Opinion
23-3841
06-04-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT PAUL DURRELL, Defendant-Appellant.
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
Before: SUTTON, Chief Judge; McKEAGUE and BUSH, Circuit Judges.
OPINION
McKEAGUE, Circuit Judge.
Robert Durrell appeals the district court's decision to revoke his supervised release and sentence him to 14 months in prison. But binding precedent squarely forecloses Durrell's argument. We AFFIRM.
I.
Robert Durrell started a term of supervised release in 2019 after serving a federal prison sentence. Durrell's supervised release was conditioned on his refraining from committing more crimes. But just a few years later, he robbed a convenience store at gunpoint.
The district judge revoked Durrell's supervised release after Durrell admitted to violating his release conditions. The government asked for a sentence at the top of the guidelines range, citing the serious nature of Durrell's violation. It also made deterrence and public-safety arguments. The district judge agreed with the government's arguments and sentenced Durrell to 14 months' imprisonment. She added that the sentence "reflects the seriousness of [Durrell's] conduct and shows respect for the law." Hr'g Tr., R.18 at PageID 89. Durrell now appeals.
Durrell didn't object to the district court's sentencing decision. That normally would trigger plain-error review on appeal. But the more forgiving abuse-of-discretion standard applies here because the district court never afforded Durrell an opportunity to object during his hearing. See United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004).
II.
Durrell's sole argument on appeal is that the district judge relied on a prohibited sentencing consideration. Under 18 U.S.C. § 3583(e), district courts must consider certain factors when revoking a defendant's supervised release. That statute cross-references most of the § 3553(a) sentencing factors but omits § 3553(a)(2)(A)-the factor directing courts to impose sentences that "reflect the seriousness of the offense," "promote respect for the law," and "provide just punishment." Thus, Durrell argues, the district judge erred by considering that factor.
But as Durrell acknowledges, we've already rejected his argument in binding caselaw. See United States v. Lewis, 498 F.3d 393 (6th Cir. 2007), cert. denied, 555 U.S. 813 (2008); United States v. Esteras, 88 F.4th 1163 (6th Cir. 2023), reh'g en banc denied, 88 F.4th 1170 (6th Cir. 2023) and 95 F.4th 454 (6th Cir. 2024). Lewis held that district courts can consider the § 3553(a)(2)(A) factor in supervised-release revocations. Among other things, it reasoned that § 3583(e)'s text didn't create an exclusive list of permissible considerations. Lewis, 498 F.3d at 399-400. Last year's Esteras decision reinforced Lewis's reasoning and rebuffed arguments that intervening Supreme Court precedent undermined its holding. Esteras, 88 F.4th at 1167-68. Because Lewis and Esteras bind us, we cannot rule in Durrell's favor. See United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017).
In two postLewis (but preEsteras) opinions, the Supreme Court noted that courts cannot consider the need for "retribution" when imposing an initial supervised-release term. Tapia v. United States, 564 U.S. 319, 326 (2011); Concepcion v. United States, 597 U.S. 481, 494 (2022). Esteras deemed the Court's observation consistent with Lewis's rule. Although Esteras focused on Tapia, its logic applies equally to Concepcion. See Esteras, 88 F.4th at 1168.
The district court's order is AFFIRMED.