United States of America v. Mark Allen Banes

United States Court of Appeals
For the Eighth Circuit
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No. 21-1187
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Mark Allen Banes
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 21-1188
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Mark Allen Banes
lllllllllllllllllllllDefendant - Appellant

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Appeals from United States District Court
for the Southern District of Iowa - Central
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Submitted: September 24, 2021
Filed: November 19, 2021
[Unpublished]
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Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges.
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PER CURIAM.
Mark Allen Banes was on supervised release when he was charged in the
Southern District of Iowa with failure to register as a sex offender in violation of 18
U.S.C. § 2250 and escape from federal custody in violation of 18 U.S.C. § 751(a).
After the district court denied his motion to dismiss the first charge for improper
venue, Banes pleaded guilty to both charges and was sentenced to concurrent 60-
month terms of imprisonment.1 He was also sentenced to a consecutive 24-month
term of imprisonment for violating the conditions of his supervised release.
1 The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa, denied the motion to dismiss. The case was thereafter reassigned to
the Honorable Rebecca Goodgame Ebinger, United States District Judge for the
Southern District of Iowa, who imposed Banes’s sentences.
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Banes appeals the denial of his venue-based motion to dismiss the charge of
failure to register as a sex offender. He also appeals all three sentences as
substantively unreasonable. We affirm.
I. Venue
In 2011, Banes pleaded guilty to failing to register as a sex offender and was
sentenced to 60 months’ probation. His terms of probation and supervised release
were revoked four times due to violations. Banes’s most recent term of supervised
release began in July 2019; as a condition thereof, he resided at the Fort Des Moines
Correctional Facility in Iowa.
Banes left the facility without permission in late October 2019 and traveled by
bus to Oklahoma, where police arrested him four weeks later. Banes did not register
as a sex offender in Oklahoma. After being charged with the above set forth counts,
Banes moved to dismiss the failure to register count, arguing that venue was improper
in Iowa because the offense conduct took place solely in Oklahoma. The district
court concluded that venue was proper in Iowa because the offense required interstate
travel and thus had begun in Iowa. We review de novo the denial of a motion to
dismiss for improper venue. United States v. Howell, 552 F.3d 709, 712 (8th Cir.
2009).
The Sixth Amendment to the U.S. Constitution provides criminal defendants
with the right to be tried “by an impartial jury of the State and district wherein the
crime shall have been committed.” U.S. Const. amend. VI. If an offense is “begun
in one district and completed in another,” venue is proper “in any district in which
such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). A violation
under § 2250(a) for failure to register as a state sex offender has three elements: (1)
the defendant is subject to the registration requirements under the Sex Offender
Registration and Notification Act (SORNA); (2) the defendant “travels in interstate
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or foreign commerce”; and (3) the defendant “knowingly fails to register.” 18 U.S.C.
§ 2250(a); see also Carr v. United States, 560 U.S. 438, 446 (2010) (examining “the
statute’s three elements”). At issue here is whether a § 2250(a) violation begins in
the state from which a sex offender departs when traveling in interstate commerce,
which would make venue proper in that state.
We concluded in United States v. Howell that, because a state “sex offender
violates SORNA only when he or she moves between states,” the violation is begun
in the state of origin, which is thus a proper venue under 18 U.S.C. § 3237(a).
Howell, 552 F.3d at 718. Banes argues that the Supreme Court’s subsequent holding
in Nichols v. United States contradicts Howell. Venue was not at issue in Nichols,
however, with the Court ruling only that SORNA does not require a sex offender to
update his now-departed state’s registry. Nichols v. United States, 136 S. Ct. 1113,
1118 (2016).
Banes argues that venue is not proper in the Southern District of Iowa because
under Nichols he did not commit a violation by failing to update his registration in
Iowa, and thus the violation occurred solely in Oklahoma.2 Although this is our first
case to address venue post-Nichols, we had reached the same holding as Nichols three
years earlier. In United States v. Lunsford, we saw no contradiction between our
holding in Howell and concluding that the failure to update the registry of the
departed state is not a violation of SORNA. 725 F.3d 859, 863–64 (8th Cir. 2013).
2 Compare United States v. Haslage, 853 F.3d 331, 334 (7th Cir. 2017) (holding
that venue is improper in the state of origin because “Nichols tells us that no criminal
conduct even begins until she fails to register in [the destination state]”), with United
States v. Lewallyn, 737 F. App’x 471, 473 (11th Cir. 2018) (per curiam) (“Nichols
did not address venue, . . . and venue was proper [where the defendant] began his
travel . . . .”), and United States v. Holcombe, 883 F.3d 12, 15–16 (2d Cir. 2018)
(same), cert. denied, 140 S. Ct. 820 (2020).
