United States v. Jabri Griffin ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 14, 2019
Decided November 25, 2019
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 19‐1998
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 18‐CR‐220‐JPS
JABRI J. GRIFFIN, J.P. Stadtmueller,
Defendant‐Appellant. Judge.
ORDER
Jabri Griffin was charged with and pleaded guilty to possessing a firearm as a
felon. The district court sentenced him to 42 months’ imprisonment, below the
Sentencing Guidelines range of 70 to 87 months. Griffin now appeals his sentence,
arguing that it reflects the district court’s unfounded speculation that he was engaged in
additional criminal activity. He also contends that the court failed to consider a
principal mitigation argument. But Griffin forfeited his argument about the speculative
statement, and he cannot demonstrate that the district court plainly erred. Further, the
No. 19‐1998 Page 2
district court adequately considered Griffin’s arguments in mitigation. We therefore
affirm the judgment.
I. BACKGROUND
In the fall of 2018, police officers responded to a 911 call that two men were
arguing and that one had a gun. When the officers arrived, they found Griffin arguing
with his cousin in the backyard of his cousin’s home. The officers saw a gun sticking out
of Griffin’s pocket. When they took the gun and searched Griffin, they discovered that
he was also carrying $1,887 in cash.
Having been convicted of felony drug offenses previously, Griffin could not
legally possess the firearm, so he was arrested and charged. After he pleaded guilty, a
probation officer prepared a presentence investigation report. The report calculated
Griffin’s offense level to be 23, with a criminal history category of IV, resulting in a
guidelines range of 70 to 87 months’ imprisonment.
At the sentencing hearing, the district court first asked Griffin whether he had
any objections to the presentence investigation report. Griffin did not, so the court
accepted the facts in the report and adopted the proposed guidelines range. Next,
Griffin presented his argument for a prison sentence of only 28 months. He emphasized
that he had purchased the gun to protect himself after he received threats, and that he
had no intention of using the gun to commit a crime. He also noted that, despite
multiple arrests, he had been sentenced only once before, and that his personal
history—growing up in poverty and being exposed to drugs and violence at a young
age—warranted a lesser sentence. Finally, he asked the court to consider his conduct
since being arrested: he had actively participated in counseling and programming to
better himself as a person, father, and employee.
After Griffin’s allocution, the district court observed that despite Griffin’s
multiple contacts with the criminal justice system, he had learned “precious little in
terms of respect for the law.” In addition to his previous drug convictions, the court
noted, Griffin had been charged in state court with three counts of being a felon in
possession. (Those charges were dismissed, and the court stated that it was not
considering that conduct as a basis for Griffin’s sentence.) The court then mentioned
that associating with the “wrong crowd” and being unemployed leads to violence and
results in incarceration. “In fact,” the court continued, Griffin had been arrested with
about $2,000 in cash in his pocket, and “[n]obody carries that amount of money around
No. 19‐1998 Page 3
in cash, unless they’re up to something no good, whether it’s drugs or gambling or theft
or whatever.” The court did not acknowledge that Griffin was working cash jobs at the
time for his friends and family and earned up to $2,000 per month.
The court continued by commenting that unless Griffin made some changes in
his life, including getting an education and obtaining a regular job, he was going to find
himself back in prison. The court then stated that although Griffin “may have today
aspirations and goals to put all of this behind [him] in terms of a lifestyle,” it could not
predict whether he would truly reform his behavior. But, the court emphasized, it
routinely considered the cost of incarceration when determining a just and reasonable
term of imprisonment, as sentencing had “reached a point … where the law of
diminishing returns begins to be part of the equation.” After discussing Griffin’s
relatively modest criminal history and goals to improve himself, the court sentenced
him to 42 months’ imprisonment, 28 months below the guidelines range. Finally, the
court asked Griffin’s counsel whether any other matters needed to be addressed, and
counsel responded no.
II. ANALYSIS
A. The District Court’s Remarks about Griffin’s Cash
On appeal, Griffin first argues that the district court erred by commenting on the
nearly $2,000 in his pocket at the time of his arrest and speculating that “nobody carries
that amount of money around in cash, unless they’re up to something no good.” Griffin
contends this statement lacks any support and contravenes the evidence that he worked
cash jobs, resulting in a sentence that violated his “due‐process right to be sentenced
based on accurate information.” United States v. Miller, 900 F.3d 509, 513 (7th Cir. 2018).
1. Standard of Review
The parties dispute which standard of review applies to this argument. The
government contends that Griffin did not object to the district court’s statement during
sentencing, so the issue is forfeited and subject to plain‐error review on appeal. Griffin
responds that he did not need to respond to the district court’s comment after it had
already been made because “[e]xceptions to rulings or orders of the court are
unnecessary.” FED. R. CRIM. P. 51(a). He argues that he preserved his sentencing‐related
arguments because he argued for a lesser sentence and gave his reasons for it.
No. 19‐1998 Page 4
But the two cases that Griffin relies on in support of his argument are
distinguishable. First, in United States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009), we
held that the defendant did not have to challenge the above‐guidelines sentence
announced by the district court because the sentence had been “the subject of extensive
argument and evidence” before the court imposed it. And “when an issue is argued
before the judicial ruling, counsel need not take exception once the court’s decision has
been announced.” Id. But here, the errant, speculative comment that the court made
during sentencing was not “a judicial choice” on a contested issue. So, Griffin’s
argument for a lower sentence was not sufficient to alert the court to a potential error.
