United States v. DeMarcus George ( 2024 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-3312
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
DeMarcus George, also known as Daddy
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: October 16, 2023
Filed: April 4, 2024
[Unpublished]
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Before SMITH, Chief Judge,1 LOKEN and COLLOTON,2 Circuit Judges.
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PER CURIAM.
1
Judge Smith completed his term as chief judge of the circuit on March 10,
2024. See 28 U.S.C. § 45(a)(3)(A).
2
Judge Colloton became chief judge of the circuit on March 11, 2024. See 28
U.S.C. § 45(a)(1).
DeMarcus George pleaded guilty to conspiracy to commit sex trafficking of a
minor, in violation of 18 U.S.C. § 1594(c), and was sentenced to life imprisonment
and a lifetime of supervised release. On appeal, George argues that his life sentence
is substantively unreasonable. He also argues that the written judgment impermissibly
varies from the district court’s oral pronouncement at sentencing because the written
judgment includes standard conditions of supervised release not announced at
sentencing. We affirm George’s sentence of life imprisonment but vacate that portion
of the judgment imposing the standard conditions of supervised release and remand
to the district court for a resentencing, limited to consideration of the standard
conditions of supervised release.
I. Background
On an unspecified date between September 2017 and February 2018, George
picked up C.T., the six-year-old daughter of his girlfriend, from the home of C.T.’s
babysitter and took her to an unknown location. Upon her return to the babysitter’s
home, C.T. experienced vaginal itching. The babysitter observed that C.T. had bumps
on her vagina and needed medical attention. The babysitter “asked C.T. if anyone was
bothering her down there. C.T. stated, ‘my daddy.’” Presentence Investigation Report
(PSR), at ¶ 11. C.T. called George “her ‘daddy.’” Id. The babysitter contacted C.T.’s
mother, who replied she would take C.T. to a doctor.
On February 13, 2018, C.T.’s mother took her to Arkansas Children’s Hospital
(ACH) due to vaginal discharge. C.T. tested positive for gonorrhea and human
immunodeficiency virus (HIV). ACH doctors opined that C.T. became infected with
the sexually transmitted diseases between November 2017 and February 2018. At that
time, George was the boyfriend of C.T.’s mother. On June 19, 2018, C.T. reported to
ACH with complaints of a fever and progressive rash. C.T. tested positive for
chlamydia and syphilis. Doctors informed law enforcement that it was unlikely that
a single individual infected C.T.
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An investigation revealed that “George had consistent, uninterrupted contact
with C.T. . . . from September 2017 to June 2018.” PSR, at ¶ 13. Blood testing
performed on samples from George that were seized pursuant to a warrant determined
that George was positive for HIV. George disclosed to authorities that C.T.’s mother
prostituted C.T. with his assistance and that he received payment for his help.
In an interview with law enforcement, C.T. stated that George would put his
penis in her vagina, anus, and mouth. According to C.T., George advised her to keep
silent. During a second interview, C.T. recounted that when she was at a hotel with
George while her mother was at work, George would call Mario Waters, who would
come to their hotel room. Upon Waters’s arrival, George would leave. In George’s
absence, Waters would close the curtains and make C.T. remove her clothing. He
would then put his penis in C.T.’s mouth and vagina. C.T. said that Waters would
sometimes give George money. She described an occasion when George returned to
the hotel room, held a gun to her head, and told her that he would kill her if she ever
told anyone. Waters’s blood and urine samples tested positive for gonorrhea and
chlamydia.
The grand jury returned an indictment charging George and Waters with
conspiracy to commit sex trafficking of a minor, in violation of 18 U.S.C. § 1594(c),
and sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a)(1) and (c).
Thereafter, George waived indictment and was charged by superseding information
with conspiracy to commit sex trafficking of a minor, in violation of 18 U.S.C.
§ 1594(c). George pleaded guilty pursuant to a plea agreement to the charge in the
superseding information. In the plea agreement, the parties stipulated to George’s
base offense level and enhancements, as well as an anticipated Guidelines range of
210 to 262 months’ imprisonment. The plea agreement expressly provided, “The
parties understand that the Court is not bound by these stipulations.” R. Doc. 95, at
5. The PSR prepared prior to sentencing noted that, absent the plea agreement,
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George’s “Guideline sentencing range may have been 360 months to life.” PSR, at
¶ 69.
