United States v. Griffin , 209 F. App'x 303 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4562
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL STEPHON GRIFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:92-cr-00074-F-2)
Submitted: November 22, 2006 Decided: December 11, 2006
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, Acting United States Attorney,
Jennifer P. May-Parker, Anne M. Hayes, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Stephon Griffin appeals the sentence of sixty
months imprisonment imposed by the district court upon revocation
of his supervised release. At the time of the revocation hearing,
Griffin was facing state charges of selling marijuana at his
workplace. He had previously violated the conditions of supervised
release, resulting in the court’s modification of his supervised
release and his confinement for ninety days in a community
corrections center. Griffin argues that the sentence was
unreasonable because the district court failed to give its reason
for imposing the maximum sentence. We affirm.
In Griffin’s case, the Chapter 7 policy statement
advisory range was 51-60 months. Because Griffin did not object to
the district court’s failure to explain the reason for his
sentence, this court’s review is for plain error. United States v.
Olano, 507 U.S. 725, 732 (1993); United States v. Hughes, 401 F.3d
540, 547 (4th Cir. 2005). In United States v. Crudup, 461 F.3d 433(4th Cir. 2006), petition for cert. filed, Nov. 3, 2006 (No. 06-
7631), we held that “revocation sentences should be reviewed to
determine whether they are ‘plainly unreasonable’ with regard to
those § 3553(a)1 factors applicable to supervised release
revocation sentences.” Id. at 437. Crudup mandates a two-step
analysis. First, the appellate court must decide whether the
1
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).
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sentence is unreasonable, either procedurally--for example, if the
district court gave an inadequate statement of reasons or failed to
make a necessary factual finding--or substantively, which could be
the case if the court relied on an improper factor or rejected
policies articulated by Congress or the Sentencing Commission. Id.at 438 (citing United States v. Moreland, 437 F.3d 424, 434 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006)).2 If the sentence is
unreasonable, the appeals court must decide whether it is plainly
unreasonable, using the same definition of plain as in “plain
error” analysis, that is, “clear” or “obvious.” Crudup, 461 F.3d
at 439 (quotation and citation omitted). While the district court
must consider the Chapter 7 policy statements, statutory
requirements, and the factors applicable to revocation sentences
under 18 U.S.C.A. § 3553(a), see 18 U.S.C. § 3583(e) (2000), the
district court ultimately has broad discretion to revoke the
previous sentence and impose a term of imprisonment up to the
statutory maximum. Crudup, 461 F.3d at 439.
Here, the district court did not explicitly state its
reason for imposing a sentence of sixty months, the maximum
sentence permissible under § 3583(e).3 However, the court imposed
a sentence within the Chapter 7 advisory policy statement range of
2
Both Crudup and Moreland involved variance sentences that
went above the advisory Chapter 7 sentencing range.
3
The sentence was imposed on May 16, 2006, almost three months
before the opinion in Crudup issued.
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51-60 months. The court’s comments during the hearing reveal its
concerns that prior incarceration and drug treatment had not kept
Griffin from again selling drugs, and that Griffin’s continued drug
activity might cause harm to others. To the extent that the
court’s failure to state its reasons for the sixty-month sentence
renders the sentence unreasonable, we conclude that the sentence is
not plainly unreasonable.
Griffin suggests that the court failed to consider that
a five-year sentence is excessive for his offense. However, when
imposing a revocation sentence, the district court is not
authorized to consider whether the sentence reflects the
seriousness of the offense. Crudup, 461 F.3d at 439 (citing 18
U.S.C. § 3583(e)) (certain § 3553(a) factors may not be considered
in review of revocation sentence). Griffin also suggests that the
court may have imposed the sentence out of a mistaken belief that
he still required treatment for drug addiction. However, Griffin’s
attorney informed the court that Griffin had overcome his
addiction.
The sentence was within the advisory Chapter 7 policy
statement range, and Griffin does not claim that the district court
failed to consider any pertinent § 3553(a) factors. Therefore, we
affirm the sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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