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United States of America v. Kevin Ray Martin

May 14, 2012

UNITED STATES OF AMERICA,
PLAINTIFF - APPELLEE,
v.
KEVIN RAY MARTIN,
DEFENDANT - APPELLANT.



Appeal from the United States District Court for the Western District of Missouri.

The opinion of the court was delivered by: Melloy, Circuit Judge.

Submitted: April 17, 2012

Before MELLOY, ARNOLD, and GRUENDER, Circuit Judges.

Kevin Ray Martin pled guilty to violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). Martin's Presentence Investigation Report (PSR) indicated that his offense level was 13 and he had a criminal history category III, yielding an advisory Guidelines sentencing range of eighteen to twenty- four months. The district court*fn1 concluded that the advisory range was inadequate in light of the statutory factors set forth in 18 U.S.C. § 3553(a) and sentenced Martin to 120 months' imprisonment, the statutory maximum for Martin's offense. Martin challenges his sentence on appeal, arguing that it is grossly disproportionate to the crime that was committed, in violation of the Eighth Amendment. We affirm.

I.

On September 19, 1990, Martin entered a plea of nolo contendere to a charge of rape in Marion County, Arkansas, and was sentenced to fifteen years. He was released on July 7, 2000, at which time he was advised of his duty to register as a sex offender. Less than two months later, on August 28, 2000, Martin was charged in Benton County, Arkansas, with attempted rape and battery after he chased a woman and grabbed her while she was jogging. Martin eventually pled guilty to an amended charge of false imprisonment and was sentenced to ten years' imprisonment.

On August 27, 2010, Martin completed his sentence. Before obtaining his release from the Arkansas Department of Corrections, he completed a State of Arkansas Sex Offender Registration Form and was again advised of his ongoing duty to register as a convicted sex offender. On September 18, 2010, Martin completed a Missouri Offender Registration/Change of Address form, listing a new address in Taney County, Missouri. When a deputy Sheriff arrived at that address three days later to check on its validity, the homeowner informed the deputy that no one named Kevin Martin had ever lived there. The deputy determined at that time that Martin's registration was fraudulent.

On October 14, 2010, Martin was arrested in Stone County, Missouri, after police received reports about a suspicious man in the vicinity of a local school. At the time of his arrest, Martin had in his possession numerous personal items belonging to a fourteen-year-old girl attending the school. The girl was the daughter of Martin's former fellow inmate, with whom he was staying. The personal items Martin possessed included a pair of the girl's panties, various pictures of her, and handwritten notes indicating her interests and birthday.

A federal indictment was returned on November 9, 2010, charging Martin with failure to register as a sex offender under SORNA. Martin pled guilty, and a sentencing hearing was conducted on November 17, 2011. At the hearing, the district court heard testimony about the circumstances of Martin's 2010 arrest. The girl's mother testified that Martin had taken her daughter's belongings without the family's permission and that he had stayed with the family without disclosing his status as a sex offender. The court also considered additional evidence about Martin's criminal history. Although his PSR calculated his criminal history category based only on the two convictions mentioned above, official documents indicated that there had also been unadjudicated charges filed against Martin in 2000 for failing to register as a sex offender and for incest, as well as a juvenile charge for attempted rape in 1987 for which the juvenile records were not preserved.

Citing the factors in § 3553(a), the district court varied upward from the Guideline range and sentenced Martin to 120 months. The court explained:

A person with your history and characteristics who gets out of prison, who fails to register as a sex offender, continues to engage in conduct that reflects an obsession for young girls . . . shows that society seriously needs to be protected from you, and I believe that a sentence taking into consideration these statutory factors needs to send a message to promote respect for the law and provide adequate and just punishment and hopefully deter others from engaging in the type of conduct you have engaged in.

See 18 U.S.C. §3553(a)(1) (instructing the court to consider "the nature and circumstances of the offense and the history and characteristics of the defendant"); § 3553(a)(2)(A), (C) (instructing the court to consider "the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense" and "to protect the public from further crimes of the defendant").

Martin filed a timely notice of appeal. On appeal, he does not challenge his sentence on any procedural grounds or allege that the sentence was substantively unreasonable. The sole issue before us is Martin's Eighth Amendment challenge that the ...


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