Petition for Writ of Certiorari — Robert Paul Durrell, Petitioner v. United States
Supreme Court briefAug 27, 2024
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APPENDIX
TABLE OF CONTENTS
APPENDIX A: Sixth Circuit opinion, June 4, 2024 ................................................... 1a
APPENDIX B: Northern District of Ohio order, October 12, 2023............................ 3a
APPENDIX C: Northern District of Ohio hearing transcript, October 12, 2023 ...... 4a
Appendix A
NOT RECOMMENDED FOR PUBLICATON
File Name: 24a0234n.06
Case No. 23-3841
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
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Plaintiff-Appellee,
v.
ROBERT PAUL DURRELL,
Defendant-Appellant.
FILED
Jun 04, 2024
KELLY L. STEPHENS, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
OPINION
Before: SUTTON, Chief Judge; McKEAGUE and BUSH, Circuit Judges.
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
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Appendix A
No. 23-3841, United States v. Durrell
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.1
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.2 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).
The district court’s order is AFFIRMED.
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).
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In two post-Lewis (but pre-Esteras) 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.
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Appendix B
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
-vsROBERT PAUL DURRELL,
Defendant,
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JUDGE PATRICIA A. GAUGHAN
CASE NO.: 1:20CR375
ORDER
A Supervised Release Violation Hearing was held on October 12, 2023. Assistant U. S.
Attorney Elizabeth Crook was present on behalf of the Government. Defendant Robert Paul Durrell
was present and represented by his counsel Christian Grostic. Probation Officer Matti Liebler was
present on behalf of the Probation Department. The defendant waived his right to an evidentiary
hearing and admitted to violating the conditions of his supervised release, to wit: new law violation.
The Court finds this violation to be a Grade B.
This Court hereby sentences the defendant, Robert Paul Durrell, to the custody of the
Bureau of Prisons for a period of 14 months to run consecutive to his state sentence. The Court does
not order further supervision.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
Patricia A. Gaughan
United States District Court Judge
Date October 12, 2023
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Appendix C1
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION AT CLEVELAND
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UNITED STATES OF AMERICA,
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Plaintiff,
vs.
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ROBERT PAUL DURRELL,
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Defendant.
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CASE NO. 1:20-cr-375
OCTOBER 12, 2023
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TRANSCRIPT OF SUPERVISED RELEASE VIOLATION PROCEEDINGS
HELD BEFORE THE HONORABLE PATRICIA A. GAUGHAN
SENIOR UNITED STATES DISTRICT JUDGE
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APPEARANCES:
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For the Plaintiff:
Elizabeth M. Crook, AUSA
For the Defendant:
Christian J. Grostic, Esq.
Probation Officer:
Matti Liebler
Official Court Reporter:
Lance A. Boardman, RDR, CRR
United States District Court
801 West Superior Avenue
Court Reporters 7-189
Cleveland, Ohio 44113
216.357.7019
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Proceedings recorded by mechanical stenography; transcript
produced by computer-aided transcription.
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Appendix C2
10:33:11
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(In open court at 10:33 a.m.)
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THE COURT:
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We are here in the matter of the United States of
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America vs. Robert Paul Durrell, Case Number 20-cr-375.
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Present in court is Mr. Durrell.
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Is that correct, sir?
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THE DEFENDANT:
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THE COURT:
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THE DEFENDANT:
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THE COURT:
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THE COURT:
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ATTORNEY GROSTIC:
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THE COURT:
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ATTORNEY GROSTIC:
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THE COURT:
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AUSA CROOK:
Good morning, Your Honor.
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THE COURT:
On behalf of Probation, Ms. Matti
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Mr. Durrell, please approach the
podium with counsel.
Yes, ma'am.
And did I pronounce your last name
correctly?
Yes, ma'am.
Represented by his attorney,
Mr. David Johnson.
ATTORNEY GROSTIC:
Christian Grostic, Your
Honor.
I apologize.
It's okay.
I apologize.
Not a problem.
On behalf of the Government,
Ms. Elizabeth Crook.
Liebler.
