United States of America v. Marcus C. Durham

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3283
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
MARCUS C. D URHAM,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 4:96-cr-40051 — Staci M. Yandle, Judge.
____________________
SUBMITTED A PRIL 28, 2020* — D ECIDED J ULY 17, 2020
____________________
Before EASTERBROOK , R IPPLE , 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
* We granted the appellant’s motion to waive oral argument, and the
appeal is therefore submitted on the briefs and the record. F ED . R. APP. P.
34(a)(2)(C).

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2 No. 18-3283
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 impos-
ing 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 dis-
trict court effectively penalizing him for benefiting from the
amendments to the guidelines that reduced his original sen-
tence. Having taken our own fresh look at the sentencing tran-
script, we see no errors and therefore affirm.
I
In 1997 Marcus Durham was convicted of conspiring to
distribute substantial quantities of crack cocaine and sen-
tenced 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 por-
tion 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 Pro-
bation Office asked the district court to revoke his supervised
release on the basis of multiple violations, including a domes-
tic battery, theft of over $500 (of clothing from a Dillard’s de-
partment store), unauthorized travel outside the judicial

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No. 18-3283 3
district, and making false statements in a report to his proba-
tion officer. The court held a hearing on the alleged violations,
and the government presented testimony from several wit-
nesses.
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 corrobo-
rated 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 admit-
ted 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 pre-
ponderance of the evidence. Turning to sentencing, the court
observed that the statutory maximum was 60 months’ impris-
onment and, in agreement with the parties, determined that
the advisory range under the Sentencing Guidelines was 8 to
14 months.

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4 No. 18-3283
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 sen-
tencing 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, empha-
sizing 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 sen-
tence 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 sec-
ond time. That is what the sentencing guideline speaks to.”
The district court’s reference was almost certainly to Ap-
plication 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 guide-
line range applicable to the defendant’s underlying conduct,
an upward departure may be warranted.” We say almost cer-
tainly because, though neither party mentioned the applica-
tion note at the hearing, the Probation Office expressly

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No. 18-3283 5
referenced that note in its presentencing submission outlining
the sentencing options available to the district court. The dis-
trict 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 con-
tinued 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 an-
nouncing the sentence, the court expressed to Durham its
“concern[] with the need to protect the public from you be-
cause 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 con-
duct. Along similar lines, the court pointed to Durham’s bel-
ligerent conduct with the police upon being arrested for pos-
sessing the stolen clothing from the Dillard’s, stating that
“[t]here is a need to promote a respect for the law.” In

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6 No. 18-3283
summarizing its reasoning, the district court acknowledged
Durham’s compliance with the terms of his supervised re-
lease for three years but then underscored that he “fell back
off into criminality” and “did so in such a way that the cir-
cumstances 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 rea-
sonableness of his revocation sentence. His primary conten-
tion is that the district court arrived at the 30-month revoca-
tion 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 refer-
ence to Application Note 4 to U.S.S.G. § 7B1.4—“allows for an
upward variance, if he received a [prior sentencing] reduc-
tion.” The court’s reliance on Application Note 4, Durham
contends, reflected legal error because the sentencing reduc-
tions he received had nothing to do with any departure af-
forded at his original sentencing, but instead followed en-
tirely from subsequent retroactive amendments to the guide-
lines.
At one level, Durham is correct. He is right that Applica-
tion Note 4 to § 7B1.4 permits “an upward departure” for a
revocation sentence “[w]here the original sentence was the re-
sult of a downward departure” or “a charge reduction that

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No. 18-3283 7
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 understand-
ing, Durham is on sound ground calling that view a legal er-
ror. But it is equally plain that not all procedural errors re-
quire resentencing. See United States v. Salgado, 917 F.3d 966,
969–70 (7th Cir. 2019). And that is especially so where, as here,
the district court not only properly computed the advisory
sentencing range but also heard no objection from Durham to
the reference about Application Note 4 to § 7B1.4. To the con-
trary, defense counsel affirmatively agreed with the district
court’s statement, saying, “[t]hat’s a point well taken, Judge.”
In these circumstances, our review of the district court’s erro-
neous comment about Application Note 4 is only for plain er-
ror. See United States v. Godinez, 955 F.3d 651, 654 (7th Cir.
2020).
To grant relief under this standard of review, we must find
that “there was an error, that it is ‘clear’ or ‘obvious,’ and that
it affected [his] substantial rights.” Id. (citing United States v.
Olano, 507 U.S. 725, 732–34 (1993)). The last condition requires
Durham to “show a reasonable probability that, but for the
error, the outcome of the proceeding would have been differ-
ent.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05
(2018) (quoting Molina-Martinez v. United States, 136 S. Ct.