During an in-camera hearing held just before sentencing, the government
informed the district court that the parties had agreed to recommend a sentence within
the anticipated Guidelines range of 210 to 262 months’ imprisonment. The
government agreed to the recommendation because of George’s cooperation in
providing information and grand jury testimony about C.T.’s mother’s involvement
in the sex trafficking of C.T. George had also agreed to testify against C.T.’s mother
at her trial, if necessary. The district court, however, disclosed its intent to sentence
George to life imprisonment, stating:
I plan to give Mr. George life in prison. And if you want to stand down
and wait, I will wait and see if there’s a trial on [C.T.’s mother] because
she’s pimping her daughter out, and if there is one, then I’ll consider it.
I am not going to sentence this man to 21 years or whatever it is before
that woman is convicted and put away for life.
R. Doc. 117, at 3. The district court explained that although it appreciated George’s
cooperation, this was “one of the circumstances where the line is drawn in the sand.”
Id. According to the court, George could not “rape a 6-year-old girl and walk out of
[the] courtroom thinking [he was] going to ever breathe the light of day unless . . . the
mother is considered more culpable and is convicted and put away for a long time.”
Id. at 3–4. The district court instructed the parties to decide what they “want[ed] to
do” but warned, “[I]f we proceed today, I don’t give a damn about that [plea]
agreement.” Id. at 4. Despite the court’s warning, the parties elected to proceed with
sentencing.
At sentencing, the district court adopted the PSR after the parties lodged no
objections. The district court calculated a Guidelines range of 235 to 293 months’
imprisonment. George argued for a sentence within the parties’ recommended
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sentencing range of 210 to 262 months’ imprisonment. The government requested a
sentence of 262 months’ imprisonment. The district court sentenced George to an
above-Guidelines sentence of life imprisonment. In imposing the sentence, the court
noted that George “had sex with a 6-year-old girl who was in his care repeatedly and
gave her HIV. What life did he give to her?” R. Doc. 116, at 9. The court concluded
it was “well within [its] discretion” to impose “the maximum allowed by law, which
is life imprisonment,” “given the seriousness of the offense, the nature and
circumstances of the offense of pimping and having sex with a 6-year-old baby and
giving her HIV.” Id.In the event that George was “ever let out for any reason at all,” the court
ordered a lifetime of supervised release. Id. at 10. The court inquired whether the
parties would like it to “go through the conditions of supervised release,” to which
the government responded that the court “probably should.” Id. The court then stated:
I will order him to participate in sex offender treatment, which may
include—well, the probation office will set the terms of that treatment.
He’ll also have to pay the 10-dollar co-pay for that. I am going to order
him to mental health counseling as a condition of his supervision. He’ll
have to pay—what will happen, Mr. George, is a counselor will assess
you and then will give you the treatment that you need and you’ll have
to pay a 10-dollar co-pay for that. As far as all the computer monitoring
and all that, I am not going to assess all that. I’m going to order that
probation provide the state of Arkansas with any information it needs to
list Mr. George under the sex predator statutes and sex offender statutes
and notification statutes.
I’m going to order that Mr. George not possess any visual
depictions, including photographs, film, video or other types of
computer-generated images of any sexual acts. I’m going to order that
Mr. George not be permitted to enter any type of adult book stores, strip
clubs, adult sex-themed entertainment. I’m going to order that he not
have any direct contact with any children under the age of 18, that he not
go to or remain in any place where he knows that children under the age
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of 18 are present including parks, schools, playgrounds, and childcare
facilities.
I’m going to order him to participate in a substance abuse
treatment program. I might have said that, but just to make sure. May
include drug and alcohol testing, outpatient counseling, and residential
treatment. I’m going to order him to abstain from the use of alcohol
during the course of treatment. He’ll have to pay the co-pay of $10 per
session, and all of those co-pays are based on your ability to pay. I’m
also going to order him to pay the 100-dollar special assessment. I’m not
going to impose a fine and I am going to order him to cooperate in the
collection of DNA. I think that’s all the conditions I have.
Id. at 10–11. The court also ordered that George have no contact with C.T.