Second, in United States v. Courtland, 642 F.3d 545, 551 (7th Cir. 2011), the district court
entered its own research memorandum on the docket and referred to it during the
sentencing hearing as an “order.” When the defendants challenged the propriety of the
document on appeal, we concluded that they had not forfeited their arguments because
it was unclear whether they were put on notice of the district court’s “order,” and when
“a party does not have an opportunity to object to a ruling or order, the absence of an
objection does not later prejudice that party.” Id. (quoting FED. R. CRIM. P. 51(b)).
Courtland turned largely on the “unusual circumstances” of the district court’s “order,”
see id., which is not a factor present in Griffin’s case.
Instead, this case is more like United States v. Oliver, 873 F.3d 601, 607 (7th Cir.
2017), and United States v. Bostock, 910 F.3d 348 (7th Cir. 2018). In Oliver, after both
parties had the opportunity to speak, the district court made speculative, off‐the‐cuff
remarks. 873 F.3d at 606. Then, after announcing the sentence, the district court asked
defense counsel whether there was “any argument of yours as to the sentence that [the
court had not] addressed.” Id. Because the defendant responded that there was not, and
did not otherwise object to the court’s comments, we concluded that the defendant had
forfeited any objection to those remarks on appeal. Id. at 607. Similarly, in Bostock, the
district court stated, without support, that methamphetamine in the form of “ice” is
more valuable and that “with ‘more value comes more danger.’” 910 F.3d at 350.
Because the defendant did not dispute the district court’s observations, we concluded,
he forfeited the argument that the district court improperly relied on unsupported
premises in crafting the sentence. Id. at 350–51; see also United States v. Spivey, 926 F.3d
382, 385 (7th Cir. 2019) (concluding that defendant forfeited argument that district court
improperly relied on violation of non‐existent supervised‐release condition because
defendant did not object to alleged procedural error); Miller, 900 F.3d at 512 (ruling that,
by failing to object, defendant forfeited argument about district court’s erroneous
statement that defendant’s criminal history would place him in category VIII if it
existed).
No. 19‐1998 Page 5
We agree with the government that Griffin forfeited his argument. The district
court’s speculative statement about the money in Griffin’s pocket was not a Rule 51
“ruling or order.” True, there was no evidence that Griffin was engaged in gambling or
theft when he was arrested with nearly $2,000 in cash. But the record also does not
reveal why Griffin had that much money in his pocket—the presentence investigation
report indicates that around the time of his arrest, Griffin was working cash jobs and
earned about $2,000 per month. And the court did not reach a “judicial choice” on a
contested issue, see Bartlett, 567 F.3d at 910; it merely commented on the suspicious
nature of carrying $2,000 in cash. Had Griffin objected to this opinion, he could have
explained why the money was in his pocket, giving the district court the opportunity to
correct, clarify, or withdraw the remark. Cf. Bostock, 910 F.3d at 350 (noting that, had
defendant objected, a record could have been made supporting or disproving district
court’s speculative statement). Griffin therefore forfeited his argument, and it is subject
to plain‐error review.
2. The Merits Under Plain‐Error Review
Assuming that the court’s speculation constitutes an inaccurate statement, Griffin
must demonstrate that the district court’s misstatement affected his substantial rights—
“that there is a reasonable probability that, but for this error, his sentence would have
been different.” Miller, 900 F.3d at 512; accord Rosales‐Mireles v. United States, 138 S. Ct.
1897, 1904–05 (2018). But Griffin has not established that he was prejudiced. The district
court supported the sentence by pointing to factors other than the amount of cash
Griffin was carrying. See Miller, 900 F.3d at 513. It detailed Griffin’s criminal history and
multiple contacts with the criminal justice system. It then addressed the circumstances
of the offense—including that Griffin had not actually fired the weapon he possessed—
and noted that the high‐powered firearm was a “recipe for disaster.” The court next
commented that Griffin’s prior convictions did not seem to deter him from engaging in
criminal activity. And although the court considered Griffin’s arguments that he was
reforming himself through counseling and training, it found that Griffin’s hope for a
brighter future did not offset his criminal history. Based on these factors, the court
sentenced Griffin to 42 months’ imprisonment. Because the district court cited multiple
reasons to support the sentence other than the amount of cash found in Griffin’s pocket,
see id.; Bostock, 910 F.3d at 351, Griffin cannot demonstrate a reasonable probability that
his sentence would have been different absent the court’s speculation.
No. 19‐1998 Page 6
B. The District Court Adequately Addressed Griffin’s Mitigation Arguments
Finally, Griffin contends that the district court erred by failing to consider his
post‐offense rehabilitation. Although the district court must address a defendant’s
meritorious argument in mitigation, that consideration need not be exhaustive, and less
explanation is needed when the court imposes a within‐ or below‐guidelines sentence.
See United States v. Graham, 915 F.3d 456, 459 (7th Cir. 2019); United States v. Curby,
595 F.3d 794, 797 (7th Cir. 2010). In fact, a court’s statement that it has reviewed the
written argument can suffice to demonstrate that it considered the argument and
rejected it. See Graham, 915 F.3d at 459. The district court here not only made such a
statement, but also discussed Griffin’s post‐offense rehabilitation and afforded it little
weight, stating that while Griffin may have “aspirations and goals to put all of this
behind [him],” the court could not “be so clairvoyant as to predict what lies ahead.” All
the court could do, it continued, was judge “based upon the record [that was] before
[it].” Although the discussion may have been brief, it demonstrates that the court
considered Griffin’s mitigation argument and used a reasoned basis for affording it
little weight. See, e.g., United States v. Davis, 764 F.3d 690, 694 (7th Cir. 2014);
United States v. Stinefast, 724 F.3d 925, 931–32 (7th Cir. 2013).
We therefore affirm the sentence imposed by the district court.