United States v. Octavius Durdley
CourtCourt of Appeals for the Eleventh Circuit
Date FiledOctober 29, 2026
Docket25-13948
StatusUnpublished
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Full Opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 25-13945
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OCTAVIUS LEE DURDLEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:25-cr-00004-AW-MAL-1
____________________
____________________
No. 25-13946
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
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2 Opinion of the Court 25-13945
versus
OCTAVIUS LEE DURDLEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:09-cr-00031-AW-MAL-1
____________________
____________________
No. 25-13948
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OCTAVIUS LEE DURDLEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:21-cr-00028-AW-MAL-1
____________________
Before NEWSOM, ABUDU, and ANDERSON, Circuit Judges.
PER CURIAM:
Octavius Durdley was convicted of failing to register as a sex
offender and for violating the conditions of his supervised release.
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25-13945 Opinion of the Court 3
He received a 72-month sentence for failing to register—an upward
variance from his guideline range of 21 to 27 months’ imprison-
ment—and 14-months’ imprisonment total for his violations of the
conditions of supervised release. He appeals both sentences.
First, Durdley argues that the district court plainly erred by
treating his underlying sex offense as a Tier II offense under the Sex
Offender Registration and Notification Act, 34 U.S.C. § 20911(2)–
(4), rather than a Tier I offense. Second, he argues that his sentences
were procedurally and substantively unreasonable because the dis-
trict court failed to properly consider the true nature and severity
of his underlying offense. 1 After careful review, we affirm.
I
Durdley argues that the district court plainly erred by classi-
fying his underlying child-pornography offense as a Tier II offense.
We review objections to sentencing calculations raised for
the first time on appeal for plain error. United States v. Bennett, 472
F.3d 825, 831 (11th Cir. 2006). The defendant must show that the
district court committed a plain error that affects his substantial
1 Durdley also moves for this Court to take judicial notice of three sentencing
transcripts in unrelated cases where his sentencing judge presided. He seeks
to use them to argue that, based on this judge’s track record, there is a reason-
able probability that his sentences would have been different if the district
court had applied a lower guideline range. This motion is DENIED. The
transcripts do not contain facts that are “not subject to reasonable dispute”—
they do not establish, as he argues, this judge’s sentencing habits. See United
States v. Bradley, 644 F.3d 1213, 1252 n.81 (11th Cir. 2011) (taking judicial notice
of easily identifiable facts).
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rights. Id. For an error to be plain, “it must be plain under control-
ling precedent or in view of the unequivocally clear words of a stat-
ute or rule.” United States v. Johnson, 694 F.3d 1192, 1195 (11th Cir.
2012) (citation modified).
Under the SORNA, sex offenses are classified largely based
on their severity. See 34 U.S.C. § 20911(2)–(4). A Tier I sex offense
is one that does not fall within a higher tier. Id. § 20911(2). A Tier
II sex offense includes those sex offenses, other than those in Tier
III, that are punishable by more than one year in prison and, as rel-
evant here, involve “production or distribution of child pornogra-
phy.” Id. § 20911(3)(B)(iii). Durdley was convicted of “receipt or
distribution or attempted receipt or distribution of child pornogra-
phy,” which he contends is a Tier I offense. He argues that this
Court should apply the categorical approach in deciding an of-
fender’s tier under the SORNA, and under that approach, his con-
viction is broader than that in Tier II because he could have been
convicted of receipt only, which is not a Tier II offense.
A party may not challenge a ruling as error if the party in-
vites it. United States v. Carpenter, 803 F.3d 1224, 1236 (11th Cir.
2015). The line between simply failing to object (triggering
plain-error review) and affirmatively inviting an error (precluding
appellate review altogether) is thin. See, e.g., United States v. Dortch,
696 F.3d 1104, 1112 (11th Cir. 2012). Durdley invited any error here
because: (1) his counsel in a prior sentencing for other violations of
conditions of supervised release said that his underlying offense
was Tier II; (2) when asked if there were any objections to the
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25-13945 Opinion of the Court 5
presentence report (which listed Durdley as a Tier II offender) at
this sentencing hearing, his counsel stated, “Not from the defense,
Your Honor”; (3) Durdley’s counsel expressly declined to raise at
this sentencing hearing issues regarding whether his underlying of-
fense involved distribution of child pornography; and (4) his coun-
sel stated, “No, Your Honor,” when asked if he had any objections
to the sentences imposed here. These comments are similar to the
one made in United States v. Thayer: We held there that the defend-
ant invited error because his counsel responded to the district
court’s affirmative solicitation of objections by saying, “I really
don’t object.” 204 F.3d 1352, 1355 (11th Cir. 2000).
Even if Durdley had not invited any error, the district court
did not plainly err by classifying his underlying offense as Tier II
under the SORNA because it is not clear and obvious under current
law that his offense is Tier I. See Johnson, 694 F.3d at 1195. We’ve
held that a noncategorical approach applies to some parts of the
SORNA, see United States v. Dodge, 597 F.3d 1347, 1351 (11th Cir.
