United States v. Griffin , 193 F. App'x 211 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5203
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TYRENE SHERMAN GRIFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-04-16-H)
Submitted: June 22, 2006 Decided: August 2, 2006
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tyrene Griffin appeals from the 188-month sentence imposed in
the Eastern District of North Carolina on his separate convictions
of being a felon in possession of a firearm and a felon in
possession of ammunition, in violation of 18 U.S.C. § 922(g). He
contends that his classification as an armed career criminal under
the Armed Career Criminal Act (the “ACCA”) was made in error
because (1) he did not have three predicate convictions for violent
felonies or serious drug offenses that had been “committed on
occasions different from one another,” 18 U.S.C. § 924(e)(1), and
(2) in concluding to the contrary, the sentencing court engaged in
improper fact-finding, in contravention of his Sixth Amendment
rights. As explained below, we reject Griffin’s contentions and
affirm.
I.
In August 2003, Detective Linwood Mercer of the Williamston
(North Carolina) police received information that Griffin was
selling crack cocaine from his residence. On August 29, 2003,
Mercer executed a search warrant that authorized the search of both
Griffin and his Williamston residence. In addition to seizing
crack cocaine, marijuana, and drug paraphernalia in the search,
Mercer recovered a 9-millimeter handgun with an obliterated serial
number and fourteen rounds of .38 special Winchester ammunition.
2
On February 19, 2004, a grand jury returned a two-count
indictment against Griffin, charging him with being a felon in
possession of a firearm (Count One) and a felon in possession of
ammunition (Count Two), both in contravention of 18 U.S.C. §
922(g). The indictment specified that Griffin possessed the
firearm and ammunition after “having been convicted of a crime
punishable by imprisonment for a term exceeding one year.” J.A.
6.1 Griffin thereafter pleaded guilty to both counts of the
indictment, without the benefit of a plea agreement. During his
Rule 11 plea hearing, Griffin admitted that he had possessed the
handgun and the ammunition as alleged, and that he had previously
been convicted of a crime punishable by imprisonment for a term
exceeding one year.
On October 26, 2005, the probation officer submitted to the
district court his final presentence report (“PSR”) on Griffin,
which indicated, inter alia, that Griffin had been previously
indicted in the Martin County (North Carolina) Superior Court on
three counts of “Statutory Rape and Indecent Liberties.” According
to the PSR, these three charges arose from alleged sexual contact
that Griffin had with a fourteen-year-old girl in March 2002 and
May 2002, and again on April 22, 2003. The PSR indicated that, on
July 18, 2003, Griffin pleaded guilty in Martin County to three
1
Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix in this appeal.
3
North Carolina offenses of “Indecent Liberties With a Child” (the
“sex offense convictions”). The PSR further reflected that its
information regarding the sex offense convictions was derived from
unspecified “court records.” J.A. 48-49.
With respect to Griffin’s felon-in-possession convictions in
this case, the PSR recommended a base offense level of 26. Relying
on the three previous sex offense convictions in Martin County,
however, the PSR concluded that Griffin was an armed career
criminal under the ACCA, and it thus set his base offense level at
34 and placed him in criminal history category VI. See USSG
§ 4B1.4 (2004). The PSR recommended a three-level reduction for
acceptance of responsibility, see id. § 3E1.1, resulting in a total
offense level of 31 and a Guidelines sentencing range of 188 to 235
months.2
Griffin filed an objection to the PSR, contending that he was
not an armed career criminal. Specifically, he maintained that the
sex offense convictions were not for offenses committed on separate
occasions, but for “a continuous course of consensual conduct with
the same victim.” J.A. 56. The court overruled his objection,
however, and sentenced him to two concurrent 188-month terms of
imprisonment. This sentence complied with the mandatory minimum
2
The parties agree that, in the absence of the ACCA
enhancement, Griffin’s total offense level would have been 23, and
his criminal history category would have been IV, resulting in a
Guidelines sentencing range of 70 to 78 months.
