United States of America v. Anthony Byron Marshall

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-1518
___________________________
United States of America
Plaintiff - Appellee
v.
Anthony Byron Marshall
Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: April 18, 2025
Filed: August 15, 2025
[Unpublished]
____________
Before ERICKSON, ARNOLD, and STRAS, Circuit Judges.
____________
PER CURIAM.
This case is about grouping sex offenses at sentencing. See U.S.S.G.
§§ 3D1.1, 2G1.3(d)(1). Although Anthony Marshall now argues that the district
court1 grouped his incorrectly, he waived the objection through counsel.
1 The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.

-- 1 of 2 --

-2-
Grouping can get complicated. The Sentencing Guidelines instruct district
courts to “[g]roup the counts resulting in conviction into distinct [g]roups of
[c]losely [r]elated [c]ounts.” Id. § 3D1.1(a)(1) (emphasis added). When the
convictions involve “[p]romoting . . . [p]rohibited [s]exual [c]onduct with a
[m]inor,” however, grouping is by victim, even if there is just a single count. Id.
§ 2G1.3(d)(1). Here, with Marshall enticing two minors to engage in illegal sexual
activity, see 18 U.S.C. § 2422(b), the district court split a single count into two
groups. It then added one more covering all four receipt-of-child-pornography
counts, see id. § 2252(a)(2), creating a total of three. See U.S.S.G. § 3D1.4
(describing the effect on the offense level).
Marshall’s position on appeal is that there should be only two groups, not
three, because he enticed only one minor, not two. See id. § 2G1.3(d)(1). The
problem is his own counsel took the opposite position at sentencing by agreeing with
the district court that there should be three. Based on this concession, Marshall has
waived any argument to the contrary. See United States v. White, 447 F.3d 1029,
1032 (8th Cir. 2006) (noting that, if a defendant “acknowledg[es] that” a district
court’s decision is “correct,” he “waive[s] his right to argue [it] on appeal”); see also
Robinson v. Norling, 25 F.4th 1061, 1062 (8th Cir. 2022) (“When an argument has
been waived . . . it is entirely unreviewable on appeal.” (citation omitted)). We
accordingly affirm the judgment of the district court.
______________________________

-- 2 of 2 --