United States v. Griffiths , 292 F. App'x 244 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4541
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHESTER GRIFFITHS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:06-cr-00388-JFM)
Submitted: July 31, 2008 Decided: September 5, 2008
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky,
for Appellant. Rod J. Rosenstein, United States Attorney, Kwame J.
Manley, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chester Griffiths pled guilty to possession of 100
kilograms marijuana with intent to distribute, in violation of 21
U.S.C. § 841(a)(1) (2000). The district court varied upward from
the guideline range of 120 months and imposed a sentence of 180
months. Griffiths contends on appeal that (1) the district court
erred in varying upward from the guideline range pursuant to 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); (2) the extent of the
variance was unreasonable; and (3) the court plainly erred in
failing to give him notice of a possible variance. We affirm.
In June 2006, Griffiths was found driving a Jeep in
Maryland with a suspended registration and an expired driver’s
license. The Jeep contained 157 kilograms of marijuana, which was
worth about $400,000, and $1820 in cash. At Griffiths’ home in
Baltimore, police found $2324 in cash, two scales, and a plastic
bag of white powder.* Because Griffiths had a prior drug
conviction, he was subject to a ten-year mandatory minimum sentence
under § 841(b)(1)(B). At some point before he entered his guilty
plea, Griffiths moved for a ruling on whether he was a career
offender. After a hearing, the district court ruled that Griffiths
was not a career offender. Griffiths subsequently pled guilty to
the instant offense.
*
The record does not reveal what the white powder was.
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Despite the court’s ruling, the probation officer
recommended in the presentence report that Griffiths qualified for
sentencing as a career offender, with an advisory guideline range
of 262-327 months. Before sentencing, the government indicated
its intention to seek an upward departure to a fifteen-year
sentence based on under-representation of Griffiths’ criminal
history. See U.S. Sentencing Guidelines Manual § 4A1.3, p.s.
(2006). The government explained that it believed Griffiths
qualified for sentencing as a career offender, but acknowledged the
court’s ruling that he was not a career offender, and that the
ruling effectively reduced the guideline range to the mandatory
minimum sentence of 120 months. See USSG § 5G1.1(b).
At sentencing, the court imposed a 180-month sentence,
explaining that it was a variance, not the criminal history
departure requested by the government. The court stated that the
variance was appropriate under 18 U.S.C.A. § 3553 (West 2000 &
Supp. 2008) because (1) the offense was a serious one, given that
the marijuana was worth $400,000; (2) Griffiths’ history and
characteristics indicated that he had not been able to conform his
conduct to the law; and (3) the length of the sentence was
necessary to promote respect for the law and provide just
punishment.
On appeal, Griffiths argues that the court erred by
imposing a variance sentence because the drug amount and his
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criminal history were already considered and accounted for in the
calculation of the guideline range. He also contends that the
extent of the variance was unreasonable. Last, Griffiths maintains
that the district court plainly erred in failing to give him notice
that it was considering an upward variance, with the result that he
was not prepared to confront the issue at sentencing.
First, we note that Griffiths was aware that the
government would seek an upward departure based on under-
representation of his criminal history, but he was not given notice
that the court might vary from the guideline range. Because
Griffiths did not object in the district court to the lack of
notice concerning the variance, this issue is reviewed for plain
error. United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.
2007). Rule 32(h) of the Federal Rules of Criminal Procedure
requires the sentencing court to give the parties reasonable notice
when it is considering a departure on a ground not identified as a
possible basis for departure either in the presentence report or in
a party’s prehearing submission. However, the Supreme Court held
in Irizarry v. United States, 128 S. Ct. 2198 (2008), that upward
variances do not require notice under either Rule 32(h) or Burns v.
United States, 501 U.S. 129 (1991). Irizarry, 128 S. Ct. at 2203.
Therefore, no error occurred.
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In Gall v. United States, 128 S. Ct. 586 (2007), the
Supreme Court set out the standards for appellate review of
sentences as follows:
Regardless of whether the sentence imposed is inside or
outside the Guidelines range, the appellate court must
review the sentence under an abuse-of-discretion
standard. It must first ensure that the district court
committed no significant procedural error, such as
failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.
Assuming that the district court’s sentencing decision is
procedurally sound, the appellate court should then
consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.
Id. at 597.
Although the drug amount and Griffiths’ criminal history
were accounted for in the guideline calculation, the sentencing
court had the discretion to decide that the seriousness of the
offense and the defendant’s history and characteristics were
§ 3553(a) factors that warranted a sentence outside the range.
Griffiths has not identified any procedural error made by the
court.
Further, the sentence is not substantively unreasonable.
As explained in Gall, when reviewing a sentence outside the
guideline range for substantive reasonableness, the appellate court
should “take into account the totality of the circumstances
. . . .” Gall, 128 S. Ct. at 597. The court –
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may consider the extent of the deviation, but must give
due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance. The fact that the appellate court might
reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the
district court.
Id.
Griffiths argues that the variance was excessive because
he was merely transporting the marijuana for others, and because
the court found that he was not a career offender. However, in
light of Gall’s conclusion that the sentencing court “is in a
superior position to find facts and judge their import under
§ 3553(a) in the individual case,” id., and that its sentencing
decision should be accorded great deference, we conclude that the
sentence is not substantively unreasonable.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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