Submitted: October 16, 2017
from United States District Court for the District of North
Dakota - Bismarck
SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
BENTON, Circuit Judge.
L. Durr pled guilty to one count of coercion and enticement
in violation of 18 U.S.C. § 2422(a). The district
court sentenced him to 21 months'
imprisonment and five years' supervised release. After
prison, he violated the 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.
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.
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.
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 think there's a high likelihood that
you're probably still pimping out girls.
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.
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
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 myself. I
believe he's demonstrated little motivation to do
anything real meaningful with his life.
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