PROBATION OFFICER LIEBLER:
Good morning, Your
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Appendix C3
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Honor.
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purposes of a supervised release violation hearing.
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before me a violation report dated March 13 of this year and
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a supplemental information report dated September 29 of this
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year.
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violation.
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robbery, a felony of the second degree, with firearm
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specifications.
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Lorain Correctional Institution, followed by 18 months up to
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three years of post-release control.
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this Court to hear testimony regarding this alleged
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violation, or does your client waive the taking of testimony
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and admit?
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with Mr. Durrell, and he would admit the violations per his
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plea in state court.
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THE COURT:
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THE DEFENDANT:
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THE COURT:
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fact find you to be in violation of supervised release.
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find that the violation is a grade B violation.
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criminal history category of III, you are looking at an
THE COURT:
We're here today, sir, for
I have
According to these reports, there is one alleged
On August 23 you entered a plea of guilty to
The sentence was six to eight years at
I'm going to first turn to counsel.
ATTORNEY GROSTIC:
Do you wish for
Your Honor, I've spoken
Sir, is that correct?
Yes, ma'am.
Based upon your admission, I do in
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And with a
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Appendix C4
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advisory sentencing guideline range of 8 to 14 months.
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THE COURT:
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ATTORNEY GROSTIC:
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violation.
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and it always strikes me that Section 3583, which governs
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supervised release violations, among the factors to consider
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it omits Section 3553(a)(2)(A), which is the need for
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punishment, respect for the law, and to reflect the
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seriousness of the offense.
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And the Supreme Court last year in Concepcion vs.
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United States said that Congress has expressly precluded
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district courts from considering the need for punishment in
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this context.
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offense.
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state court.
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for punishment, and it's imposed a substantial punishment,
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six to eight years in prison, followed by, as the Court
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noted, time on post-release control.
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On the issue of sentencing, would you like me to first
turn to you or your client?
ATTORNEY GROSTIC:
I'd like to speak first,
Your Honor.
Go right ahead.
Thank you, Judge.
And of course, we are here on a supervised release
I frequently turn to the statute first again,
That's at 142 Supreme Court 2400.
I say that just because we are here on a serious
Mr. Durrell has admitted both in this Court and in
And the state court of course was the forum
I also in this context, though, turn to the violation
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Appendix C5
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report from March, March 13, that the Court already
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referenced.
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started in October of 2019.
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violations in the meantime.
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residence.
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community part of RDAP.
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what happened?
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members die all at approximately the same time, and as he
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described it to me, he fell apart.
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obviously, at all.
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positive things that he did that reflects that he is
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somebody who can turn his life around for a significant time
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period.
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tough times that we all face.
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significant state sentence and post-release control from the
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state to work on that and to pay for his crimes here.
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So we ask, taking all that into account, that whatever
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sentence the Court imposes be run concurrent with the state
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and that the state now take jurisdiction over post-release
And I noted that Mr. Durrell, his supervision
Here we are in 2023?
He was working in the meantime.
No
He had a steady
He had completed RDAP and the post -- the
So part of the question here is
And we do ask the Court to take all those positive
things into account as well as the state sentence.
But in speaking to Mr. Durrell, he had several family
That's not an excuse,
But I do just want to note for the Court all those
He obviously needs to find a way to push through those
But he's going to have a
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Appendix C6
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control and his transition into the community from there.
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THE COURT:
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THE DEFENDANT:
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much covered everything.
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was doing everything I should have been doing, and I was
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doing very good out there.
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I made over six figures legally and doing everything right,
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and I had a good job and I was excelling at my job.
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elders, within a couple -- a 12-month period.
My mother.
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My father died the year I got out of prison.
My daughter's
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mother died the week I came home from prison.
And then the
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ones I had left, my mother, my godfather, and my grandmother
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all died within a 90-day period.
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man.
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THE COURT:
On behalf of the Government?
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AUSA CROOK:
Judge, I think the facts and
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circumstances of the violation, I don't think a concurrent
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sentence actually would reflect the serious nature of what
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happened.
