1

The Honorable Daniel L. Hovland, United States District Judge for the District

of North Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3228

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of North Dakota.

Monty M. Mariner, *

* [UNPUBLISHED]

Appellant. *

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Submitted: March 1, 2011

Filed: March 4, 2011

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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges

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PER CURIAM.

Monty Mariner challenges the sentence the district court1

 imposed after a jury

found him guilty of committing assault resulting in serious bodily injury (Count 1),

assault with a dangerous weapon (Count 2), and sexual abuse (Count 3), all in Indian

country, in violation of 18 U.S.C. §§ 113(a)(3), (a)(6), 1153, and 2252(2)(B). His

counsel has moved to withdraw, and has filed a brief under Anders v. California, 386

U.S. 738 (1967), arguing that the district court violated Federal Rule of Criminal

Procedure 32 by relying on its knowledge of the facts and sentence in a similar case,
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United States v. Papakee, 573 F.3d 569 (8th Cir. 2009), and by expressing its respect

for the sentencing judge in that case, without first giving Mariner an opportunity to

comment on that information. He also argues that the sentence is unreasonable. In

a pro se supplemental brief, Mariner argues that counsel was ineffective; that the court

erroneously admitted evidence of Mariner’s prior sexual assaults; that the government

should have acquired fingerprints from a van used in the crimes; that the evidence is

insufficient to support the verdict; and that the sentence is unreasonable. 

We decline to consider the ineffective-assistance claim in this direct appeal, see

United States v. Lewis, 483 F.3d 871, 873 n.2 (8th Cir. 2007); and we find that the

evidence, viewed in the light most favorable to the verdict, amply supports the jury’s

verdict regardless of fingerprint evidence, see United States v. Wilson, 619 F.3d 787,

795 (8th Cir. 2010); United States v. Erdman, 953 F.2d 387, 389 (8th Cir. 1992). We

also conclude that the court did not abuse its discretion in admitting evidence of

Mariner’s prior sexual assaults. See Fed. R. Evid. 413(a). 

Reviewing the Rule 32 argument for plain error, see United States v. Pirani, 406

F.3d 543, 549 (8th Cir. 2005) (en banc) (errors not preserved below are reviewed for

plain error), we find none, plain or otherwise. The district court properly considered

the facts and sentence in Papakee because sentences in similar cases are relevant

considerations under section 3553(a), see 18 U.S.C. § 3553(a)(6); and we find no

miscarriage of justice resulting from the court’s expression of respect for a colleague,

see United States v. Clayton, 210 F.3d 841, 843 (8th Cir. 2000) (court will not reverse

for plain error absent clear error resulting in manifest injustice).

Reviewing the sentence for abuse of discretion, we find no procedural error and

we conclude that the sentence is not substantively unreasonable. See United States

v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc); United States v. Watson,

480 F.3d 1175, 1177 (8th Cir. 2007) (listing circumstances where court abuses its

discretion, resulting in unreasonable sentence).
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Finally, having reviewed the record independently under Penson v. Ohio, 488

U.S. 75, 80 (1988), we have found no nonfrivolous issues for appeal. However, the

written judgment states that 360-month sentences of supervised release were imposed

on Counts 1 and 2 rather than the 36-month sentences announced by the court.

Accordingly, we modify the judgment to reflect 36-month terms of supervised release

on each of Counts 1 and 2, and we affirm the judgment as modified. See 28 U.S.C.

§ 2106. We also grant counsel’s motion to withdraw, subject to counsel informing

Mariner about procedures for seeking rehearing or filing a petition for certiorari.

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