2010) (en banc), but not others, see United States v. Vineyard, 945
F.3d 1164, 1171 (11th Cir. 2019). But Durdley does not cite any
binding authority that clearly establishes that the categorical ap-
proach should be used to determine the tier of an underlying of-
fense. A district court using a noncategorical approach could find
that his underlying offense involved distribution and thus was a
Tier II offense because the final judgment for his underlying offense
described it as “receipt or distribution or attempted receipt or dis-
tribution of child pornography” and the PSR from that sentencing
stated that the offense involved “a peer-to-peer file sharing network
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6 Opinion of the Court 25-13945
in which [Durdley] listed child pornography for distribution.” Ac-
cordingly, we affirm on this issue.
II
Durdley next argues that his sentences were procedurally
and substantively unreasonable because the district court failed to
properly consider the true nature and severity of his underlying of-
fense. And he argues that by preventing his witness from testifying
that Durdley did not distribute pornography, the court precluded
evidence that would have corrected its misunderstanding regard-
ing his underlying offense.
If a defendant does not object to the sentence’s procedural
reasonableness at sentencing, we review for plain error. United
States v. Owens, 96 F.4th 1316, 1320 (11th Cir. 2024). Durdley did
not object, so we review for plain error. When reviewing proce-
dural reasonableness, we ensure that the district court committed
no significant procedural error, including any of the following: im-
properly calculating the guideline range; treating the Guidelines as
mandatory; failing to consider the 18 U.S.C. § 3553(a) factors; se-
lecting a sentence based on clearly erroneous facts; or failing to ad-
equately explain the chosen sentence. United States v. Trailer, 827
F.3d 933, 936 (11th Cir. 2016). If the district court varied from the
defendant’s guideline range, it must offer a sufficient justification
to support that variance. United States v. Kuhlman, 711 F.3d 1321,
1326 (11th Cir. 2013); see also 18 U.S.C. § 3553(c)(2).
Durdley’s sentences were procedurally reasonable because
the district court did not base them on a clearly erroneous finding
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25-13945 Opinion of the Court 7
regarding his underlying offense. The court explained that “[Dur-
dley] is a person who has a conviction for possessing and distrib-
uting and receiving child pornography,” Sent’g Hearing Tr. at 16,
Dkt. No. 85, a conclusion that is not clearly erroneous because: (1)
the judgment entered for Durdley’s underlying offense stated that
he was convicted of “Receipt or Distribution or Attempted Receipt
or Distribution of Child Pornography”; and (2) the PSR for this sen-
tencing hearing stated that Durdley had been “convicted of Receipt
or Distribution or Attempted Receipt or Distribution of Child Por-
nography,” and Durdley did not object. Even if the district court
had committed plain error by finding that Durdley had been con-
victed of distribution, there is not a reasonable probability that he
would have received a different sentence without the error. The
court did not base its sentence on the specific fact that Durdley had
been convicted of distribution. See Bennett, 472 F.3d at 831–32.
Durdley’s argument that the court plainly erred by prevent-
ing him from introducing evidence regarding his underlying con-
viction is also unavailing. Durdley stated that he would not raise
at his sentencing hearing the issue of whether he had been con-
victed of distribution. Instead, Durdley moved the court to allow
a character witness. Durdley does not cite any authority that
clearly shows that a district court must allow a character witness at
a sentencing hearing for a defendant’s failure to register as a sex
offender to speak about the defendant’s underlying offense. Cf.
United States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).
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8 Opinion of the Court 25-13945
Durdley has also failed to show that his sentences are sub-
stantively unreasonable. We review the substantive reasonable-
ness of a sentence for abuse of discretion. United States v.
Oudomsine, 57 F.4th 1262, 1266 (11th Cir. 2023). A district court
abuses its discretion only when it “(1) fails to afford consideration
to relevant factors that were due significant weight, (2) gives signif-
icant weight to an improper or irrelevant factor, or (3) commits a
clear error of judgment in considering the proper factors.” Id. (ci-
tation modified).
Durdley’s sentences are substantively reasonable because
the district court properly stated that it considered all of the
§ 3553(a) factors, discussed several of the factors, and explained
why it did not believe that a sentence within the guideline range
sufficed. The district court stated that it based its sentence on:
(1) the need to promote respect for the law and deter Durdley from
continuing to violate it by refusing to register as a sex offender; (2)
the need to protect the public from someone who had been con-
victed of a child-pornography offense and repeatedly failed to reg-
ister; and (3) Durdley’s history and characteristics, including his fail-
ure to comply with the law and “sexual interest in children.” Sent’g
Hearing Tr. at 16, 23, Dkt. No. 85. The court properly justified its
variance by stating that it did not believe that a guideline sentence
would sufficiently protect the public or promote respect for the
law, as Durdley’s previous sentence did not deter him from failing
to register as a sex offender.
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Accordingly, we affirm the procedural and substantive rea-
sonableness of Durdley’s sentences.
* * *
For the foregoing reasons, we AFFIRM.