Mark was charged with one count of conspiracy to manufacture, distribute, and possess with intent to distribute in excess of 1kg of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §846; and two counts of aiding and abetting the manufacture of methamphetamine in excess of 1kg of a mixture or substance containing a detectable amount of methamphetamine, both in violation of 21 U.S.C. §841(a)(1).
On October 31, 2000, following a seven-day jury trial, Mark was found guilty and later sentenced to three concurrent life sentences. On August 7, 2006, following several appeals, his sentence was reduced to 30 years through a “stipulation agreement.” This “stipulation” was the equivalent of an “out of court settlement”. Mark never won any appeal! The Government and Mark’s new Habeas Corpus (appeal) attorney came to this stipulation agreement in order to avoid an evidentiary hearing (which had already been granted by the Court).
The stipulation worked this way: Mark’s Base Offense Level was 38, Category I. He received a two-level enhancement for having a “manager/supervisor” role (this was reduced from the original three-level enhancement for “leadership” role). He then received another two-level enhancement for “obstruction of justice” for testifying on his own behalf. This gave him a total guideline level of 42 (360 months - life), with the Government agreeing to the low end of the guideline range resulting in a sentence of 360 months. (Mark’s original guideline was a Level 43 Category I, which resulted in his life sentence).
Let's take a closer look at Mark's original sentencing hearing on April 4, 2002 where he received his three life sentences. Compassion and consideration were non-existent.
ASSISTANT U.S. ATTORNEY - PROSECUTOR:
"We can all, perhaps, have our opinions or agree or disagree on
the relative severity or not of the sentencing guidelines with
respect to some of these drug offenses, but it’s based on a
Congressional determination delegated to the Sentencing
“Your Honor, with the application of the sentencing guidelines where
they are in this particular case, obviously, there’s not much, if any,
discretion on the part of the Court. It gives me no pleasure to be part
of a sentence that is, without a doubt, a very severe sentence for this
young man.” “…and Congress and the Sentencing Commission have
made it their judgment that this is an appropriate sentence for these
crimes. So we would simply ask that the Court apply the guidelines to
ATTORNEY CARMEN NASUTI (REPLACED THE TRIAL ATTORNEY AND HANDLED THE SENTENCING HEARING):
"I truly believe that we have a case such as this, with a defendant such as
this - to impose a sentence for a first-time offender in a non-violent case
where there's no evidence of guns and violence and hurting people, things
of that nature, I mean, murders and violence that normally accompany
offenses involving narcotics and drugs, with the background of a person
with no record - imposing a life sentence without parole is - excessive in
terms of what the guidelines mandate and what the facts of the case and
the background of the defendant --."
HONORABLE HERBERT H. HUTTON (U.S. DISTRICT COURT JUDGE):
“Well, the guidelines – the guidelines do mandate that, counsel.”
“I thought you were accusing me of having reached that conclusion.”
“The guidelines reach that conclusion.” “the guidelines tells me that he
must serve life in prison without parole. I don’t tell him. They tell me.”
“So what you’re asking me to do is go outside of the guidelines.” “And,
unfortunately, the end result is the end result.”
“Perhaps a higher Court will be able to give you the relief that you seek.
I don’t think I have, in my view of this evidence, in my recollection of this
trial, and my understanding of the – my responsibilities that I can give
you the relief that you so request.”
“The Court approves and adopts the presentence investigation report in
its entirety. Having done so, pursuant to the Sentencing Reform Act of
1984, it is the judgment of the Court that the defendant, of the Bureau of
Prisons for life imprisonment on each counts 1 and 4, (5), said terms
to run concurrently.’
To emphasize how out of balance Mark’s sentence is (and was) compared to all of his codefendants: All of Mark’s indicted and unindicted co-conspirators were repeat offenders, some of whom had murder, guns, violence, and repeated drug-kingpin convictions. They all received an average of 5 ½ years, simply because they agreed to cooperate and testify at Mark’s trial. Some even received no jail time at all. Yet, Mark received the longest sentence and (as of 2017) was the only one still in prison.
To further point out how incredible this is, Mark’s lack of a criminal past and criminal behavior was used against him when his attorney asked for leniency at his sentencing hearing. The reason for denying leniency was explained as follows:
ASSISTANT U.S. ATTORNEY - PROSECUTOR:
“Moreover, the thrust of the defendant’s character letters that I’ve read
and that have been submitted to the Court, which are very supportive
to Mr. Lanzilotti and certainly demonstrate that a lot of people have
very high regard for Mr. Lanzilotti hasn’t particularly changed his
behavior at all, The thrust of the letters is that he’s always been a good
person and, therefore, there’s really been nothing to rehabilitate.”
With that line of reasoning, when it comes to the Federal Criminal Court system, the only people who deserve a break or second chance are the worst-of-the-worst that society has to offer.
However, to hear Mark explain it, he accepts the fact that if it were not for his actions back in 1996, he would not have been stuck in this nightmare. And, as strange as it may sounds, Mark gives credit to the AUSA who argued for his life sentence. This is because it was the same AUSA who, several years later in 2006, took the unusual step of allowing Mark to come out from his life sentence without even winning an appeal and agreed to a new 30-year sentence. Thirty years was still too excessive for what Mark was convicted of, but the AUSA’s actions allowed Mark to have a little bit better quality of life, as far as how and where he served his prison sentence. (Mark no longer had to serve his time in a High/USP, he was eventually moved down in custody/security levels and transferred to a Low-security Facility).
To give you an idea of the kind of sentence Mark received, and to put it into better perspective, compare the following offenses and the range of sentences under the U.S. Sentencing Guidelines:
A person who hijacks an airplane and pleads guilty is at an offense Level 35
A person who commits second degree murder and pleads guilty is at offense
Level 35 (15 years)
For a bank robber to get to a Level 35 and get 15 years, he would have to fire
a gun, inflict serious bodily injury on a victim, physically restrain another
victim, and steal $2.5 million
In 2012, four men were charged in Cleveland, Ohio with conspiracy to commit
terrorism and conspiracy to use a weapon of mass destruction for plotting to
blow up one of the city's bridges. Then each defendant was sentenced to
20 years (a full decade less than what Mark got).
Mark paid his debt to society a long time ago, but he continues to “over-pay” with a total of an extra two decades because of bad legal counsel. The evidence of this is clear.
Despite new evidence, the Rules of Procedure leave no way for Mark to submit any motions or appeals to the Court.
Since Mark’s ordeal began in 2000, there have been several changes in law, U.S. Supreme Court rulings, and amendments to the U.S. Sentencing Guidelines.
These long overdue changes are modest at best, but they are steps in the right direction. However, these changes are too little too late for Mark, he was sentenced under laws and rules that are now considered “outdated”, and because of the stringent time frames, he was prohibited from benefiting from the numerous changes that could have reunited Mark with his family and friends much sooner.