Case: 13-14095    Date Filed: 11/25/2014   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-14095
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:13-cr-00053-JA-KRS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                versus

SHAWN ALAN MARSHALL,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (November 25, 2014)

Before WILLIAM PRYOR, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:
               Case: 13-14095     Date Filed: 11/25/2014    Page: 2 of 4


      Shawn Marshall appeals his sentence of life imprisonment that he received

following his plea of guilty to causing a minor to engage in sexual acts by threat.

18 U.S.C. § 2242(1), (7). Marshall contests the enhancement of his base offense

level for being a repeat and dangerous sex offender against minors, United States

Sentencing Guidelines Manual § 4B1.5 (Nov. 2012), but we granted the motion of

the government to dismiss that issue as barred by Marshall’s sentence appeal

waiver. We consider Marshall’s challenges to the procedural and substantive

reasonableness of his sentence and his argument, made for the first time on appeal,

that his sentence constitutes cruel and unusual punishment in violation of the

Eighth Amendment. We affirm.

      Marshall argues that the district court failed to explain adequately the

reasons that it varied upward from the Sentencing Guidelines, but we disagree. The

district court stated that, after considering the arguments of the parties, the

presentence investigation report, and the statutory sentencing factors, the

sentencing range provided under the Guidelines would not address the “cruel and

despicable” nature of Marshall’s sexual abuse of his daughter, the duration of that

abuse, the violence and coercion used to force her into compliance, or the

devastating effects on her and on other members of the family. The district court

explained that Marshall’s offense was “more egregious than any [it] had . . .

address[ed]” and that an upward variance was necessary to address the “nature and


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circumstances of the offense” and to “adequately reflect the seriousness of the

offense,” “promote respect for the law,” and “provide just punishment in [the]

case.” 18 U.S.C. § 3553(a). The district court provided a reasoned basis for

Marshall’s sentence. See 

Gall v. United States, 

, 51, 

, 597 (2007).

      The district court also did not abuse its discretion by sentencing Marshall to

the maximum statutory punishment for his crime. Marshall raped his daughter and

forced her to perform fellatio on him repeatedly inside their home while she was

between the ages of 14 and 17. Marshall was physically and verbally abusive to

other family members in his daughter’s presence; he controlled his daughter by

threatening to harm her and applying physical force that included, on different

occasions, having her arms pinned behind her back and a cord wrapped around her

throat; and he convinced her that reporting the abuse would destroy their family.

The district court weighed the sentencing factors and reasonably determined that

the harms Marshall inflicted on his daughter and his family were sufficiently

compelling to justify varying upward from his advisory guideline range of 235 to

293 months to a sentence of imprisonment for life. We are not left with a “definite

and firm conviction” that Marshall’s sentence reflects a clear error of judgment.

See United States v. Irey, 

, 1190 (11th Cir. 2010). Marshall argues

that the district court ignored a neuropsychological evaluation that detailed his


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abusive childhood and his addiction to alcohol, but the district court determined

that Marshall’s reprehensible conduct outweighed his history and characteristics.

Marshall’s sentence is reasonable.

      Marshall’s argument raised for the first time on appeal that his sentence

violates the Eighth Amendment also fails. To prevail on review for plain error,

Marshall must prove that an error occurred and that the error is plain, affects his

substantial rights, and “seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Bacon, 

, 777 (11th Cir.

2010). “Before an error is subject to correction under the plain error rule, it must be

plain under controlling precedent or in view of the unequivocally clear words of a

statute or rule.” United States v. Schmitz, 

, 1270–71 (11th Cir. 2011).

Marshall cannot establish that his sentence is grossly disproportionate to his

offense. See United States v. Johnson, 

, 1243 (11th Cir. 2006). “In

general, a sentence within the limits imposed by statute is neither excessive nor

cruel and unusual under the Eighth Amendment.” 

marks

omitted). And Marshall fails to explain how his sentence violates the Eighth

Amendment or to cite any authority stating that a sentence of life imprisonment is

grossly disproportionate to sexually abusing a teenage daughter continually for

several years by means of physical force and coercion.

      We AFFIRM Marshall’s sentence.


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