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We instead described venue as an independent issue. Id. at 864 (“[A] determination
whether SORNA required [the defendant] to update the registry in Iowa was not
necessary . . . to the court’s decision on venue.”). Nichols therefore does not
represent an intervening change in law, and thus we are bound by our precedent in
Howell. See United States v. Anderson, 771 F.3d 1064, 1066–67 (8th Cir. 2014).
We conclude that venue in the Southern District of Iowa was proper because Banes’s
violation began when he began traveling in Iowa.
II. Sentences for New Offenses
With respect to the failure to register and escape offenses, the district court
concluded that the U.S. Sentencing Guidelines (Guidelines) advisory range was 37
to 46 months’ imprisonment. The district court rejected Banes’s request for a
downward variance to 24 months’ imprisonment and instead varied upward. We
review substantive reasonableness under an abuse-of-discretion standard. United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).
Banes argues that his concurrent 60-month sentences are substantively
unreasonable because the district court gave too little weight to his background,
including his chaotic childhood, mental health issues, and lack of prior sex offender
treatment. His childhood did receive significant weight, however, as the court cited
it as a reason for not imposing the statutory maximum of 15 years’ imprisonment.
The court also considered that Banes had failed to undergo a required mental health
evaluation or to take advantage of treatment opportunities provided by the probation
office. Accordingly, the record reflects that the district court considered these and
other mitigating factors in sentencing Banes. See United States v. King, 898 F.3d
797, 810 (8th Cir. 2018) (“The district court’s decision not to weigh mitigating
factors as heavily as [the defendant] would have preferred does not justify reversal.”
(internal quotation marks and citation omitted)).
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We likewise reject Banes’s contention that the court gave too much weight to
his “offense conduct and inappropriate behavior while on supervised release.” The
court was required to consider “the history and characteristics of the defendant” and
the need “to protect the public from further crimes of the defendant.” 18 U.S.C. §
3553(a)(1), (2)(C). Banes has repeatedly violated the terms of supervised release, and
his recent conduct in soliciting nude pictures of underage girls and requesting sex
with them demonstrates a continued willingness to act on his sexual interest in
children. The district court did not abuse its discretion by giving these factors
significant weight. See United States v. Roberts, 747 F.3d 990, 992 (8th Cir. 2014)
(“[A] sentencing court has wide latitude to weigh the section 3553(a) factors in each
case and assign some factors greater weight than others.” (internal quotation marks
and citation omitted)).
III. Revocation Sentence
Banes stipulated to six violations of the conditions of his supervised release,
and the district court found that he had committed two additional violations. The
advisory Guidelines sentencing range was 24 to 30 months’ imprisonment for the
violations of supervised release. See U.S.S.G. § 7B1.4(a) (based on a Grade A
violation and a criminal history category of IV).3 As mentioned above, the district
3 The district court stated that Banes’s advisory sentencing range would be 18
to 24 months’ imprisonment if he had only Grade B and C violations; this was error,
as that would require Banes to have had a criminal history category of V at the time
of his underlying offense. His criminal history category at that time was IV. Banes
concedes, however, that he had a Grade A violation, so the correct sentencing range
was 24 to 30 months’ imprisonment. The actual sentence imposed—24 months’
imprisonment—is within Banes’s correct Guidelines range and adequately justified
by the court, so this plain error in calculating the Guidelines range did not
substantially affect the defendant’s rights. See Fed. R. Crim. P. 52(b).
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court sentenced Banes to 24 months’ imprisonment, to be served consecutively to his
60-month sentences. We review the substantive reasonableness of a revocation
sentence under the same abuse-of-discretion standard as an initial sentence, and a
revocation sentence within the applicable Guidelines range is presumed to be
reasonable. United States v. Petreikis, 551 F.3d 822, 824 (8th Cir. 2009).
Banes argues that, in light of his above-Guidelines sentence for the new
offenses, his 24-month sentence for the revocation of his supervised release is
unreasonable. He offers no legal authority in support of his position that
consideration of the same factors in both sentences was improper. We have
previously stated that a defendant’s sentences for new offenses “can have no bearing
on the reasonableness of his revocation sentence, because they are separate and
distinct from it.” United States v. Olson, 839 F. App’x 30, 32 (8th Cir. 2021) (per
curiam) (rejecting defendant’s argument that his revocation sentence was
unreasonable because the sum of that sentence and sentences for new offenses
exceeded the maximum revocation sentence); see also United States v. Watters, 947
F.3d 493 (8th Cir. 2020) (rejecting defendant’s argument that his sentence for new
offense was unreasonable because it did not vary downward in light of his revocation
sentence based on the same facts). The district court did not abuse its discretion in
considering the factors relevant to sentencing for revocation of Banes’s supervised
release.
The judgment is affirmed.
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