United States v. Levell Durr , 875 F.3d 419 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3980
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Levell Lee Durr
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: October 16, 2017
Filed: November 14, 2017
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Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Levell L. Durr pled guilty to one count of coercion and enticement in violation
of 18 U.S.C. § 2422(a). The district court1 sentenced him to 21 months’
imprisonment and five years’ supervised release. After prison, he violated the
1
The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
conditions of release. The court revoked the release and sentenced him to 24 months,
a 10-month upward variance. He appeals. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.
Durr’s probation officer filed a seven-count petition for revocation alleging
Durr: (1) was arrested for possession of methamphetamine; (2) possessed an
unregistered smart phone; (3) failed to obtain employment or perform 20 hours of
community service weekly; (4) refused access to his phone during a probationary
search; (5) associated with known felons; (6) allowed others to use controlled
substances in his home; and (7) drove a vehicle with a suspended license. The district
court held a revocation hearing. Two probation officers testified. The court found
the government proved all but the fourth allegation by a preponderance of the
evidence. The court varied upward from the 8-14 month guideline range, imposing
a (government-requested) sentence of 24 months.
This court reviews sentences for abuse of discretion. United States v. Bryant,
606 F.3d 912, 918 (8th Cir. 2010). “Under this standard,” this court “initially
review[s] a sentence for significant procedural error and then, if necessary, for
substantive reasonableness.” Id. Reviewing for significant procedural error, this
court reviews “a district court’s factual findings for clear error and its interpretation
and application of the guidelines de novo.” Id.Durr argues the district court erred by varying upward based on “speculation”
he continued to engage in sex-trafficking. The court said:
And in all honesty, Mr. Durr, the officers that testified in this case, Mr.
Larson and Mr. Howard, they’re not fools. I mean, they can put two and
two together and figure out what’s probably going on in this case. And
what’s probably going on is that you’re involved in some of the same
sex trafficking type offenses that you were convicted of previously. I
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think there’s a high likelihood that you’re probably still pimping out
girls.
Relying on United States v. Stokes, Durr agues the court’s sex-trafficking
inference is impermissible. Stokes, 750 F.3d 767, 772 (8th Cir. 2014). There, this
court held the “sentencing judge plainly erred by (1) assuming the defendant had sold
drugs for ten years despite a lack of record support, and (2) using that fact as ‘a
principal basis for denying’ a downward variance.” United States v.
Corrales-Portillo, 779 F.3d 823, 834 (8th Cir. 2015), quoting Stokes, 750 F.3d at
772.
Stokes is distinguishable. There, the court’s inference was the “principal basis”
for varying upward. See Stokes, 750 F.3d at 772. Here, it is not. See
Corrales-Portillo, 779 F.3d at 834 (declining to follow Stokes where “there is nothing
in the record” to indicate that the district court’s allegedly improper inference “was
a principal basis” for the sentence). Imposing the sentence, the court said:
I believe there is a basis for a variance in this case and for the following
reasons: I think the record is clear that Mr. Durr has not been up to a lot
of good since his supervision commenced on February 12, 2016. He’s
been associating with known users of drugs – street drugs. He claims
that his lady friend, Charlee Fox, has hid her use of street drugs from
him, but I think that any reasonable person not working, not doing
anything meaningful with her life, comes and goes periodically, and
shows up with a lot of undesirables in his apartment on more than one
occasion.
Mr. Durr has violated the conditions of his supervision, a number of
them. He’s not working, associating with not only drug users, but
convicted felons. I think his behavior – from the testimony of the
probation officers, reveals a disrespect for the law and a disrespect for
the conditions of supervised release that were imposed upon him by
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myself. I believe he’s demonstrated little motivation to do anything real
meaningful with his life.
The court thus listed Durr’s multiple violations, including associating with known
drug users and convicted felons, not working, and disrespecting the law and court
orders. These violations support the court’s upward variance. In addition, the court
emphasized its consideration of the 3553(a) factors:
The Eighth Circuit has said that sentencing judge doesn’t have to
identify on the record and enumerate and discuss all of the 3553(a)
factors, but so the record is clear, I’m very familiar with every one of
those factors and have considered them all in this case.
Because the court imposed a sentence based on multiple violations and the
3553(a) factors, it did not procedurally err in varying upward.
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The judgment is affirmed.
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