USA v. Theodore

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA 	CRIMINAL ACTION
VERSUS 	NO. 23-53
MARCUS THEODORE 	SECTION: “P” (1)
ORDER AND REASONS
Before the Court is the “Motion to Dismiss Indictment Pursuant to 18 U.S.C. § 922(g): As
a Unconstitutional; Due Process Violation For Double Prosecution of The Same Firearm”1 filed
by Defendant Marcus Theodore on his own behalf. 	For the following reasons, Mr. Theodore’s
motion is DENIED.
I. 	BACKGROUND
On April 25, 2024, the Government filed the Second Superseding Indictment in this matter,
charging Marcus Theodore with: (1) conspiracy to distribute and to possess with the intent to
distribute Fentanyl, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (“Count One”); (2)
possession with intent to distribute Fentanyl, in violation of 18 U.S.C. §§ 841(a)(1) and (b)(1)(B)
(“Count Two”); (3) possession of a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A)(i) (“Count Three”); and (4) felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) and 924(a)(8) (“Count Four”).2 On January 10, 2025, Mr.
Theodore pled guilty before this Court to Counts Two, Three, and Four of the Second Superseding
Indictment.3 And on May 27, 2025, the Court imposed the sentence against Mr. Theodore, which
included a total term of imprisonment of 180 months.4 Of the 180 months, 120 months were
1 R. Doc. 179.
2 R. Doc. 47.
3 R. Doc. 147.
4 R. Doc. 171.
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imposed as to each Counts Two and Four, to be served concurrently to one another; and 60 months
were imposed as to Count Three, to be served consecutively to the terms imposed as to counts two
and four.5 Mr. Theodore now asks the Court to “dismiss the indictment pursuant [to] 18 U.S.C. §
922(g) as unconstitutional” and to “vacate the 60 month sentence (Count 4) applied consecutively
to the terms imposed on Counts Two and Four.”6 Mr. Theodore’s motion goes on to state that he
is asking the Court to vacate the consecutive 60-month sentence for the Section 922(g) conviction
and to be re-sentenced to 120 months total.7
II. 	DISCUSSION
To the extent Mr. Theodore asks the Court to “dismiss the indictment” against him, this
motion is untimely and shall be denied on that basis. Under Federal Rule of Criminal Procedure
12, a motion to dismiss an indictment generally must be made before trial or at least while the case
is pending.8 Here, Mr. Theodore has already pled guilty to the crimes charged in the indictment,
was sentenced accordingly, and the time to file any direct appeal has passed.9 Accordingly, Mr.
Theodore’s motion to dismiss the indictment must be denied.10
The Court is cognizant, however, that Mr. Theodore is representing himself and has no
formal legal training. Upon review of his motion, it appears that what Mr. Theodore is actually
seeking is for the Court to vacate the sentence imposed as to Count Four (the 18 U.S.C. § 922(g)
violation) on the basis that the sentence was imposed in violation of his constitutional rights. Such
relief is governed by 28 U.S.C. § 2255. 	Indeed, under § 2255(a), a “prisoner in custody under
5 R. Doc. 171.
6 R. Doc. 179.
7 R. Doc. 179 at 4.
8 United States v. Cathey, 591 F.2d 268, 271, n.1 (5th Cir. 1979); United States v. Reed, 32 F. App’x 127 (5th Cir.
2002).
9 As for the counts to which Mr. Theodore did not plead guilty, the Court dismissed those counts at the sentencing
hearing on the Government’s motion to do so. See R. Doc. 171 at 1.
10 See Skinner v. United States, No. 02-93, 2022 WL 16639995 (S.D. Miss. Nov. 2, 2022).
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sentence of a [federal] court . . . claiming the right to be released upon the ground that the sentence
was imposed in violation of the constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence,” may move the sentencing court to vacate, set aside,
or correct the sentence. But a prisoner in federal custody is permitted to file only one § 2255 motion
without restriction.11 If the § 2255 motion is denied and the petitioner wishes to file a second or
successive § 2255 motion in the future, he can only do so if his motion is certified by the court of
appeals, and such certification is only granted if the second or successive motion is based on newly
discovered evidence or a new, retroactive rule of constitutional law, as set forth in 28 U.S.C.
§ 2255(h). This Court therefore declines to construe Mr. Theodore’s current motion to dismiss
indictment as a § 2255 motion, because to do so could subject him to the restriction on “second or
successive” motions in the future, and it is not clear to the Court that Mr. Theodore has asserted
all potential § 2255 claims he believes he may have at this time. If Mr. Theodore does, in fact,
wish to seek relief under § 2255, any future motion should clearly state such.
The Court separately notes that Mr. Theodore appears to have the mistaken understanding
that the 60-month term of imprisonment was imposed as to the crime charged in Count Four—that
is, felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). But, as set forth in the
Judgment, the 60-month consecutive term of imprisonment was imposed as to Count Three—that
is, possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A)(i).12 The Judgment states: “The defendant is hereby committed to the custody of the
Federal Bureau of Prisons to be imprisoned for a total term of: 180 months. This term consists of
120 months as to each of Counts Two and Four, to be served concurrently, and a term of
60 months as to Count Three, to be served consecutively to the terms imposed on Counts Two
11 See United States v. Woodruff, No. 14-168, 2023 WL 2683225, at *1 (E.D. La. Mar. 29, 2023).
12 See R. Doc. 171 at 4.
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and Four.”13 Thus, even if the Court were to grant Mr. Theodore the relief he seeks and vacate his
sentence for the § 922(g) charge (Count Four), Mr. Theodore’s total term of imprisonment would
still be 180 months because he would still have to serve the 120-month term of imprisonment for
Count Two, followed by the 60-month term of imprisonment for Count Three.
III. 	CONCLUSION
To the extent Mr. Theodore seeks the dismissal of the indictment filed against him, this
request is untimely and futile. To the extent Mr. Theodore seeks to have the sentence imposed as
to Count Four vacated on the basis that it was imposed in violation of his constitutional rights, a
motion to dismiss indictment is not the proper method to obtain such relief, and the Court declines
to construe Mr. Theodore’s motion to dismiss indictment as a § 2255 motion for the reasons
explained herein. Accordingly,
IT IS ORDERED that Defendant Marcus Theodore’s Motion to Dismiss Indictment (R.
Doc. 173) is DENIED.
New Orleans, Louisiana, this 12th day of November 2025.
__________________________________________
DARREL JAMES PAPILLION
UNITED STATES DISTRICT JUDGE
13 R. Doc. 171 at 4 (emphasis added).
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