United States v. Durham

• Decision Date: 17 July 2020
• Docket Number: No. 18-3283,18-3283
• Citation: 967 F.3d 575
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcus C. DURHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

967 F.3d 575

UNITED STATES of America, Plaintiff-Appellee,

v.Marcus C. DURHAM, Defendant-Appellant.

No. 18-3283

United States Court of Appeals, Seventh Circuit.

Submitted April 28, 2020^*

Decided July 17, 2020

Casey Bloodworth, George A. Norwood, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Benton, IL, for Plaintiff - Appellee.

Johanna M. Christiansen, Thomas W. Patton, Attorneys, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL, for Defendant - Appellant.

Before Easterbrook, Ripple, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

Marcus Durham received a 35-year sentence for a federal drug offense that was later reduced to 20 years due to subsequent amendments to the Sentencing Guidelines. Upon regaining his liberty, however, Durham violated the terms of his supervised release, including by committing a domestic battery. The district court sentenced him to 30 months’ imprisonment for these violations—about twice the high end of the guidelines advisory range. In imposing this sentence, the district court emphasized the gravity of Durham's abuse of his ex-girlfriend. Durham contends that the 30-month sentence is too long and the product of the district court effectively penalizing him for benefiting from the amendments to the guidelines that reduced his original sentence. Having taken our own fresh look at the sentencing transcript, we see no errors and therefore affirm.

I

In 1997 Marcus Durham was convicted of conspiring to distribute substantial quantities of crack cocaine and sentenced to 35 years’ imprisonment to be followed by a ten-year term of supervised release. Years later he caught a break when the U.S. Sentencing Commission made two amendments to the Sentencing Guidelines that applied to him—Amendments 750 (2011) and 782 (2014)—both of which adjusted the offense levels for certain drug crimes, including those involving crack cocaine. The amendments applied retroactively to offenders like Durham and had the combined effect of reducing his term of imprisonment to 20 years. He completed serving that portion of his sentence in 2015 and was released from custody, though he remained bound to abide by the conditions of his supervised release for the next decade.

Durham's freedom was short-lived. In July 2018 the Probation Office asked the district court to revoke his supervised release on the basis of multiple violations, including a domestic battery, theft of over $500 (of clothing from a Dillard's department store), unauthorized travel outside the judicial district, and making false statements in a report to his probation officer. The court held a hearing on the alleged violations, and the government presented testimony from several witnesses.

One of those witnesses was Durham's former girlfriend. She testified that Durham showed up at her home at 2:30 a.m. to rehash a fight. She explained that "he was upset, saying he was going to treat me like he treat[s] the bitches on the streets." She walked him out of her house, away from her daughter who was upstairs, as he continued his rant. The two made their way to the porch, where the altercation turned physical and Durham pushed her into a bush. She then ran down the street and managed to call 911.

A neighbor who witnessed the incident largely corroborated the victim's account, testifying that he saw her arguing with a man on the porch at that same time. But he described the physical contact as being more violent, stating that he saw the man "grab[ ] her by the throat and [throw] her down onto the concrete." He too called 911, and the district court admitted the recordings of both his call and the ex-girlfriend's at the hearing.

At the close of the witness testimony, the district court found that the government had proved multiple supervised release violations, including the domestic battery, by a preponderance of the evidence. Turning to sentencing, the court observed that the statutory maximum was 60 months’ imprisonment and, in agreement with the parties, determined that the advisory range under the Sentencing Guidelines was 8 to 14 months.

The government recommended 30 months in light of Durham's violations, which evidenced a lack of respect for the law. The government also observed that amendments to the guidelines had afforded Durham an opportunity in the form of a reduced sentence, which he then failed to take advantage of by returning to crime. The government argued that the sentencing factors in 18 U.S.C. § 3553(a), including the need to deter Durham from further criminal conduct, warranted a 30-month sentence.

