United States v. Bryant Griffin ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-1268
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Bryant Duane Griffin
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 21, 2013
Filed: November 22, 2013
[Unpublished]
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Before BYE, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
A jury found Bryant Griffin guilty of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). After finding that Griffin was an armed career
criminal (ACC), the district court1 sentenced him to 240 months' imprisonment, a
within-Guidelines sentence. On appeal, Griffin argues that (1) his 240-month sentence
is substantively unreasonable and (2) his Sixth Amendment rights were violated by
application of the Armed Career Criminal Act (ACCA). We affirm.
I. Background
While a passenger on a bus, Griffin argued with other passengers. During the
dispute, Griffin removed a handgun from his jacket pocket and "racked the slide,"
apparently placing a live round in the gun's chamber. The other passengers exited the
bus at the next stop and reported the incident to police. Some passengers reentered the
bus, attempting to get Griffin to leave the bus. At that time, Griffin racked the slide
on the handgun again, and the passengers fled the bus. Griffin sat back down and
remained on the bus as it continued its route. When the police arrived, they found
Griffin unarmed and seated in the back of the bus. Police recovered the firearm from
underneath a row of seats directly in front of where Griffin was sitting. Recorded
video from the bus's security camera confirmed Griffin's actions.
Following Griffin's conviction, a presentence report (PSR) was prepared.
According to the PSR, Griffin had 13 adult convictions, four of which the PSR
identified as ACCA predicate offenses: (1) attempted terroristic threats, (2) third-
degree sale of narcotics, (3) second-degree sale of three grams or more of
cocaine/heroin/meth within a 90-day period, and (4) second-degree sale of three grams
or more of cocaine/heroin/meth within a 90-day period. The PSR calculated a total
offense level of 34 and a criminal history category of VI, resulting in an advisory
Guidelines range of 262 to 327 months' imprisonment. The total offense level was
based on application of the ACC provision, U.S.S.G. § 4B1.4(b)(3), which establishes
a base offense level of 34 "if the defendant used or possessed the firearm . . . in
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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connection with . . . a crime of violence, as defined in § 4B1.2(a)." The PSR
recommended application of the provision, concluding that "the defendant used or
possessed the firearm in connection with a crime of violence, specifically, the
Aggravated Assault on the bus when the defendant pulled the firearm from his pocket
and yelled at the other passengers." This same conduct also increased Griffin's
criminal history from category V to category VI.
Prior to sentencing, Griffin objected to his classification as an ACC, arguing
that (1) his conviction for attempted terroristic threats did not qualify as a violent
felony under the ACCA, (2) his two convictions for second-degree sale of three grams
or more of cocaine/heroin/meth within a 90-day period should count as a single
conviction because they were consolidated for sentencing purposes, and (3) U.S.S.G.
§ 4B1.4(b)(3)(A) did not apply because the jury did not find him guilty of committing
aggravated assault. Griffin requested that the district court consider hospitalization in
lieu of incarceration based on his prior false assertion that he had a twin brother who
was killed in a drive-by shooting.2 The government agreed with the PSR's advisory
Guidelines calculation and requested a 300-month sentence.
At sentencing, the district court declined to apply § 4B1.4(b)(3)(A). Instead, the
district court found that the base offense level was 33 under U.S.S.G.
§ 4B1.4(b)(3)(B), the ACC provision that does not require that a defendant use or
possess a firearm in connection with a crime of violence. Because the district court did
not apply § 4B1.4(b)(3)(A), Griffin's criminal history category dropped from VI to V,
resulting in an advisory Guidelines range of 210 to 262 months' imprisonment.
In sentencing Griffin to 240 months' imprisonment, the district court stated:
2
The United States Probation Office conducted a presentence investigation
following Griffin's conviction. During Griffin's interview, Griffin told the probation
officer that his twin brother was killed in a drive-by shooting in Chicago when he was
ten years old. But, according to Griffin's mother, he did not have a twin brother and
was living in Minneapolis by ten years of age.
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The history that you have leading up to today's sentencing is one that
would cause any reasonable person to fear that you are a danger to the
community. Your lawyer doesn't say this, but there is actually a separate,
in fact, it might be one of those statutes that we were talking about earlier
that makes it a separate crime to try to threaten—we were looking at this
609.713.
And one of the things that specifically mentioned there is
threatening with a purpose of either terrorizing or causing the evacuation
of, among other things, a public transportation facility. And that conduct
that we witnessed with you in that bus and trying to make sure that the
gun was ready to fire with the racking is, that is very, very dangerous
behavior.
Your letter is eloquent, but there's nothing here that weighs very
strongly against the impression that you don't fully understand the
seriousness of your criminal conduct, and the effect that your actions
have on other people.
I'm utterly mystified by the statement that you made to the
probation officer that you had a twin brother who was killed in a fight
when you were ten years old.
***
Your mother seems like a perfectly reasonable person, says you moved
here when you were seven. You never had a twin brother who was killed.
As I understand it, you didn't include that when you were going through
the family history. That was an add-on. That is bizarre. And if it was
true, you would think that there would be other references to it. If it's
false, it's just one more indication that you've got some problem with
admitting the truth and the facts. So I don't know what the reason is for
that.
But I'm going to sentence you to 240 months, and that is the
sentence.
