UNITED STATES of America, Plaintiff-Appellée, v. Levell Lee DURR, Defendant-Appellant.
No. 16-3980
United States Court of Appeals, Eighth Circuit.
Submitted: October 16, 2017. Filed: November 14, 2017
419
Wedington argues that evidence he stopped taking anti-psychotic medications and decompensated over a decade ago cannot support a prediction that he would behave the same if discharged today. Otherwise, reliance on dated evidence сould justify perpetual commitment at FMCR. This argument ignores the government‘s extensive evidence establishing Wedington‘s continuing delusionаl behavior and refusal to acknowledge his mental illness and other medical needs. The district court relied on this evidence in finding, consistent with the opinions of Dr. Klein and Dr. Bocanegra, that Wedington‘s recent periods of good behavior and improved physical health compliance are attributable to his involuntary medication, and that he is therefore in need of continuing custody in the FMCR facility for the care and treatment of his longstanding mental disease, schizophrenia. Thus, the record evidеnce supports the district court‘s finding that Wedington requires ongoing commitment at FMCR under
After careful review of the record, we сonclude that ample evidence supports the district court‘s finding and therefore affirm.
Ryan Costello, Assistant Federal Public Defender, Federal Public Defender‘s Office, Suite 1, 324 N. Third Street, Bismarck, ND, Levell Lee Durr, Pro Se, Federal Correctional Institution, P.O. Box 1000, Oxford, WI, for Dеfendant-Appellant.
Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Levell L. Durr pled guilty to one count of coercion and enticemеnt in violation of
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) аssociated with known felons; (6) allowed others to use controlled substances in his home; and (7) drove a vehicle with a suspendеd license. The district court held a revocation hearing. Two probation officers testified. The court found the governmеnt 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).
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 рut 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 sаme sex trafficking type offenses that you were convicted of previously. I think there‘s a high likelihood that you‘re probably still pimping out girls.
Relying on United States v. Stokes, 750 F.3d 767, 772 (8th Cir. 2014), Durr argues the court‘s sex-trafficking inference is impermissible. Stokes, 750 F.3d at 772. 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 аnd 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 imрosed upon him by myself. I believe he‘s demonstrated little motivation to do anything real meaningful with his life.
The court thus listed Durr‘s multiple violatiоns, including associating with known drug users and convicted felons, not working, and disrespecting the law and court orders. These violations suрport the court‘s upward variance. In addition, the court emphasized its consideration of the
The Eighth Circuit has said that sentеncing judge doesn‘t have to identify on the record and enumerate and discuss all of the
3553(a) factors, but so the record is cleаr, 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
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The judgment is affirmed.
BENTON
CIRCUIT JUDGE