United States v. Mark Banes , 691 F. App'x 300 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3396
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mark Allen Banes
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: June 5, 2017
Filed: June 26, 2017
[Unpublished]
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Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
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PER CURIAM.
After revoking Mark Allen Banes’s term of supervised release in August 2016,
the district court1 sentenced him to 18 months’ imprisonment and 5 years’ supervised
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
release. Banes appeals, arguing that the district court violated the holding in Tapia
v. United States, 564 U.S. 319, 335 (2011), which says that a court “may not impose
or lengthen a prison sentence to enable an offender to complete a treatment program
or otherwise to promote rehabilitation.”
Banes pleaded guilty to failing to register as a sex offender, as required by the
Sex Offender Registration and Notification Act. See 18 U.S.C. § 2250. He was
sentenced to 60 months of probation in August 2011. The district court revoked
Banes’s probation in September 2015, following Banes’s unapproved contact with
minors and his viewing pornography. The court imposed a sentence of time served
and 5 years’ supervised release. Banes almost immediately violated certain GPS
monitoring procedures and failed to answer truthfully to the probation office. The
district court revoked Banes’s term of supervised release and sentenced Banes to 6
months’ imprisonment and 5 years’ supervised release.
Banes violated the conditions of his supervised release again in 2016. He
admitted to the following violations: lying to a probation officer, using the Internet
and having an unauthorized electronic device, having unapproved contact with
minors, failing to comply with the rules of the Iowa sex offender registry, and
associating with a known felon. Banes’s advisory sentencing range under § 7B1.4(a)
of the United States Sentencing Guidelines was 12 to 18 months’ imprisonment. As
set forth above, the district court imposed an 18-month term of imprisonment and a
5-year term of supervised release.
Banes argued during the revocation hearing that any further imprisonment or
supervised release would not serve to rehabilitate him and asked that he be sentenced
at most to one year of supervised release. The government sought a term of
imprisonment at “the high end of the guideline range” and 5 years of supervised
release, arguing that Banes posed a threat to the community and that his repeated
violations of the conditions of his release were flagrant.
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After finding that Banes had violated five conditions of supervised release, the
district court stated:
The court is concerned about the safety of the community as well as the
repetitious violations that the defendant has engaged in. I think the
defendant needs to be punished for his violations of supervised release.
I think he’s also in need of additional educational and medical treatment
that 3553(a) talks about.
In response to Banes’s Tapia-based objection, the district court set forth its
understanding that Tapia forbade it from imprisoning Banes “because of his need for
rehabilitation,” but that 18 U.S.C. § 3553(a) permitted the court to “take into account
his need for that.” After considering Banes’s further comment, the court ultimately
concluded, “I’m not incarcerating him because of the Tapia matter. I think he needs
to be punished, and I think he’s a threat to the community, and that’s the reason for
the incarceration. I think while he’s incarcerated he may well get his needs taken care
of.”
When read in the fullness of its context, the district court’s explanation belies
Banes’s contention that the court lengthened Banes’s term of imprisonment in order
to enable Banes to complete a treatment program or otherwise promote his
rehabilitation. See United States v. Holdsworth, 830 F.3d 779, 784-85 (8th Cir. 2016)
(reviewing for plain error, considering the context in which the disputed statements
were made, and concluding that any comments about treatment did not indicate that
the court imposed a lengthier term of imprisonment in order to foster the defendant’s
rehabilitation); United States v. Replogle, 678 F.3d 940, 943 (8th Cir. 2012) (same);
United States v. Werlien, 664 F.3d 1143, 1147 (8th Cir. 2011) (per curiam) (same);
United States v. Blackmon, 662 F.3d 981, 987 (8th Cir. 2011) (same).
The judgment is affirmed.
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