(Emphases added.)
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II. Discussion
Griffin argues that (1) his 240-month sentence is substantively unreasonable
and (2) his Sixth Amendment rights were violated by application of the ACCA.
A. Substantive Reasonableness
Griffin argues that his 240-month sentence is substantively unreasonable
because it is greater than necessary to accomplish the sentencing purposes of 18
U.S.C. § 3553(a). He contends that his sentence is substantively unreasonable because
(1) of "the relatively short prison and jail sentences imposed on [him] for his prior
convictions reflects that his criminal history is indeed less serious than it appears at
first glance"; (2) "a lesser term of incarceration would have been adequate to deter and
punish [him], and to deter others as well"; (3) "the sentence d[oes] not reflect
sufficient consideration of the mitigating circumstances presented by [his] life"; and
(4) "the circumstances of his offense support a sentence less than the twenty years
imposed" because "he did not use th[e] firearm in any crime, point it at anyone, or fire
it."
"Where, as here, [Griffin] does not argue that the district court committed a
procedural error, we bypass the first part of our review and move directly to review
the substantive reasonableness of his sentence." United States v. Franik, 687 F.3d 988,
990 (8th Cir. 2012) (quotation and citation omitted).
Our task is to determine whether the district court abused its discretion
by imposing a sentence that is substantively unreasonable. United States
v. Linderman, 587 F.3d 896, 900 (8th Cir. 2009). [Griffin] challenges the
substantive reasonableness of his sentence, arguing that it is greater than
necessary to accomplish the sentencing purposes of § 3553(a). Contrary
to the government's position regarding our standard of review, [Griffin's]
failure to object at the sentencing hearing does not limit our review of
the substantive reasonableness of the sentence to plain error. Id. at
900–01. "A defendant need not object to preserve an attack on the length
of the sentence imposed if he alleges only that the District Court erred in
weighing the § 3553(a) factors." United States v. Miller, 557 F.3d 910,
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916 (8th Cir. 2009). A sentence that is within the applicable guidelines
range may be presumed to be substantively reasonable. United States v.
Ruelas–Mendez, 556 F.3d 655, 657 (8th Cir. 2009); United States v.
Garcia, 512 F.3d 1004, 1006 (8th Cir. 2008).
United States v. Bolivar-Diaz, 594 F.3d 1003, 1005 (8th Cir. 2010). "The district court
has wide latitude to weigh the § 3553(a) factors in each case and assign some factors
greater weight than others in determining an appropriate sentence." United States v.
Bridges, 569 F.3d 374, 379 (8th Cir. 2009) (citation omitted).
Here, Griffin's 240-month sentence is presumptively reasonable because it falls
within the applicable Guidelines range, which Griffin has not challenged. "While the
district court did not expressly cite § 3553(a), the court highlighted [Griffin's] lengthy
criminal history [and the nature and circumstances of the offense], see 18 U.S.C.
§ 3553(a)(1) . . . ." United States v. Blackmon, 662 F.3d 981, 988 (8th Cir. 2011). This
court "do[es] not require district courts to mechanically recite the § 3553(a) factors,
and district courts are not required to make robotic incantations that each statutory
factor has been considered." Id. (quotations and citations omitted).
Our review of the record reveals that the district court considered the advisory
Guidelines range, the information contained in the PSR, the parties' arguments,
Griffin's statements in his letter to the court, and the § 3553(a) factors. "Because
[Griffin's] sentence came within the applicable guidelines range and is amply
supported by the record, we conclude that the sentence is not substantively
unreasonable and that the district court did not abuse its discretion." Bolivar-Diaz, 594
F.3d at 1005.
B. ACCA
Griffin also argues that application of the ACCA to him violated his Sixth
Amendment rights, as interpreted by the Supreme Court in Apprendi v. New Jersey,
530 U.S. 466 (2000). He asserts that Apprendi was violated in two ways. First, he
asserts that the jury instead of the court "should have been required to determine
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whether his criminal history contained the necessary predicate offenses to trigger
application of the ACCA." Second, he argues that the jury should have made a
specific finding as to whether his drug-sales convictions "were committed 'on
occasions different from one another,' in order to count as separate predicate
offenses."
But, in his opening brief, "Griffin concedes that both arguments are foreclosed
by precedent." (Citing Almendarez-Torres v. United States, 523 U.S. 224, 227 (1998)
(holding that recidivism, as a basis for increasing an offender's sentence, is a
sentencing factor that need not be charged by indictment or proven to a jury beyond
a reasonable doubt); United States v. Sohn, 567 F.3d 392, 394 (8th Cir. 2009) ("This
Circuit in United States v. Campbell recognized the continuing validity of
Almendarez-Torres as a narrow exception to the rule announced in Apprendi.") (citing
Campbell, 270 F.3d 702, 708 (8th Cir. 2001)); United States v. Ramsey, 498 F. App'x
653, 654 (8th Cir. 2013) (unpublished per curiam) ("We have previously held the
question of whether prior felonies were committed on separate occasions may be
resolved by a judge."). While Griffin asserts that this precedent was wrongly decided,
"we cannot disregard controlling precedent." United States v. Cornelison, 717 F.3d
623, 628 (8th Cir. 2013) (citation omitted).
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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