United States v. Daniel Marbach , 163 F. App'x 434 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3992
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of South Dakota.
*
Daniel Marbach, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 6, 2006
Filed: January 23, 2006
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Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Daniel Marbach challenges the 24-month prison sentence the district court1
imposed after he pleaded guilty to failing to pay a past-due child support obligation
in excess of $10,000, in violation of 18 U.S.C. § 228(a)(3). His counsel has moved
to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing
that Marbach’s sentence is too severe and an abuse of discretion. In his pro se
supplemental brief, Marbach raises a multitude of arguments concerning his guilty
plea and sentence, including an argument that the district court committed error under
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
United States v. Booker, 125 S. Ct. 738 (2005), and violated Marbach’s Sixth
Amendment rights.
We conclude that the sentence was not unreasonable, and therefore was not an
abuse of discretion: Marbach had a lengthy history of not making child support
payments, resulting in a significant arrearage, and he also had an extensive criminal
history. See Booker, 125 S. Ct. at 765 (sentences should be reviewed for
unreasonableness). To the extent counsel is raising an Eighth Amendment argument,
it fails. See United States v. Collins, 340 F.3d 672, 679 (8th Cir. 2003) (Eighth
Amendment forbids only extreme sentences that are grossly disproportionate to the
crime); cf. Harmelin v. Michigan, 501 U.S. 957, 961, 994-95 (1991) (state sentence
of mandatory life imprisonment without possibility of parole for possessing 672 grams
of cocaine did not violate Eighth Amendment).
The district court did not apply the Guidelines in a mandatory fashion, and thus
there was no Sixth Amendment violation. It is unclear from the sentencing transcript
to what extent the district court considered the Guidelines in sentencing Marbach, as
it was required to do. See United States v. Haack, 403 F.3d 997, 1002 (8th Cir.) (after
Booker, district court must first determine appropriate Guidelines range before
determining whether to impose non-Guidelines sentence), cert. denied, 126 S. Ct. 276
(2005). Even assuming the district court failed to consider the proper Guidelines
range, we conclude that Marbach cannot show any error affected his substantial rights,
because the district court stated that it would have given Marbach an even more severe
sentence were it not for the statutory maximum. See Fed. R. Crim. P. 52(a) (error that
does not affect substantial rights is harmless); cf. United States v. Hadash, 408 F.3d
1080, 1082 (8th Cir. 2005) (if Guidelines were incorrectly applied, remand is
unnecessary if error in application was harmless, such as when district court would
have imposed same sentence absent error).
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We reject Marbach’s remaining arguments without extended discussion
because, among other things, they are raised for the first time on appeal; they should
be raised in collateral proceedings under 28 U.S.C. § 2255; they are too vague to
address, or are foreclosed by his guilty plea; or they are plainly negated by the record.
Accordingly, we affirm, and we grant counsel’s motion to withdraw.
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