United States v. Griffin
| Decision Date | 24 October 2013 |
| Docket Number | No. 12-3282,12-3282 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. THOMAS GRIFFIN, JR., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Kan.)
ORDER AND JUDGMENT*Before HARTZ, BALDOCK, and EBEL, Circuit Judges.**
Defendant Thomas Griffin pleaded guilty to one count of wire fraud in violation of 18 U.S.C. § 1343. Applying the 2011 Guidelines Manual, the presentence report (PSR) assigned him a total offense level of 16 and a criminal history category of III, yielding a Guideline sentencing range of 27-33 months. See U.S.S.G. § 5A. At sentencing, the district court varied upward and sentenced Defendant to 60 months' imprisonment. On appeal, Defendant argues his sentence is procedurally and substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.
Defendant acknowledged in his plea agreement that his codefendant, Jordan Smith, had burglarized residences and businesses and had purchased property knowing it was stolen. Defendant then helped Smith sell these items on Craigslist by (1) letting Smith use Defendant's phone number as a point of contact for prospective buyers and (2) serving as a conduit between Smith and the buyers. The PSR indicated Smith and Defendant's scheme involved approximately thirty residential burglaries, and some burglaries and thefts from cars and businesses. The PSR also noted items taken during the residential burglaries were later found at Defendant's residence.
The PSR also listed Defendant's criminal history, which included 19 prior convictions. Most of these convictions were for traffic or related violations. Three convictions were more serious. These included (1) a 2006 juvenile conviction for residential burglary when Defendant was fifteen, (2) a 2007 juvenile conviction for auto burglary, and (3) a 2009 adult conviction for petit theft of a lawnmower from the backyard of a residence. Defendant was still on probation for this 2009 conviction when he committed the instant offense. The PSR also listed numerous arrests not resulting in conviction, including charges for misdemeanor theft, possession of marijuana, cruelty to animals, and kidnapping. The PSR calculated a 27-33 month Guidelines sentencing range based on the nature of the wire fraud, Defendant's acceptance of responsibility, and his criminal history. The PSR also stated Defendant believed he was addicted to Alcohol and Lortab, a pain killer; however, he made no efforts to seek treatment for these addictions prior to sentencing.
Prior to sentencing, the district court filed a letter pursuant to Fed. R. Crim. Pro. 32(h) stating it was considering an upward variance from the Guidelines range. The court justified the possible variance based on a number of 18 U.S.C § 3553(a) factors. These included: (1) Defendant's criminal history, which indicated he was an individual undeterred from criminal activity not withstanding numerous run-ins with the law; (2) the need to protect the public from further crimes; and (3) Defendant's need for substance abuse counseling, combined with his lack of interest in participating in such counseling.
In response to the 32(h) letter, Defendant provided a memorandum stating he wished to postpone counseling until he went to prison because he was employed full-time and was taking care of his children and his sick mother. Defendant and two others also testified to these facts at his sentencing hearing. The court also reviewed letters submitted by Defendant's relatives and pastor stating he had turned his life around.
At sentencing, the court adopted its 32(h) letter and sentenced Defendant to 60 months' imprisonment plus two years of supervised release with a special condition that he attends a substance abuse program. The court stated: The court also made sure its 32(h) letter was docketed for review. Defendant did not object to the court's sentencing procedure. On appeal however, he now argues that his sentence is (1) procedurally unreasonable because the court failed to adequately explain its upward variance and (2) substantively unreasonable because the factors the court cited do not justify its upward variance. We address each argument in turn.
Defendant argues the district court committed procedural error in four ways. According to Defendant, the court (1) failed to address his non-frivolous arguments for leniency; (2) based its decision on clearly-erroneous facts; (3) failed to adequately explain the chosen sentence; and (4) failed to consider one of the § 3553(a) factors, namely, avoiding unwarranted sentencing disparities under § 3553(a)(6). Defendant did not preserve these procedural challenges below. Accordingly, we review them only for plain error. United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012). Plain error requires that Defendant show: (1) error; that is (2) obvious under current well-settled law; (3) affected the Defendant's substantial rights; and (4) seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id.
