United States Court of Appeals

For the Eighth Circuit

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No. 13-1962

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Tyson Marshek

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: September 23, 2013

Filed: October 28, 2013

[Unpublished]

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Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Tyson Marshek appeals the district court’s imposition of a 14-month sentence 1

resulting from the second revocation of Marshek’s supervised release. Marshek

The Honorable John A. Jarvey, United States District Judge for the Southern 1

District of Iowa. 
contends the district court failed to adequately consider Chapter 7 of the Sentencing

Guidelines and the factors under 18 U.S.C. § 3553(a) and thus imposed an

unreasonable sentence. We affirm. 

In 2003, the United States District Court for the Southern District of Georgia

sentenced Marshek to 72 months imprisonment and 3 years of supervised release for

a bank robbery conviction. Jurisdiction over Marshek was transferred to the United

States District Court for the Southern District of Iowa. On July 2, 2008, Marshek

began serving supervised release, but, only two months later, an arrest warrant was

issued for Marshek based on the allegation that he had left the district without

permission of the court or probation officer. Two years later, Marshek was located

in California and arrested. The district court revoked Marshek’s supervised release

and sentenced him to 8 months imprisonment to be followed by 28 months of

supervised release. 

Marshek served his additional imprisonment time and was again placed on

supervised release. Within two months of the commencement of his supervised

release, another arrest warrant was issued for him alleging, among other things, that

he again left the district without permission. A year later, Marshek was located in

Virginia and arrested. The district court again revoked Marshek’s supervised release,

sentenced him to 14 months imprisonment, and decided that no term of supervised

release would follow. 

During the revocation hearing, Marshek and his counsel discussed Marshek’s

health issues including symptoms of Multiple Sclerosis and liver difficulties. After

recognizing that it had considered “each ofthe factors found in Title 18, United States

Code, Section 3553(a), as well as the Sentencing Guidelines Chapter 7 Policy

Statements,” (Tr. 6), the district court imposed the 14-month sentence with no term

of supervised release. The court noted this sentence was “sufficient, but not greater

than necessary, to address the essential sentencing considerations.” (Tr. 13.) 

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Marshek appeals his sentence, arguing the district court committed procedural

error in failing to consider the Chapter 7 policy statements and the section 3553(a)

factors, and this procedural error resulted in a substantively unreasonable sentence. 

We review a revocation sentence under the same “deferential

abuse-of-discretion” standard we apply to initial sentencing proceedings, considering

“both the procedural soundness of the district court’s decision and the substantive

reasonableness of the sentence imposed.” United States v. Thunder, 553 F.3d 605,

607 (8th Cir. 2009) (quotation omitted). Because Marshek failed to raise his

procedural objections atsentencing, we review any claimof procedural error for plain

error only. Fed. R. Crim. P. 52(b); see also United States v. Townsend, 618 F.3d 915,

918 (8th Cir. 2010), cert. denied, 131 S. Ct. 1515 (2011). To succeed under plainerror review, Marshek “must show: (1) an error; (2) that is plain; and (3) that affects

substantial rights.” Townsend, 618 F.3d at 918 (quotation omitted). “An error affects

substantial rights if there is a ‘reasonable probability’ that in its absence a more

favorable sentence would have been imposed.” United States v. Means, 365 F. App’x

720, 722 (8th Cir. 2010) (unpublished per curiam) (citing United States v. Pirani, 406

F.3d 543, 552 (8th Cir. 2005)).

Marshek cannot show that the district court committed a procedural error when

it sentenced him to 14 months imprisonment. The court noted that, before deciding

on a sentence, it had considered both the Chapter Seven policy statements and the

section 3553(a) sentencing factors. A detailed listing and discussion of each element

of Chapter Seven or each factor of section 3553(a) is not required, particularly when

the defendant does not object at sentencing to the adequacy of the court’s

explanation. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en

banc). Accordingly, we reject Marshek’s claim of procedural error.

Moreover, we reject Marshek’s claim that his above-Guidelines sentence is

substantivelyunreasonable. While a district court must calculate the suggested range,

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it is not bound to impose a sentence within that range. The Chapter Seven guidelines

suggested a post-revocation sentencing range for Marshek of three to nine months

based on the Grade C violation for leaving the district without permission. United

States Sentencing Commission, Guidelines Manual, §§ 7B1.1(a)(3); 7B1.4(a). 

Though Marshek’s sentence was longer than the post-revocation sentence suggested

under Chapter 7, “[w]e have long recognized the purely advisory nature of the

Chapter 7 policy statements.” United States v. Larison, 432 F.3d 921, 922 (8th Cir.

2006). We have consistently found that a defendant’s repeated violations of

supervised release can justify a post-revocation sentence well above that suggested

by the Chapter 7 policy statements. See, e.g., Larison, 432 F.3d at 922-24; United

States v. Cotton, 399 F.3d 913, 916-17 (8th Cir. 2005) (affirming a 46-month

sentence for repeated violations where the advisory range was 7 to 13 months). 

Considering Marshek’s history of violating the terms ofsupervised release, it was not

unreasonable for the court to impose a longer sentence with no supervised release. 

Accordingly, the district court did not abuse its considerable discretion in imposing

the 14-month sentence. 

We affirm. 

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