967 F.3d 575
7th Cir.2020Background
- Marcus Durham was convicted in 1997 of crack-cocaine offenses and sentenced to 420 months; retroactive Sentencing Guidelines amendments (Amendments 750 and 782) later reduced his term to 240 months, and he was released in 2015 subject to 10 years supervised release.
- In 2018 the Probation Office alleged multiple supervised‑release violations, including a violent domestic battery, theft, unauthorized travel, and false statements; the court found the violations by a preponderance of the evidence.
- The advisory revocation Guideline range was 8–14 months (Grade B violation, CHC III); the statutory maximum was 60 months.
- The district court imposed a 30‑month sentence (about twice the top of the advisory range). During sentencing the judge referenced U.S.S.G. § 7B1.4 Application Note 4 — suggesting prior reductions supported an upward variance. Defense counsel did not object and in fact agreed the point was "well taken."
- On appeal Durham argued the district court procedurally erred by relying on Application Note 4 because his sentence reductions resulted from retroactive guideline amendments (not downward departures or charge reductions); he also argued the sentence was substantively unreasonable.
- The Seventh Circuit affirmed, finding any error in invoking Application Note 4 was forfeited and harmless under plain‑error review and that the 30‑month revocation sentence was not substantively unreasonable under § 3553(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court procedurally erred by relying on U.S.S.G. § 7B1.4 Application Note 4 to justify an upward variance because Durham's prior reductions resulted from guideline amendments, not downward departures | Durham: Note 4 is inapplicable; the reductions were § 3582(c)(2) retroactive amendments, not departures or charge reductions, so using it to justify an upward variance was legal error | Government/District Court: Court referenced the note but also relied on § 3553(a) factors (seriousness of the domestic violence, need to protect public, deterrence); defense counsel did not object | Court: Any misreading of Note 4 was forfeited and reviewed for plain error; the record shows the sentence rested on § 3553(a) factors and the error was harmless — affirmed |
| Whether the 30‑month revocation sentence (above the 8–14 mo. advisory range) was substantively unreasonable | Durham: 30 months is disproportionate to the advisory range and therefore plainly unreasonable | Government: Sentence is within the 60‑month statutory maximum and justified by the violent nature of violations, lack of respect for law, and need for deterrence/protection | Court: Highly deferential review; 30 months is within statutory limit and not "plainly unreasonable" given the gravity of Durham’s conduct — affirmed |
Key Cases Cited
- United States v. Wade, 890 F.3d 629 (7th Cir. 2018) (upward variance can be justified where prior leniency did not rehabilitate defendant)
- United States v. Salgado, 917 F.3d 966 (7th Cir. 2019) (procedural errors do not always require resentencing)
- United States v. Godinez, 955 F.3d 651 (7th Cir. 2020) (plain‑error standard applies to forfeited sentencing objections)
- United States v. Olano, 507 U.S. 725 (1993) (elements of plain‑error review)
- Rosales‑Mireles v. United States, 138 S. Ct. 1897 (2018) (standard for showing a reasonable probability that an error affected the outcome)
- Molina‑Martinez v. United States, 136 S. Ct. 1338 (2016) (how a Guidelines error can affect substantial rights)
- United States v. Colon, 919 F.3d 510 (7th Cir. 2019) (review of sentencing transcript to assess error’s effect)
- United States v. Prado, 743 F.3d 248 (7th Cir. 2014) (harmlessness analysis for sentencing errors)
- United States v. Abbas, 560 F.3d 660 (7th Cir. 2009) (harmless error in sentencing context)
- United States v. Allgire, 946 F.3d 365 (7th Cir. 2020) (considering defendant’s lack of respect for law as a basis for variance)
- United States v. Padilla, 618 F.3d 643 (7th Cir. 2010) (upward variance permissible where defendant failed to turn life around)
- United States v. Boultinghouse, 784 F.3d 1163 (7th Cir. 2015) (substantive‑reasonableness review is highly deferential)
- United States v. Berry, 583 F.3d 1032 (7th Cir. 2009) (greater sentencing flexibility on supervised‑release revocations)
- United States v. Warner, 792 F.3d 847 (7th Cir. 2015) (guidelines are advisory; § 3553(a) governs final selection)
- United States v. Wilson, [citation="630 F. App'x 575"] (6th Cir. 2015) (upward variance can be premised on failure to benefit from a § 3582 reduction)
- United States v. Purnell, 701 F.3d 1186 (7th Cir. 2012) (§ 3582(c)(2) reductions are discretionary and not departures)
- United States v. Neal, 611 F.3d 399 (7th Cir. 2010) (treatment of § 3582 reductions in sentencing analysis)