United States v. James Durgin

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 7, 2020
• Docket: 19-10449
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10449

Plaintiff-Appellee, D.C. No. 3:19-cr-00333-WHO-1

v. MEMORANDUM* JAMES MICHAEL DURGIN,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William H. Orrick, III, District Judge, Presiding

Submitted August 5, 2020**

Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.

James Michael Durgin appeals from the district court’s judgment and

challenges the 15-month sentence imposed following his guilty-plea conviction for

escape from custody, in violation of 18 U.S.C. §§ 751(a), 4082(a). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Durgin contends that the district court impermissibly lengthened his

sentence in order to promote his rehabilitation in violation of Tapia v. United

States, 564 U.S. 319 (2011). We review for plain error, see United States v. Grant,

664 F.3d 276, 279 (9th Cir. 2011), and conclude that there is none. The district

court’s recommendation that the Bureau of Prisons designate Durgin to a facility in

Massachusetts near his family who could support him when he is released was not

improper. See Tapia, 564 U.S. at 334 (district court does not run afoul of 18

U.S.C. § 3582(a) by recommending a specific prison facility for the defendant).

Moreover, while the court briefly referenced the need for the sentence to promote

rehabilitation, the record shows that rehabilitation played no role in the court’s

sentencing decision. Rather, the court selected a sentence at the bottom of the

Guidelines range, with no supervised release to follow, after considering only

proper sentencing factors, including the need to provide just punishment for the

offense and Durgin’s criminal history and characteristics. See 18 U.S.C. § 3553(a).

AFFIRMED.

2 19-10449