United States v. Thomas DeMarrias ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3479
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United States of America
Plaintiff - Appellee
v.
Thomas Dion DeMarrias
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Aberdeen
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Submitted: September 21, 2020
Filed: November 4, 2020
[Unpublished]
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Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
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PER CURIAM.
Thomas DeMarrias, an enrolled member of the Sisseton-Wahpeton Sioux
Tribe, pled guilty to one count of abusive sexual contact in violation of 18 U.S.C.
§§ 1153, 2244(a)(1), and 2246(3) and one count of felony child abuse in violation of
18 U.S.C. § 1153 and S.D. CODIFIED LAWS §§ 26-8A-2 and 26-10-1. At sentencing,
the district court1 imposed a term of 120 months’ imprisonment on each count and
ordered that the sentences run consecutively. DeMarrias appeals his sentence
asserting that the sentence is the result of a procedurally flawed analysis and is
substantively unreasonable. We find no procedural error and determine that the
sentence is not substantively unreasonable. We affirm.
I. Background
Before addressing the facts, we resolve DeMarrias’s contention that the district
court improperly considered facts that were never admitted to or proven. This
contention fails for two reasons. First, having raised it for the first time in his reply
brief, he has waived it. See United States v. Benson, 888 F.3d 1017, 1020 (8th Cir.
2018) (court will not consider issues raised for the first time in reply brief unless
appellant gives some reason for failing to raise and brief the issue in his opening
brief). More importantly, even if the issue had been properly raised, it is without
merit because DeMarrias did not object to the facts contained in the Presentence
Investigation Report, therefore, the court was free to rely upon them. United States
v. Brooks, 648 F.3d 626, 630 (8th Cir. 2011).
The facts underlying DeMarrias’s guilty pleas for abusive sexual contact and
felony child abuse are horrific. Over a period of approximately four years, DeMarrias
psychologically, sexually, and physically abused his two minor stepdaughters. The
abuse of the girls began when they were just four- and eight-years old. DeMarrias
was also physically abusive towards his wife and stepson. One of the children
reported that the physical abuse occurred on average four times a day five days a
week. DeMarrias forced the three children “to sign contracts to govern what he could
do if they got into trouble.” For example, under the contracts, DeMarrias could
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
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require a child who got into trouble to pick one of their siblings to receive a beating.
If the child was unwilling or emotionally unable to pick a sibling to be beaten,
DeMarrias would beat all three children. Occasionally DeMarrias would beat the
children’s mother for the actions of the children.
At sentencing, the court was particularly moved by the offense conduct, noting
that in nearly twenty-five years on the bench, including significant experience with
Native-American sex-abuse cases, “[t]his case [was] just about as bad as any [it had]
seen.” The court opined that it would not have hesitated to impose a life sentence in
light of DeMarrias’s conduct, but due to the plea agreement, it was bound by the 120-
month statutory maximum on each count. The Guidelines range for the abusive-
sexual-contact conviction would have been 360 months to life, but was capped at the
120-month statutory maximum. The child-abuse conviction does not have a
Guidelines range, as no specific guideline has been promulgated for that offense and
there is not a sufficiently analogous offense under the Guidelines. See U.S.
Sentencing Guidelines Manual § 2X5.1 (2018). Accordingly, the district court simply
had to fashion a sentence for the child-abuse conviction based on the 18 U.S.C.
§ 3553(a) factors. Id. The district court imposed the 120-month statutory maximum
on both counts and ordered that the two sentences run consecutively. DeMarrias now
appeals, arguing that the district court erred in imposing consecutive sentences and
that the 120-month sentence for felony child abuse is substantively unreasonable.
II. Discussion
Our review of a criminal sentence generally proceeds in two stages. First, we
review the sentence for “significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” Gall v. United States, 552
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U.S. 38, 51 (2007). Because DeMarrias failed to object to any alleged procedural
error at sentencing, we review for plain error. United States v. Smith, 795 F.3d 868,
871 (8th Cir. 2015) (per curiam). Second, we review “the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S.
at 51.
Here, the district court did not commit any procedural error. The district court
(properly) calculated the Guidelines range, treated the Guidelines as advisory, and
appropriately considered the § 3553(a) factors in imposing the two (consecutive) 120-
month sentences. The district court did not have to “specifically respond to every
argument made by the defendant, or mechanically recite each § 3553(a) factor.”
United States v. Struzik, 572 F.3d 484, 487 (8th Cir. 2009) (cleaned up). Instead, it
simply needed to “set forth enough to satisfy” this Court that it “considered the
parties’ arguments and has a reasoned basis for exercising [its] own legal
decisionmaking authority.” Id. (citations omitted). A close review of the record
reveals that the district court considered each of DeMarrias’s arguments and all of the
§ 3553(a) factors when imposing the sentences. Moreover, it expressly addressed
many of DeMarrias’s arguments.
While DeMarrias alleges that the district court failed to consider that (1) his
criminal history was overstated, (2) he has had previous success with rehabilitation
and has a new-found religious commitment, and (3) he has current rehabilitation
needs (sex-offender treatment), the district court explicitly considered each of these
factors. First, it noted that DeMarrias had a “rather high” criminal-history category,
but “that a lot of those are criminal activities in years past.” Second, it noted that it
was “not particularly impressed by” DeMarrias’s claim that he has become more
religious, as—in its experience—many defendants “find God right after they’ve been
found guilty of something.” Finally, the district court considered DeMarrias’s sex-
offender treatment needs, as it recommended to the Bureau of Prisons that DeMarrias
be placed in a facility where he could participate in a sex-offender-treatment program.
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In sum, a close review of the record reveals that the district court considered
all of DeMarrias’s arguments and all of the § 3553(a) factors when imposing the
sentences. In imposing the sentences, the district court found some § 3553(a) factors
more significant than others. The district court committed no error, plain or
otherwise, in imposing DeMarrias’s consecutive 120-month sentences.
Finally, DeMarrias asserts the sentence on the felony child-abuse conviction
is substantively unreasonable. We review the substantive reasonableness of a
sentence for an abuse of discretion. United States v. Leonard, 785 F.3d 303, 306 (8th
Cir. 2015) (per curiam). In this circuit, a district court may abuse its discretion by
failing “to consider a relevant factor that should have received significant weight,
giv[ing] significant weight to an improper or irrelevant factor, or consider[ing] only
the appropriate factors but commit[ting] a clear error of judgment in weighing those
factors.” Id. at 306–07 (quoting United States v. Luleff, 574 F.3d 566, 569 (8th Cir.
2009)).
A close review of the record reveals no evidence in support of DeMarrias’s
claim that the district court failed to consider a relevant factor that should have been
given significant weight or that the district court committed a clear error in judgment
in weighing the appropriate factors. DeMarrias simply disagrees with the significant
weight that the district court gave to his offense conduct. But “[a] district court’s
choice to assign relatively greater weight to the nature and circumstances of the
offense than to the mitigating personal characteristics of the defendant is well within
its wide latitude in weighing relevant factors.” Id. at 307 (quoting United States v.
Farmer, 647 F.3d 1175, 1180 (8th Cir. 2011)). Here, the offense conduct was
particularly heinous, and the district court therefore found it worthy of significant
weight. This is not an abuse of discretion. Imposing a consecutive 120-month
sentence on the child-abuse conviction based on DeMarrias’s conduct over a course
of years was not substantively unreasonable.
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III. Conclusion
Because the district court did not commit any procedural error, and because the
sentence is not substantively unreasonable, we affirm.
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