United States v. Tyson Marshek

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Michael J. Melloy and Bobby E. Shepherd (UNPUBLISHED) [4089712] [13-1962]

United States Court of Appeals
For the Eighth Circuit
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No. 13-1962
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Tyson Marshek
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: September 23, 2013
Filed: October 28, 2013
[Unpublished]
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Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Tyson Marshek appeals the district court’s1 imposition of a 14-month sentence
resulting from the second revocation of Marshek’s supervised release. Marshek
1

The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.

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contends the district court failed to adequately consider Chapter 7 of the Sentencing
Guidelines and the factors under 18 U.S.C. § 3553(a) and thus imposed an
unreasonable sentence. We affirm.
In 2003, the United States District Court for the Southern District of Georgia
sentenced Marshek to 72 months imprisonment and 3 years of supervised release for
a bank robbery conviction. Jurisdiction over Marshek was transferred to the United
States District Court for the Southern District of Iowa. On July 2, 2008, Marshek
began serving supervised release, but, only two months later, an arrest warrant was
issued for Marshek based on the allegation that he had left the district without
permission of the court or probation officer. Two years later, Marshek was located
in California and arrested. The district court revoked Marshek’s supervised release
and sentenced him to 8 months imprisonment to be followed by 28 months of
supervised release.
Marshek served his additional imprisonment time and was again placed on
supervised release. Within two months of the commencement of his supervised
release, another arrest warrant was issued for him alleging, among other things, that
he again left the district without permission. A year later, Marshek was located in
Virginia and arrested. The district court again revoked Marshek’s supervised release,
sentenced him to 14 months imprisonment, and decided that no term of supervised
release would follow.
During the revocation hearing, Marshek and his counsel discussed Marshek’s
health issues including symptoms of Multiple Sclerosis and liver difficulties. After
recognizing that it had considered “each of the factors found in Title 18, United States
Code, Section 3553(a), as well as the Sentencing Guidelines Chapter 7 Policy
Statements,” (Tr. 6), the district court imposed the 14-month sentence with no term
of supervised release. The court noted this sentence was “sufficient, but not greater
than necessary, to address the essential sentencing considerations.” (Tr. 13.)
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Marshek appeals his sentence, arguing the district court committed procedural
error in failing to consider the Chapter 7 policy statements and the section 3553(a)
factors, and this procedural error resulted in a substantively unreasonable sentence.
We review a revocation sentence under the same “deferential
abuse-of-discretion” standard we apply to initial sentencing proceedings, considering
“both the procedural soundness of the district court’s decision and the substantive
reasonableness of the sentence imposed.” United States v. Thunder, 553 F.3d 605,
607 (8th Cir. 2009) (quotation omitted). Because Marshek failed to raise his
procedural objections at sentencing, we review any claim of procedural error for plain
error only. Fed. R. Crim. P. 52(b); see also United States v. Townsend, 618 F.3d 915,
918 (8th Cir. 2010), cert. denied, 131 S. Ct. 1515 (2011). To succeed under plainerror review, Marshek “must show: (1) an error; (2) that is plain; and (3) that affects
substantial rights.” Townsend, 618 F.3d at 918 (quotation omitted). “An error affects
substantial rights if there is a ‘reasonable probability’ that in its absence a more
favorable sentence would have been imposed.” United States v. Means, 365 F. App’x
720, 722 (8th Cir. 2010) (unpublished per curiam) (citing United States v. Pirani, 406
F.3d 543, 552 (8th Cir. 2005)).
Marshek cannot show that the district court committed a procedural error when
it sentenced him to 14 months imprisonment. The court noted that, before deciding
on a sentence, it had considered both the Chapter Seven policy statements and the
section 3553(a) sentencing factors. A detailed listing and discussion of each element
of Chapter Seven or each factor of section 3553(a) is not required, particularly when
the defendant does not object at sentencing to the adequacy of the court’s
explanation. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
banc). Accordingly, we reject Marshek’s claim of procedural error.
Moreover, we reject Marshek’s claim that his above-Guidelines sentence is
substantively unreasonable. While a district court must calculate the suggested range,
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it is not bound to impose a sentence within that range. The Chapter Seven guidelines
suggested a post-revocation sentencing range for Marshek of three to nine months
based on the Grade C violation for leaving the district without permission. United
States Sentencing Commission, Guidelines Manual, §§ 7B1.1(a)(3); 7B1.4(a).
Though Marshek’s sentence was longer than the post-revocation sentence suggested
under Chapter 7, “[w]e have long recognized the purely advisory nature of the
Chapter 7 policy statements.” United States v. Larison, 432 F.3d 921, 922 (8th Cir.
2006). We have consistently found that a defendant’s repeated violations of
supervised release can justify a post-revocation sentence well above that suggested
by the Chapter 7 policy statements. See, e.g., Larison, 432 F.3d at 922-24; United
States v. Cotton, 399 F.3d 913, 916-17 (8th Cir. 2005) (affirming a 46-month
sentence for repeated violations where the advisory range was 7 to 13 months).
Considering Marshek’s history of violating the terms of supervised release, it was not
unreasonable for the court to impose a longer sentence with no supervised release.
Accordingly, the district court did not abuse its considerable discretion in imposing
the 14-month sentence.
We affirm.
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