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8 No. 18-3283
1338, 1343 (2016)). Even then, we will correct the forfeited er-
ror only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 1905 (quoting Mo-
lina-Martinez, 136 S. Ct. at 1343).
Having reviewed the entirety of the sentencing transcript,
see United States v. Colon, 919 F.3d 510, 519–20 (7th Cir. 2019),
we are convinced that the district court’s erroneous state-
ments was harmless. See United States v. Prado, 743 F.3d 248,
253 (7th Cir. 2014) (citing United States v. Abbas, 560 F.3d 660,
667 (7th Cir. 2009)). After its brief and limited reference to Ap-
plication Note 4 to U.S.S.G. § 7B1.4, the district court never
returned to the Sentencing Guidelines in any way, much less
to any discussion (direct or otherwise) of the application note.
Read as a whole, the sentencing transcript leaves us of the
firm conviction that the district court selected the 30-month
revocation sentence by applying the § 3553(a) factors and,
most especially, considering the “nature and circumstances”
of Durham’s supervised release violations, foremost the vio-
lent assault of his former girlfriend.
To be sure, it is fair to read the transcript to include the
district court evincing concern that, upon his release from im-
prisonment for his underlying drug offense, Durham failed to
take full advantage of his newfound liberty and instead “fell
back off into criminality.” But no aspect of this reasoning sug-
gests the district court had selected the 30-month revocation
sentence because of Durham’s receipt of two reductions in his
original 35-year sentence. All the district court seemed to be
saying, and even then not all that directly, was that Durham
had the good fortune of seeing his original sentence reduced
to 20 years but then failed to take advantage of that benefit
and instead returned to committing crimes, including a

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No. 18-3283 9
violent domestic battery. Put differently, the district court
could reasonably conclude that Durham “squandered” his
early release, Wade, 890 F.3d at 633, through his “disregard”
and “lack of respect” for the law, United States v. Allgire,
946 F.3d 365, 367 (7th Cir. 2019). See also United States v. Pa-
dilla, 618 F.3d 643, 646 (7th Cir. 2010) (allowing for an upward
variance where the defendant “had the opportunity to turn
his life around and to show his respect for the law and in
every case he failed to do so”). Such reasoning was consistent
with an analysis of Durham’s history and characteristics un-
der § 3553(a).
III
Nor do we see any substantive error in Durham’s sen-
tence. District courts have “more than the usual flexibility in
this context.” United States v. Berry, 583 F.3d 1032, 1034
(7th Cir. 2009) (internal quotation marks omitted). Thus, our
review for substantive reasonableness is “highly deferential”
and we will reverse only if the sentence is “plainly unreason-
able.” United States v. Boultinghouse, 784 F.3d 1163, 1177
(7th Cir. 2015). The sentence here was not plainly unreasona-
ble. The 30-month sentence, although more than double the
high-end of the advisory range, was well within the statutory
maximum of 60 months. Moreover, the district court’s selec-
tion was entirely consistent with its assessment of the gravity
of Durham’s conduct, the need to protect the public, and the
judge’s determination that a serious sentence was necessary
to deter Durham from future violations.
For these reasons, we AFFIRM.

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10 No. 18-3283
R IPPLE , Circuit Judge, concurring. I concur in the judg-
ment, but reach the same result by way of a somewhat dif-
ferent path.
A.
Mr. Durham was sentenced in 1997 to 420 months’ im-
prisonment for crack-cocaine offenses. His sentence was
twice reduced after the Guidelines for crack cocaine were
amended. Mr. Durham was released from prison in 2015,
but in 2018 violated the terms of his supervised release in
several serious ways. Based on the nature of his violations,
the sentencing guidelines range was eight to fourteen
months, and his statutory maximum penalty was sixty
months.
At the outset of Mr. Durham’s revocation hearing, the
district court reviewed the charged violations of supervised
release and then reviewed the sentence that Mr. Durham
was facing. The court stated:
Q: All right. Sir, if I find by a preponderance of
the evidence that you committed these viola-
tions, the most serious of the violations is a
Grade B violation.
With a criminal history category of three,
the guideline range for possible incarceration
and imprisonment is eight to 14 months.
Do you understand that?
A: Yes.
Q: Do you also understand that under the
guidelines, sir, because your original sentence
was reduced, that the guidelines allow for an