Defense counsel urged a sentence of time-served, emphasizing Durham's good behavior during his first three years of supervised release. In the course of his argument, defense counsel also observed that Durham had successfully "served all 20 years of [his prior reduced] sentence"—"every day of that 240 months." The district court rejoined by asking how that observation had anything to do with the appropriate sentence for Durham's supervised release violations. The district court then offered this remark: "The guideline allows for an upward variance, if he received a reduction. He has received two reductions. He started off with a sentence of 420 months. It was reduced once on the drug amendments, and then a second time. That is what the sentencing guideline speaks to."

The district court's reference was almost certainly to Application Note 4 to U.S.S.G. § 7B1.4, which provides that "[w]here the original sentence was the result of a downward departure (e.g., as a reward for substantial assistance), or a charge reduction that resulted in a sentence below the guideline range applicable to the defendant's underlying conduct, an upward departure may be warranted." We say almost certainly because, though neither party mentioned the application note at the hearing, the Probation Office expressly referenced that note in its presentencing submission outlining the sentencing options available to the district court. The district court's reference to Application Note 4 makes sense in context given that the government's argument included both mention of the reductions to Durham's original sentence and a request for an upward variance.

Durham's attorney reacted to the district court's reference by saying, "That's a point well-taken, Judge." Sentencing continued without any additional reference to the guidelines. For his part, Durham accepted the district court's invitation to make a statement on his behalf. He denied having assaulted his ex-girlfriend, going so far as to say that "[e]verything she said was not true." Durham also suggested that he had done everything possible to abide by the terms of his supervised release. These statements did not sit well with the district court, who promptly reacted by saying, "Sir, you violated your supervised release with domestic violence. This is not an administrative violation [and indeed] I heard [the victim's] description. I listened to the 911 tape. I heard the 911 call from her neighbor. It was a violent act."

In the end, the district court sentenced Durham to 30 months for the supervised release violations. Just before announcing the sentence, the court expressed to Durham its "concern[ ] with the need to protect the public from you because of your conduct, because of your violation conduct," telling him that what he did was "serious" and warranted a meaningful punishment that would deter future criminal conduct. Along similar lines, the court pointed to Durham's belligerent conduct with the police upon being arrested for possessing the stolen clothing from the Dillard's, stating that "[t]here is a need to promote a respect for the law." In summarizing its reasoning, the district court acknowledged Durham's compliance with the terms of his supervised release for three years but then underscored that he "fell back off into criminality" and "did so in such a way that the circumstances of your violations tell this Court that there is a need for [a] serious disposition and sentence."

Durham now appeals.

II

We start with Durham's challenge to the procedural reasonableness of his revocation sentence. His primary contention is that the district court arrived at the 30-month revocation sentence—thus imposing a variance above the advisory range of 8 to 14 months—by impermissibly considering that Durham had succeeded in invoking Amendments 750 and 782 to the Sentencing Guidelines and realizing two reductions to his original sentence (from 35 to 20 years). Durham grounds his position in the district court's remark during the revocation proceeding that "[t]he guideline"—a likely reference to Application Note 4 to U.S.S.G. § 7B1.4 —"allows for an upward variance, if he received a [prior sentencing] reduction." The court's reliance on Application Note 4, Durham contends, reflected legal error because the sentencing reductions he received had nothing to do with any departure afforded at his original sentencing, but instead followed entirely from subsequent retroactive amendments to the guidelines.

At one level, Durham is correct. He is right that Application Note 4 to § 7B1.4 permits "an upward departure" for a revocation sentence "[w]here the original sentence was the result of a downward departure" or "a charge reduction that resulted in a sentence below the guideline range applicable to the defendant's underlying conduct." That policy statement does not apply to Durham's case because his original sentence involved no such downward departure or charge reduction. Nor were the later modifications to his sentence the fruit of any departure or charge reduction—they came pursuant to Amendments 750 and 782, and in no way can an amendment to the guidelines be said to be a departure. See United States v. Wade , 890 F.3d 629, 633 (7th Cir. 2018).

To the extent the district court held a different understanding, Durham is on sound ground calling that view a legal error. But it is equally plain that not all procedural errors require...