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happened.
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Thank you.
Sir, do you have anything to say?
Your Honor, my attorney pretty
I was doing -- well, I felt like I
Last year was my first year that
I just lost my whole -- everybody in my family, all my
I just -- I just lost it,
And I apologize to the Court and everybody.
That's
it.
And I just overheard the question of what
It clearly states in the report that Mr. Durrell
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Appendix C7
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robbed someone by gunpoint on March 6, 2023.
Not only did
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he rob this person, it says in the report that's dated on
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March 13, 2023, he said that he had already killed two
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people, check the news, and he had taken cash from that
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person.
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warrant for his residence, they found not only a black
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Airsoft pistol, they also found pills, white powder
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substance, drug paraphernalia, crack pipes, as well as the
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clothing that was worn during the robbery.
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had a lengthy sentence with this Court.
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previously for conspiracy and served 56 months for that
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violation.
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release violation in another case, but he's still not
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getting the message.
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risk.
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violation where he tests positive for marijuana or fails to
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do something minor.
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involving a firearm.
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circumstances that caused him to make this choice, that's
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just every day.
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circumstances, but they're not picking up a firearm and
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robbing someone at gunpoint while on federal supervision
And then once State Police obtained a search
I understand that he has a lengthy sentence, but he
He was sentenced
And some of it was consecutive to a supervised
And the violation here put other people at harm and
He robbed someone at gunpoint.
This isn't a
We're talking about a grade B violation
And the notion that because he had some difficult
Numerous people have difficult
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following a lengthy term of federal imprisonment.
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suggest on behalf of the Government the 14 months that's
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described under the guideline provisions.
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Sentencing Guidelines 7B1.3(f), it states that any term of
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imprisonment imposed upon the revocation of probation or
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supervised release shall be ordered to be served
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consecutively to any sentence of imprisonment that the
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person under supervision is serving whether or not the
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sentence of imprisonment being served resulted from the
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conduct that is the basis of the revocation of probation or
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supervised release.
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So, Judge, based upon the circumstances of the
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violation, the guidelines provision that provides the 14
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months, which is the higher end of the range, and the fact
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that the guidelines also provide that it should be served
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consecutively, we would request 14 months consecutively with
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no period of supervised release to follow.
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THE COURT:
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PROBATION OFFICER LIEBLER:
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Honor.
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Cambeiro.
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complete four years of supervised release.
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a very serious violation given the nature of the conduct
So, Judge, with that I would suggest -- I would
And also under
On behalf of Probation?
Thank you, Your
I'm covering this hearing on behalf of Amanda
It appears that Mr. Durrell did almost successfully
However, this is
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underlying it.
Although he was successful for what appeared
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over three years, I mean, this cannot go unnoticed, and
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appropriate sanction should be taken.
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THE COURT:
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last word if you so choose.
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THE DEFENDANT:
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THE COURT:
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ATTORNEY GROSTIC:
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previously raised, Your Honor.
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sir, that you be committed to the custody of the Bureau of
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Prisons to be imprisoned for a term of 14 months consecutive
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to the state sentence.
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supervision.
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not greater than necessary to satisfy the purposes of
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sentencing.
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The bottom line is I agree with the Government.
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sentence of 14 months reflects the seriousness of this
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conduct and shows respect for the law.
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Good luck to you, sir.
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THE DEFENDANT:
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THE COURT:
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to appeal, and it will be -- costs will be borne by the
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Government.
THE COURT:
Anything further?
You get the
Me?
No, your counsel.
Nothing that I haven't
Thank you.
It is the judgment of this Court,
There will be no further
I do in fact find the sentence to be sufficient but
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Thank you, Your Honor.
Obviously, you do have the right
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Good luck.
(Proceedings adjourned at 10:43 a.m.)
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C E R T I F I C A T E
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I certify that the foregoing is a correct transcript
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of the record of proceedings in the above-entitled matter
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prepared from my stenotype notes.
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/s/ Lance A. Boardman
LANCE A. BOARDMAN, RDR, CRR
October 24, 2023
DATE
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.