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No. 18-3283 11
upward variance on that guideline range up to
the statutory maximum. In other words, if I
find by a preponderance of the evidence that
you committed any of these violations, I can
sentence you anywhere from eight to 60
months. Do you understand that?
A: Yes.1
After this, the court heard approximately eighty pages of tes-
timony concerning Mr. Durham’s violations while on super-
visory release.
The court made explicit findings of fact concerning the
violations and then turned to the imposition of sentence.
Mr. Durham’s counsel began his argument by noting that
Mr. Durham had served “every day of [a] 240 month[]” sen-
tence.2 At this point, the court asked: “What does that have
to do … with what I’m talking about here? The guideline al-
lows 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 amend-
ments, and then a second time. That is what the sentencing
guideline speaks to.”3 To this, Mr. Durham’s counsel re-
sponded: “That’s a point well-taken, Judge,” and went on to
his other arguments.4
1 R.266 at 8–9.
2 Id. at 106.
3 Id.
4 Id.

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12 No. 18-3283
After hearing arguments, the court then imposed a sen-
tence of thirty months. It explained the basis for its decision
accordingly:
You are here because of what happened in
April of 2018, basically, and June and July of
2018. That, in and of itself, is enough.
Because one of the factors that I have to
take into consideration is the nature and the
circumstances of the offenses or the violations.
Sir, you violated your supervised release with
domestic violence. This is not an Administra-
tive violation.
I have found by a preponderance of the ev-
idence that you did in fact subject Miss Gaddie
to domestic violence on April 15th, 2018. I
heard her description. I listened to the 9-1-1
tape. I heard the 9-1-1 call from her neighbor. It
was a violent act.
You could have kept your nose clean and
you could have been compliant for nine years
and 364 days of your 10-year supervised re-
lease and committed this act and you would be
violating, and rightfully so, because of the na-
ture and circumstances of the offense.
The other thing I find significant in the cir-
cumstances of the offense, sir, is even in your
interaction with the Mount Vernon police of-
ficers during the time of your arrest in July
2018, you were belligerent. And those interac-
tions—and what that all goes to is, it shows

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No. 18-3283 13
that there is lacking in you a respect for the
law. There is a need to promote a respect for
the law. There is a need to impose a sentence
that would deter you from future crimes, be-
cause obviously you committed crimes. The
Court is concerned with the need to protect the
public from you because of your conduct—
because of your violation conduct.
You—the Court found by a preponderance
of the evidence that you were involved in crim-
inality and involved in either the theft of—
certainly the theft of all this expensive clothing.
So the bottom line is, I acknowledge what
you did for the first three years, but you fell
back off into criminality. And you did so in
such a way that the circumstances of your vio-
lations tell this Court that there is a need for a,
a serious disposition and sentence; one that
will have the effect of deterring you from fu-
ture conduct. What you did—I can’t give a slap
on the wrist for what you did, sir. It’s serious.
And so it is the judgment of this Court that
the defendant’s supervised release shall be re-
voked and sentence shall be imposed as fol-
lows:
Pursuant to the Sentencing Reform Act of
1984, it is the judgment of the Court that the
defendant Marcus Costello Durham is hereby
committed to the custody of the Bureau of

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14 No. 18-3283
Prisons to be imprisoned for a term of 30
months.5
B.
Mr. Durham maintains that the district court erred when
it based its decision to impose a sentence in excess of the
guideline range on the fact that he received two prior reduc-
tions in his sentence. He interprets the district court’s com-
ments concerning its ability to impose an upward variance
as invoking U.S.S.G. § 7B1.4 application note 4, which pro-
vides: “Where the original sentence was the result of a
downward departure (e.g., as a reward for substantial assis-
tance), or a charge reduction that resulted in a sentence be-
low the guideline range applicable to the defendant’s under-
lying conduct, an upward departure may be warranted.”
Mr. Durham submits that this policy statement has no bear-
ing on his situation: the reductions in his sentence were not
the result of downward departures based on substantial as-
sistance nor were they the result of charge reductions. Ac-
cording to Mr. Durham, the district court incorrectly relied
on this application note as a basis for giving him an
above-guidelines sentence, and, therefore, we should re-
mand for resentencing.
1.
It is very difficult to conclude, given this record, that the
application note played no role in the district court’s selec-
tion of a sentence. Only moments before sentencing
Mr. Durham, the court noted that his prior reductions al-
5 Id. at 110–11.

