United States of America v. Mark Edwin Comer, also known as Mark Comer

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3181
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Mark Edwin Comer, also known as Mark Comer
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Joplin
____________
Submitted: July 15, 2024
Filed: July 18, 2024
[Unpublished]
____________
Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
____________
PER CURIAM.
Mark Comer appeals the sentence the district court1 imposed after he pleaded
guilty to a child pornography offense. His counsel has moved to withdraw and has
1The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.

-- 1 of 3 --

filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging the
substantive reasonableness of the sentence.
After careful review, we conclude that the district court did not abuse its
discretion in sentencing Comer. See United States v. Feemster, 572 F.3d 455, 461-62
(8th Cir. 2009) (en banc) (standard of review); see also United States v. Mangum, 625
F.3d 466, 469-70 (8th Cir. 2010) (concluding an upward variance was reasonable
where the court made an individualized assessment based on the facts presented).
Having independently reviewed the record pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we find no non-frivolous issues for appeal. We note, however, that
the written judgment conflicts with the court’s oral pronouncement at sentencing with
respect to Comer’s obligation to pay restitution. See United States v. Olson, 716 F.3d
1052, 1056 (8th Cir. 2013) (stating that a district court’s oral sentence controls when
it conflicts with the written judgment). The record reflects that Comer agreed to pay
restitution as a condition of supervised release, and at sentencing, the court
specifically referred to payment of restitution “[a]s a portion of supervised release.”
The judgment entered, however, provided that the restitution was due immediately
and that if Comer did not pay it immediately, he was required to make payments
while incarcerated. We conclude these provisions conflict with the district court’s
statements during sentencing imposing restitution as only a condition of supervised
release. See United States v. Kieffer, 794 F.3d 850, 853 (7th Cir. 2015) (per curiam)
(stating that while the district court may have intended to order restitution as only a
condition of supervised release, the judgment went further by requiring payment upon
incarceration); see also United States v. Johnson, 529 U.S. 53, 57-59 (2000)
(concluding that a supervised release term does not commence until the individual is
released from imprisonment). Accordingly, we modify the judgment to provide that
restitution is a condition of supervised release commencing upon Comer’s release
from custody. See 28 U.S.C. § 2106 (appellate court may modify any judgment
-2-

-- 2 of 3 --

brought before it for review); United States v. Adams, 955 F.3d 238, 251 (2d Cir.
2020).
We affirm the judgment as modified and grant counsel leave to withdraw.
______________________________
-3-

-- 3 of 3 --