Defense counsel objected to imposition of a life sentence as “outside the
advisory sentencing guideline range” and because of “the potential difficulties it will
cause in other cases, not this case, but in the future.” Id. at 12. The district court also
noted that the sentence exceeded the Guidelines range and indicated that an objection
on that additional issue would be preserved. Id. The district court overruled these
objections.3
Thereafter, a written judgment was entered that included 13 standard
conditions of supervised release not included in the district court’s oral
pronouncement of the sentence.
II. Discussion
On appeal, George argues that his life sentence is substantively unreasonable.
He also argues that the written judgment impermissibly varies from the district court’s
3
After George’s sentencing, the district court also imposed a sentence of life
imprisonment as to co-defendant Waters.
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oral pronouncement at sentencing because the written judgment includes standard
conditions of supervised release.
A. Substantive Reasonableness
George challenges only the substantive reasonableness of his sentence. See
United States v. O’Connor, 567 F.3d 395, 397 (8th Cir. 2009) (bypassing review for
procedural error when the defendant raised only a substantive-reasonableness
challenge). He argues that the district court abused its discretion in varying upward
and sentencing him to life imprisonment because the district court “gave significant
weight to improper factors and failed to give proper weight to [his] cooperation in its
sentencing analysis.” Appellant’s Br. at 8. Specifically, George argues that “the
district court sentenced [him] to life imprisonment because [C.T.’s mother] had yet
to be convicted, deemed more culpable, and sentenced to life imprisonment. Those
facts, however, were not relevant to the [18 U.S.C.] § 3553(a) factors—which must
be applied to the ‘individual defendant’ being sentenced.” Id. at 12. George asserts
that “the district court’s consideration of those irrelevant factors caused it to give no
weight to [his] cooperation with the government.” Id.
We review the substantive reasonableness of a sentence for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). “A district court abuses its
discretion when it (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. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)
(en banc) (internal quotation marks omitted). A district court is not required to
mechanically recite the § 3553(a) factors; instead, “it simply must be clear from the
record that the district court actually considered the § 3553(a) factors in determining
the sentence.” Id. (internal quotation marks omitted).
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Having reviewed the record, we hold that the above-Guidelines sentence of life
imprisonment is not substantively unreasonable. First, as the plea agreement makes
clear, the district court was not bound by the Guidelines range set forth in the plea
agreement. See Fed. R. Crim. P. 11(c)(1)(B) (“[T]he plea agreement may specify that
an attorney for the government will . . . recommend . . . that a particular
. . . sentencing range is appropriate . . . (such a recommendation or request does not
bind the court)”).
Second, the district court’s “comments show that the court considered relevant
§ 3553(a) factors, such as the seriousness of the offense.” United States v. Zayas, 758
F.3d 986, 990 (8th Cir. 2014). In imposing George’s sentence, the court focused not
on the pending prosecution of C.T.’s mother but instead on George’s own offense
conduct. The court expressly stated that it was exercising its discretion to impose a
life sentence on George “given the seriousness of the offense, the nature and
circumstances of the offense of pimping and having sex with a 6-year-old baby and
giving her HIV.” R. Doc. 116, at 9. Although the district court did not expressly
discuss George’s cooperation with the government in prosecuting C.T.’s mother, the
record shows that it was aware of the cooperation. The court heard arguments from
the parties referencing the plea agreement and recommending a sentence in
accordance with that plea agreement. During the in-camera hearing, the district court
learned that the sentencing-range recommendation was driven by George’s
cooperation with the prosecution of C.T.’s mother but advised that this was “one of
the circumstances where the line is drawn in the sand.” R. Doc. 117, at 3. In other
words, George’s cooperation could not mitigate the seriousness of the offense. See
United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006) (“Although [the district
court] had the power, as long as the sentence imposed was reasonable, to reduce [the
defendant’s] sentence in light of ‘non–5K cooperation’ under 18 U.S.C. § 3553(a),
[the court] was under no obligation to provide any such benefit.”), abrogated on other
grounds by Rita v. United States, 551 U.S. 338 (2007).
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Finally, although the sentence is an above-Guidelines sentence, “[v]ery long
prison sentences for particularly abhorrent conduct have been repeatedly upheld.”