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No. 18-3283 15
lowed for an upward variance. Indeed, when read as a
whole, the record supports the view that the district court
believed that the application note provided explicit authority
to go above the guidelines range. Where, as here, the objec-
tive evidence of record reveals the basis upon which the dis-
trict court acted, we need to be very circumspect in suggest-
ing that, despite what the district court said, the articulated
consideration did not play a part in its decision. At some
point, such an exercise in attributing a different, subjective
meaning to the district court’s objective statement becomes
nothing more than appellate fact-finding.
2.
The district court said what it said. Whether the district
court was wrong in its reading of note 4 is a matter open to
reasonable debate. Certainly, a strict “plain wording” read-
ing of the text limits its application to defendants who have
received a previous “downward departure” or a “charge re-
duction.” However, it also may be read as a general admoni-
tion that the sentencing court may consider a defendant’s
lack of appreciation for earlier reductions in the length of his
incarceration that allowed him to move on with his life. If
read more broadly, then a defendant who squandered an
early release under 18 U.S.C. § 3582(c)(2) by violating his re-
lease conditions surely falls within the ambit of the note’s
purpose and intent. Notably, § 3582(c)(2) is not entirely dis-
similar to the sentencing reductions mentioned in note 4. A
§ 3582(c)(2) reduction is not a reduction granted automatical-
ly, but one subject to the discretion of the district judge. See
18 U.S.C. § 3582(c)(2) (“[I]n the case of a defendant who has
been sentenced to a term of imprisonment based on a sen-
tencing range that has subsequently been lowered by the

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16 No. 18-3283
Sentencing Commission pursuant to 28 U.S.C. 994(o) … the
court may reduce the term of imprisonment … .” (emphasis
added)); United States v. Purnell, 701 F. 3d 1186, 1189–90 (7th
Cir. 2012); United States v. Neal, 611 F.3d 399, 401 (7th Cir.
2010). It is “completely acceptable” for a district court to sen-
tence a defendant above the guidelines range when “previ-
ous leniency ha[s] not worked for the defendant.” United
States v. Wade, 890 F.3d 629, 633 (7th Cir. 2018). Indeed, our
colleagues in the Sixth Circuit have held explicitly that an
upward variance can be premised, at least in part, on a fail-
ure to take advantage of a reduction of sentence under
§ 3582. See United States v. Wilson, 630 F. App’x 575, 579–80
(6th Cir. 2015).
3.
Even if we accept Mr. Durham’s argument that applica-
tion note 4 cannot be read as encompassing sentence reduc-
tions under § 3582, the district court nevertheless has the au-
thority to impose an above-guidelines sentence when it be-
lieves that a defendant has squandered an earlier opportuni-
ty to make progress in rejoining society. The guideline for
revocation of supervised release, like every other guideline,
is advisory. Although the district court must start from the
correct guideline range (which the court did here), it can im-
pose a sentence above or below that guideline based on the
factors set forth in § 3553(a)6 so long as it stays within the
6 See, e.g., United States v. Warner, 792 F.3d 847, 855 (7th Cir. 2015) (“[T]he
guidelines are merely advisory. While the § 3553(a) analysis still begins
with a consideration of the guidelines, it does not end there. … The
guidelines range is only ‘a rough approximation of sentences that might
achieve § 3553(a)’s objectives’ in the ‘mine run of cases.’ It supplies ‘the
(continued … )

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No. 18-3283 17
statutory range (here sixty months).7 In short, the general
authority of the district court to take into account a defend-
ant’s lack of cooperation with past opportunities parallels
the more particular authority articulated in application note
4.
Here, the district court clearly had the authority to con-
sider the defendant’s lack of cooperation and to impose a
sentence higher than a guideline sentence. An above guide-
lines sentence for failure to take advantage of prior favorable
sentencing decisions serves the purposes of 18 U.S.C.
§ 3553(a). See Wilson, 630 F. App’x at 580. (“[T]he district
court was permitted to consider Wilson’s repeated failure to
take advantage of prior favorable decisions in considering
whether a within-guidelines sentence would serve the pur-
poses of section 3553(a).”). In short, even if the district court
misapprehended the source of its authority, it nevertheless
acted within its authority and for a reason compatible with
§ 3553(a), the governing statute. For this reason, I join the
judgment of the court.
( … continued)
starting point and the initial benchmark,’ but nothing more.” (quoting
Rita v. United States, 551 U.S. 338, 350–51 (2007), and Gall v. United States,
552 U.S. 38, 49 (2007), respectively)).
7 I do not see any indication in the record that the district court was ever
under the misapprehension that note 4 compelled it to impose an up-
ward variance or that the note even suggested one. Indeed, the language
of the note seems to make clear that the district court has complete dis-
cretion.

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