United States v. Marcus Clarke

Filing

PER CURIAM OPINION FILED - THE COURT: Lavenski R. Smith, Michael J. Melloy and Raymond W. Gruender (PUBLISHED) [4434383] [15-3730]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3730
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Marcus S. Clarke
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: June 13, 2016
Filed: August 5, 2016
[Published]
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Before SMITH, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.

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Marcus Clarke appeals his sentence of 360 months in prison for the production
and attempted production of child pornography, alleging that the district
court1imposed an unreasonable sentence. We affirm.
I. Background
Clarke became the subject of a Prairie Village (Kansas) Police Department
investigation after a woman reported finding a text conversation between Clarke and
her fifteen-year-old daughter (Victim 1) on her cell phone. Clarke and Victim 1
exchanged text messages about arranging a photo shoot. Following an initial photo
shoot, Clarke continued to message Victim 1 to schedule additional photo shoots.
Victim 1 told officers that, following the text conversation, Clarke picked her
up at a park in Kansas and drove her to his apartment in Missouri. Clarke took nude
digital photos and videos of Victim 1. During one of the video recordings, Clarke
rubbed his penis on Victim 1’s vagina. Victim 1 was able to identify a photo of
Clarke and the location of his apartment. Officers arrested Clarke and found
additional sexually explicit photos and videos of young girls.
Officers also learned that Clarke had physically abused his biological daughter
(Victim 2). Victim 2 told officers that, when she was eleven years old, Clarke began
taking photos of her undressing and videos of him sexually abusing her. Officers
found three videos of Victim 2 recorded when she was thirteen years old. In addition,
Clarke’s ex-girlfriend had reported sexual abuse against Victim 2 several years earlier,
but investigators did not find sufficient evidence to bring charges at that time.

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The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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Following the current investigation, Clarke was indicted on one count of
production of child pornography and one count of attempted production of child
pornography, in violation of 18 U.S.C. § 2251(a) and (e). Clarke pleaded guilty to
both counts. The Presentence Investigation Report (“PSR”) recommended that, based
on a total offense level of 42 and criminal history category I, Clarke’s advisory
guideline range was 360 months to life in prison. Clarke was also subject to a fifteenyear mandatory minimum.
At sentencing, Clarke argued to the district court that he should receive a
below-guidelines sentence of fifteen years because of his lack of criminal history, his
mental condition, his lack of illegal drug use, and his employment. The district court
determined that a sentence of 360 months in prison was appropriate. Specifically, the
district court noted that Clarke victimized two girls, including his biological daughter
and that the § 3553(a) factors supported the sentence. Clarke appeals.
II. Discussion
On appeal, Clarke argues that the sentence is substantively unreasonable. We
review the substantive reasonableness of a sentence “under a deferential abuse-ofdiscretion standard.” United States v. Webster, 820 F.3d 944, 945 (8th Cir. 2016).
A sentence is substantively unreasonable when the district court: “(1) fails to consider
a relevant factor that should have received significant weight; (2) gives significant
weight to an improper or irrelevant factor; or (3) considers only the appropriate factors
but in weighing those factors commits a clear error of judgment.” United States v.
Sigsbury, 817 F.3d 1114, 1115 (8th Cir. 2016) (quoting United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc)). Further, “[i]f the defendant’s sentence
is within the Guidelines range, then we may . . . apply a presumption of
reasonableness.” Id. (quoting Feemster, 572 F.3d at 461).

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Clarke argues that the district court imposed an unreasonable sentence that was
greater than necessary to satisfy the statutory goals of sentencing. In particular,
Clarke contends that the district court gave undue weight to the fact that Victim 2 was
Clarke’s biological daughter. Further, he argues that the district court did not consider
Clarke’s lack of criminal history, his strong employment history, or his mental
difficulties as mitigating factors.
Having reviewed the record, we conclude the sentenced imposed by the district
court was substantively reasonable. First, Clarke was sentenced within the advisory
guidelines range of 360 months to life in prison. Second, the district court specifically
noted that it had considered the § 3553(a) factors in determining Clarke’s sentence.
“A district court has substantial leeway in deciding how to weigh the § 3553(a)
factors.” United States v. Sholds, — F.3d ----, 2016 WL 3568058 (8th Cir. July 1,
2016). In this case, Clarke created sexually explicit photos and videos of two young
girls. The fact that Clarke has a record of steady employment and no criminal history
does not render his sentence unreasonable. Further, a medical evaluation performed
in advance of sentencing characterized Clarke’s alleged mental difficulties as
malingering. As such, it was reasonable for the district court to assign little weight
to this mitigating factor. The district court did not commit clear error in weighing
these factors.
III. Conclusion
Based on the foregoing analysis, we conclude that the district court did not
abuse its discretion by imposing a sentence of 360 months in prison. The judgment
of the district court is affirmed.
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