A sentencing court must "address, in its statement of reasons, the material, non-frivolous arguments made by the defendant." United States v. Pinson, 542 F.3d 822, 833 (10th Cir. 2008). The court need not, "recite 'any magic words' to demonstrate that it has considered all of the relevant arguments, but we will not 'presume the district court weighed a party's arguments in light of the § 3553(a) factors where the record provides no indication that it did so.'" Id. (quoting United States v. Sanchez-Juarez, 446 F.3d 1109, 1116 (10th Cir. 2006)) (emphasis added). Rather, when a defendant makes a non-frivolous argument for leniency, the court "must somehow indicate" it considered his arguments and did not rely solely on the PSR or the Guideline range. See United States v. Jarrillo-Luna, 478 F.3d 1226, 1230 (10th Cir. 2007).
Defendant relies on Sanchez-Juarez to argue the district court failed to address his non-frivolous arguments for mitigation. This reliance is misplaced. In Sanchez-Juarez, the district court failed to address the defendant's non-frivolous arguments for leniency at all, and instead simply restated its reliance on the PSR and sentencing Guidelines when sentencing the defendant. Sanchez-Juarez, 446 F.3d at 1112. Here, the court specifically stated it had reviewed the witness testimony, the letters submitted by Defendant, and Defendant's sentencing memorandum. Further, in its 32(h) letter, it stated that it would not rely exclusively on the PSR. Thus, unlike Sanchez-Juarez, the court here committed no error, let alone plain error, as it gave some indication it had considered and then rejected Defendant's arguments for leniency.
Sentencing based on clearly erroneous facts constitutes procedural error. Gall v. United States, 552 U.S. 38, 51 (2007). Defendant's only argument that the court relied on clearly erroneous facts appears in a footnote on page 17 of his opening brief. He argues the district court relied on a clearly erroneous fact when it did not retreat from the assertion in its 32(h) letter that Defendant was not interested in participating in substance abuse counseling. Defendant argues this is clearly erroneous in light of the evidence he submitted that shows he had not declined treatment, but instead wished to postpone it until he entered prison because he had no time to engage in such treatment.
Defendant was released on bond more than one year before sentencing. In that time, nothing in the record suggests he made any effort to find out how long a treatment program might last or the time commitment such a program might entail. Given theabsence of any effort on Defendant's part to even research treatment programs, the court's conclusion that he was not truly interested in substance abuse counseling was not clearly erroneous. Thus, the court did not err.
Defendant cites an unreported case for the proposition that, "if the court imposes a sentence outside the Guidelines range, [18 U.S.C. § 3553(c)(2)] requires the court to provide 'the specific reason for the imposition of a sentence different from [the Guidelines range].'" United States v. Ruiz-Velgara, 302 F. App'x 765, 767 (10th Cir. 2008) (quoting 18 U.S.C. § 3553(c)(2)). "We have never held, however, that the district court must list the reasons why it could have chosen a different sentence and then explain why it rejected them." United States v. Jarrillo-Luna, 478 F.3d 1226, 1230 (10th Cir. 2007) overruled on other grounds, United States v. Lopez-Macias, 661 F.3d 485 (10th Cir. 2011). Rather, under Gall, a sentencing explanation is adequate when it allows "for meaningful review" and "promote[s] the perception of fair sentencing." Gall, 552 U.S. at 50 (2007). "[A]lthough a district court must provide reasoning sufficient to support the chosen variance, it need not necessarily provide 'extraordinary' facts to justify any statutorily permissible sentencing variance." United States v. Smart, 518 F.3d 800, 807 (10th Cir. 2008) (emphasis in original). "Generally, when a sentence that varies from the advisory Guidelines range is nevertheless tethered to the Guidelines themselves by, taking into account, e.g., criminal history, offense characteristics, and offense levels,we . . . consider this a reasonable methodology." 1 United States v. Hall, 473 F.3d 1295, 1314 (10th Cir. 2007) (internal quotations omitted).
Here, the sentencing court tied its upward variance to the reasons in its 32(h) letter. This letter notes (1) Defendant's criminal history, which "strongly suggest[s] an individual who is undeterred from criminal activity notwithstanding his numerous contacts with the criminal justice system," (2) the need...
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