4
sentence of 180 months imprisonment prescribed by the ACCA, see 18
U.S.C. § 924(e)(1), but it was more than the 120-month maximum
provided for in his statute of conviction, absent the ACCA
enhancement, see id. § 924(a)(2). Griffin has timely noted an
appeal of his sentence, and we possess jurisdiction pursuant to 28
U.S.C. § 1291.
II.
In this appeal, Griffin makes two contentions concerning his
sentence: (1) that the district court erred in determining that
his three previous sex offense convictions were for crimes
“committed on occasions different from one another,” see 18 U.S.C.
§ 922(e)(1); and (2) that the court had unconstitutionally enhanced
his sentence beyond the maximum authorized by the statute of
conviction, on the basis of judicially-found facts derived from
unspecified “court records.” We assess these contentions in turn.
A.
The district court’s conclusion that Griffin’s previous
convictions were for crimes committed on occasions different from
one another is a question of law that we review de novo. United
States v. Hobbs, 136 F.3d 384, 387 (4th Cir. 1998). The ACCA
mandates a minimum sentence of 180 months if a felon in possession
of a firearm or ammunition has “three previous convictions . . .
5
for a violent felony or a serious drug offense, or both, committed
on occasions different from one another.” 18 U.S.C. § 924(e)(1).
Under our precedent, two offenses have occurred on occasions
different from one another if they arose out of “separate and
distinct criminal episode[s],” each of which is “isolated with a
beginning and an end.” United States v. Letterlough, 63 F.3d 332,
335 (4th Cir. 1995).
Griffin does not contend that his three previous sex offense
convictions were not violent felonies for the purposes of 18 U.S.C.
§ 924(e)(1), but maintains that his previous convictions were for
crimes that did not occur on occasions different from one another.
In his view, his earlier sex offenses were part and parcel of a
“continuous course of consensual conduct.” Unfortunately for
Griffin, we rejected a similar contention in Letterlough. There,
we concluded that the defendant’s two drug transactions with the
same person an hour-and-a-half apart were “not part of a continuous
course of criminal conduct,” but had been committed on occasions
different from one another. See Letterlough, 63 F.3d at 337(alterations omitted). In so ruling, we observed that, if an
accused completed a criminal act, had time “to make a conscious and
knowing decision to engage in” another criminal act, and then chose
“to engage in another separate and distinct criminal transaction,”
the two crimes had occurred on occasions different from one
another. Id. Each of Griffin’s previous sex offense convictions
6
arose from a separate and distinct criminal episode: an act of
sexual contact that could be isolated with a beginning and an end.
Moreover, Griffin committed his sex offenses in March 2002 and May
2002, and again on April 22, 2003. Griffin thus had sufficient
time to make a “conscious and knowing decision” before engaging in
each subsequent offense.
In contending that his previous convictions were not for
offenses that occurred on occasions different from one another,
Griffin raises the factors for “separate-and-distinct” offenses
spelled out in Letterlough and revisited by us in Hobbs. In both
cases we recognized that, “[i]n engaging in this separate-and-
distinct analysis, sentencing courts consider (i) whether the
offenses occurred in different geographic locations; (ii) whether
the offenses were substantively different; and (iii) ‘whether the
offenses involved multiple victims or multiple criminal
objectives.’” Hobbs, 136 F.3d at 388 (citing Letterlough, 63 F.3d
at 335-36).
Griffin suggests that his previous offenses did not occur on
different occasions because none of the foregoing factors are
satisfied. The factors spelled out in Letterlough and Hobbs,
however, are not dispositive; rather, they simply aid a sentencing
court when “the factual permutations surrounding the ACCA
. . . create havoc.” Letterlough, 63 F.3d at 335. Specifically,
the sentencing courts have applied these factors “where defendants
7
have claimed that their prior criminal acts took place on one
occasion because they were committed within an extremely short time
span.” Id. at 336-37 (concluding that two drug transactions more
than an hour apart occurred on occasions different from one
another); see also Hobbs, 136 F.3d at 387 n.5, 389-90 (assuming for
purposes of appellate review that three burglaries occurred within
an hour of each other and concluding they had occurred on occasions
different from one another). Griffin, however, does not contend
that his previous sex offense convictions were for crimes committed
during an extremely short time span. Instead, he maintains they
were part of a “continuous course of consensual conduct,” which
took place over an extended period of time. Because the timing of
Griffin’s previous offenses is a dispositive point, we need not
look to and analyze separately the factors specified in Letterlough
and Hobbs. In these circumstances, the district court did not err
in concluding that Griffin’s three previous convictions arose from
offenses that occurred on occasions different from one another.
