long as the resulting sentence stays within the statutory range authorized by the jury’s verdict.

6. Nolo Contendere (No Contest) and Federal Sentencing

A nolo contendere plea means the defendant does not contest the charge but does not formally admit guilt. Some states treat such pleas differently from guilty pleas for certain purposes. Under the federal Sentencing Guidelines, however:

• A criminal disposition after a nolo plea that results in a sentence (even a fine) counts as a “prior sentence.”
• Such dispositions generate criminal history points, even if no formal conviction is entered in state court.

7. Prosecutorial Vindictiveness

Prosecutorial vindictiveness occurs when the government adds or escalates charges in retaliation for a defendant’s exercise of a legal right (e.g., appealing or going to trial). To prevail, a defendant must show either:

• Direct evidence of retaliatory motive, or
• Circumstances that give rise to a presumption of vindictiveness (which the government can rebut).

Simply superseding an indictment with higher drug quantities, standing alone, is not vindictive if supported by evidence and not shown to be retaliatory.

8. “Miscarriage of Justice” Sufficiency Review

If a defendant does not properly preserve a sufficiency-of-the-evidence argument (by renewing a motion for judgment of acquittal after presenting defense evidence), the Eleventh Circuit reviews only for a miscarriage of justice.

Under this stringent standard, the conviction is affirmed unless the evidence on a key element is so weak that upholding the verdict would be “shocking.”

9. Fraud Upon the Court and Judicial Notice

Fraud upon the court is an extreme concept involving egregious misconduct that subverts the integrity of the judicial process (e.g., bribery of a judge, fabrication of evidence by officers of the court). Routine claims of error, perjury by a witness, or disagreement with rulings do not meet this high threshold.

Judicial notice allows a court to accept as true certain facts that are not reasonably disputable and are either:

• Generally known within the court’s jurisdiction, or
• Capable of accurate determination from unquestioned sources.

Marc’s attempt to have the court “take judicial notice” of sweeping allegations of fraud fell far outside the proper scope of this doctrine.

10. Grand Jury Indictment

In federal felony cases, the Fifth Amendment generally requires that charges be returned by a grand jury. A grand jury is a group of citizens who hear evidence presented by the prosecutor and vote on whether there is probable cause to believe the defendant committed a federal crime.

Courts assume grand jury proceedings are regular and proper absent concrete proof of irregularity. Bare assertions that a grand jury was never convened will not suffice to invalidate an indictment.

11. The Record on Appeal and Transcripts

Appellate courts decide cases based on the record transmitted from the district court. This includes pleadings, orders, exhibits, and transcripts. Under Fed. R. App. P. 10(b)(2), if an appellant wants to challenge factual findings or say the evidence does not support the judgment, he must ensure that all relevant transcripts are part of the record.

Without those transcripts, appellate courts will typically presume that the missing proceedings support the district court’s decision and will affirm.

V. Broader Significance and Potential Impact

Although United States v. Marc is expressly “not for publication” and thus not binding precedent in the Eleventh Circuit, it serves as an instructive case study in several recurring areas of federal criminal law:

• Jurisdiction and Case Management: The decision supports district courts that refuse to halt proceedings when defendants file frivolous or non-appealable interlocutory appeals. It reassures judges that adherence to Khoury and Hitchmon is appropriate even in contentious, pro se-heavy dockets.
• Controlled Buys and Probable Cause: The case reaffirms that controlled buys, recorded calls, and corroborating circumstances provide a solid foundation for warrantless arrests and for proving drug conspiracies and quantities at trial.
• Drug Quantity Proof through Testimony: The extensive reliance on buyer and cooperator testimony (Weston and Drummond) illustrates that even high statutory thresholds (5 kilograms of cocaine, 400 grams of fentanyl) can be met without physically seizing those amounts from the defendant at the time of arrest, so long as the historical pattern of dealing is credibly established.
• Sentencing Accuracy and Record-Building: The case underscores three sentencing lessons:
  • Apprendi concerns arise only when sentences exceed statutory maxima.
  • State nolo contendere dispositions often count for federal criminal history, even if state law treats them as less than formal convictions.
  • Failure to provide a sentencing transcript can be fatal to appellate challenges to enhancements or factual findings.
• Pro Se Litigation Pitfalls: Marc’s case highlights the dangers for self-represented defendants:
  • Misconceptions about jurisdiction and interlocutory appeal can lead to futile filings and lost time without legal benefit.
  • Labeling routine grievances as “fraud on the court” or demanding “judicial notice” of contested facts is doctrinally misguided and ineffective.
  • Procedural missteps (failure to preserve sufficiency claims, failure to order transcripts) can dramatically limit appellate review.

Collectively, the opinion functions as a compact primer on the interplay between procedural rules and substantive criminal law in a federal drug case, illustrating how established doctrines operate in practice rather than announcing new law.

VI. Conclusion

United States v. Marc offers a multi-faceted example of how the Eleventh Circuit applies settled principles of criminal procedure, evidence, and sentencing in a complex drug case involving a pro se defendant.

The court:

• Confirmed that notices of appeal from non-appealable interlocutory orders do not divest the district court of jurisdiction.
• Rejected unsupported claims of forged judicial signatures, lack of probable cause, nonexistent grand juries, and prosecutorial vindictiveness.
• Upheld drug-quantity findings based on cooperator and buyer testimony, recordings, and seizures, under a demanding miscarriage-of-justice review.
• Affirmed a 30-year sentence as consistent with Apprendi and the Guidelines, while emphasizing the appellant’s responsibility to provide a complete record for appellate review.

While unpublished, the opinion is doctrinally rich. It reinforces existing jurisprudence on interlocutory appeals, evidentiary sufficiency in drug conspiracies, and sentencing practice, and it stands as a cautionary illustration of the challenges facing pro se defendants navigating complex federal criminal proceedings.