United States v. Demeyer, 665 F.3d 1374, 1375 (8th Cir. 2012) (per curiam); see also
United States v. Davenport, 910 F.3d 1076, 1083 (8th Cir. 2018) (affirming an
840-month sentence for a defendant convicted of sexual exploitation of a child and
child-pornography offenses); United States v. Spiotto, 745 F. App’x 667, 669 (8th
Cir. 2018) (unpublished per curiam) (affirming statutory maximum sentence of 720
months, “effectively a life sentence,” based on the seriousness of defendant’s crimes,
where she sexually abused a three-month-old and 11-month-old and allowed one
victim to remain with a co-defendant so he could rape her); United States v.
Raplinger, 555 F.3d 687, 695 (8th Cir. 2009) (affirming sentence of 457 months and
10 days’ imprisonment, “essentially equivalent to a life sentence,” for sexual
exploitation of a child, distribution of child pornography, and possession of child
pornography with a 15-year-old victim); United States v. Betcher, 534 F.3d 820,
827–28 (8th Cir. 2008) (affirming a 750-year sentence for a defendant who “took
numerous pornographic and erotic pictures of his two young granddaughters and their
three girlfriends”).
B. Written Judgment
George also argues that the written judgment includes 13 standard conditions
of supervised release as listed in U.S.S.G. § 5D1.3(c) that were not orally pronounced
at his sentencing. As a result, he argues that the written judgment conflicts with the
oral sentence and altered his sentence in violation of the Double Jeopardy Clause.
“[T]he sentence imposed—the sentence defining the requirements [the
defendant] must satisfy while on supervised release and which our court actually
reviews—is the sentence pronounced orally in court rather than on the later written
form.” United States v. Walker, 80 F.4th 880, 882 (8th Cir. 2023) (citing United
States v. Foster, 514 F.3d 821, 825 (8th Cir. 2008) (“Where an oral sentence and the
written judgment conflict, the oral sentence controls.” (quoting United States v.
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Glass, 720 F.2d 21, 22 n.2 (8th Cir. 1983)))). A district court’s oral pronouncement
of a defendant’s “sentence affords the defendant an opportunity to object, raise
concerns and challenges as to the sentence, and seek tailored conditions of supervised
release limited to what is ‘reasonably necessary’ to meet sentencing objectives.” Id.(quoting 18 U.S.C. § 3583(d)(2)).
Recently, we held that a district court’s failure to orally advise a defendant at
sentencing that the standard conditions of supervised release were being imposed
required vacatur of that portion of the written judgment and commitment order
imposing those standard conditions. Id. at 882–83. Our disposition did not foreclose
any specific release conditions. Instead, we “remand[ed] to the district court for a
resentencing, limited to the standard conditions and [a] third special condition” not
included in the oral pronouncement. Id. at 882. We “ha[d] no doubt that the failure
to specifically address the standard conditions of supervised release and the third
special condition which relate[d] to the two special conditions that were orally
pronounced was a matter of mere oversight.” Id. This was because “it would be
virtually impossible to supervise a defendant or verify compliance with the two
special conditions that were orally pronounced without at least some of the standard
conditions of supervised release being imposed.” Id. On remand, we directed the
district court to “determine in the first instance whether any standard conditions of
supervised release, as well as the third special condition, are consistent with and
necessarily included within the scope of the express conditions as pronounced at the
initial sentencing.” Id. At resentencing, the defendant could “object to any of the
conditions that he fe[lt] should not be imposed upon him.” Id. We advised that “[a]ny
standard conditions of supervised release or the third special condition which may be
reimposed as part of any oral pronouncement may then be incorporated into an
amended and reconciled judgment and commitment order.” Id. at 882–83.
Walker is substantially similar to the present case. Like the court in Walker, the
district court enumerated certain special conditions of supervised release but did not
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orally recite the standard conditions of supervised release. As we explained in
Walker, it would be difficult for probation officers to enforce these special conditions
without the standard conditions in place. See id. As a result, we vacate that portion
of the judgment and commitment order imposing the 13 standard conditions of
supervised release and remand to the district court for resentencing, limited to these
standard conditions. Id. The district court must follow the same directive given to the
district court in Walker in considering “whether any standard conditions of supervised
release . . . are consistent with and necessarily included within the scope of the
express conditions as pronounced at the initial sentencing.” Id. at 882.
III. Conclusion
Accordingly, we affirm George’s sentence of life imprisonment but vacate that
portion of the judgment imposing the standard conditions of supervised release and
remand to the district court for a resentencing, limited to consideration of the standard
conditions of supervised release.
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