His challenge to his armed career criminal classification on this
basis is thus without merit.
B.
Griffin next contends that the district court contravened his
Sixth Amendment rights by enhancing his sentence on the basis of
judicially-found facts. Because Griffin has raised this issue for
8
the first time on appeal, we review it for plain error only. See
United States v. Olano, 507 U.S. 725, 731-32 (1993). While Griffin
was sentenced under the advisory Guidelines regime, his actual
sentence — 188 months — was greater than the maximum sentence
authorized by the statute of conviction. See 18 U.S.C. § 924(a)(1)
(authorizing maximum sentence of 120 months imprisonment). The
court justified the imposition of a 188-month sentence by its
finding that Griffin possessed three previous convictions for
violent felonies, see id. § 924(e)(1) (requiring mandatory minimum
sentence of 180 months for armed career criminal under ACCA), and
Griffin asserts that this enhancement contravenes the Sixth
Amendment.
Generally, as the Supreme Court held in its Apprendi and
Booker decisions, “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000); accord United States v. Booker,
543 U.S. 220, 244 (2005). If such a fact is one of a prior
conviction, however, a sentencing court is entitled to make a
relevant finding of fact. See Apprendi, 530 U.S. at 490; Booker,
543 U.S. at 244. Nevertheless, the Sixth Amendment limits the
sources on which a sentencing court may rely in finding facts
relating to prior convictions. United States v. Allen, 446 F.3d
522, 531 (4th Cir. 2006). In finding such facts, a sentencing
9
court may look only to “‘the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between judge
and defendant in which the factual basis for the plea was confirmed
by the defendant, or . . . some comparable judicial record.’” Id.(quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).
The evidence concerning Griffin’s sex offense convictions came
from unspecified “court records” referenced in his PSR. And the
PSR failed to indicate whether those “court records” were judicial
records like those referred to in Shepard and Allen. In United
States v. Thompson, however, we held that “[t]he trial judge [is]
entitled to rely upon the PSR” to find prior convictions when “it
bears the earmarks of derivation from Shepard-approved sources such
as the indictments and state-court judgments from his prior
convictions,” and when a defendant fails to raise “the slightest
objection either to the propriety of its source material or to its
accuracy.” 421 F.3d 278, 285 (4th Cir. 2005). Griffin’s PSR bore
the obvious earmarks of derivation from Shepard-approved sources.
That is, the facts regarding his convictions (dates of commission
and statutory violations) were the type normally found in a
Shepard-approved source, see id. at 282-83, and the PSR indicated
that the facts were gleaned from “court records.” Moreover,
Griffin failed to object “to the propriety of [the PSR’s] source
material or to its accuracy,” see id. at 285; rather he objected
only to the conclusion that his prior convictions arose from
10
offenses committed on occasions different from one another.
Thompson thus constrains us to conclude that the district court was
“entitled to rely upon the PSR,” id., and it committed no Sixth
Amendment error in so doing. Griffin therefore cannot show that
the district court plainly erred in its findings concerning his
previous convictions.3 This aspect of his appellate contentions
thus also fails.
III.
Pursuant to the foregoing, we affirm Griffin’s sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before us and argument
would not aid in the decisional process.
AFFIRMED
3
Griffin also argues that the three sex offense convictions
should have either been alleged in the indictment or admitted by
him in his plea colloquy. Griffin’s contention on this point,
however, is foreclosed by our ruling in United States v. Cheek, 415
F.3d 349, 354 (4th Cir. 2005) (holding that “the Sixth Amendment .
. . does not demand that the mere fact of a prior conviction used
as a basis for a sentencing enhancement be pleaded in an indictment
and submitted to a jury for proof beyond a reasonable doubt”).
11