United States of America v. Marlin Santana Thomas

United States Court of Appeals
For the Eighth Circuit
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No. 18-3338
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Marlin Santana Thomas
lllllllllllllllllllllDefendant - 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 16, 2019
Filed: September 19, 2019
[Unpublished]
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
Marlin Thomas appeals the above-Guidelines sentence the district court1
imposed after he pleaded guilty to a drug offense. His counsel has moved for leave
The Honorable John A. Jarvey, Chief Judge, United States District Court for1
the Southern District of Iowa.

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to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
suggesting that the district court made various sentencing errors.
We first conclude that the district court did not abuse its discretion in
considering prior grand jury testimony by one person and hearsay testimony offered
at sentencing regarding statements by a second person, as the evidence possessed
sufficient indicia of reliability to support its probable accuracy. See United States v.
Sheridan, 859 F.3d 579, 583 (8th Cir. 2017) (standard of review; in resolving
disputed issues of fact during criminal sentencing, district court may rely on relevant
hearsay, so long as evidence possesses sufficient indicia of reliability to support its
probable accuracy). Next, we conclude that the district court did not clearly err in
finding the grand jury testimony credible, as it was not contradicted by extrinsic
evidence, internally inconsistent, or implausible. See United States v. Wright, 739
F.3d 1160, 1166-67 (8th Cir. 2014) (standard of review; district court’s decision to
credit testimony can almost never be clear error unless testimony is contradicted by
extrinsic evidence or is so internally inconsistent or implausible on its face that no
reasonable factfinder would credit it). We further conclude that the district court did
not abuse its discretion by crediting hearsay testimony regarding statements by the
second person, based on the court’s observations of that person’s testimony in another
proceeding. See United States v. Tucker, 404 U.S. 443, 446 (1972) (at sentencing,
district court may conduct inquiry broad in scope, and is largely unlimited as to kind
of information it may consider or source from which that information may come).
We also ascertain no error in the district court’s application of a Guidelines
enhancement based on evidence that Thomas choked a woman and forced heroin into
her mouth. See U.S.S.G. § 2D1.1(b)(2) (2-level enhancement if, inter alia, defendant
used violence). We further conclude that the district court did not err in imposing an
above-Guidelines sentence based on Thomas’s prostitution activities, which the court
found were “inextricably intertwined” with his drug offense. See United States v.
Mangum, 625 F.3d 466, 469-70 (8th Cir. 2010) (upward variance was reasonable
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where court made individualized assessment based on facts presented). Thomas’s
sentence also is not substantively unreasonable. See United States v. Feemster, 572
F.3d 455, 461-62 (8th Cir. 2009) (en banc) (discussing substantive reasonableness).
Finally, we have independently reviewed the record pursuant to Penson v.
Ohio, 488 U.S. 75 (1988), and have found no nonfrivolous issues. Accordingly, we
grant counsel’s motion for leave to withdraw, and we affirm.
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