United States v. Leroy Griffin

USCA4 Appeal: 21-4430 Doc: 24 Filed: 06/13/2023 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4430
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEROY RAYMOND GRIFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, District Judge. (3:19-cr-00018-GMG-RWT-1)
Submitted: April 3, 2023 Decided: June 13, 2023
Before GREGORY, Chief Judge, QUATTLEBAUM, Circuit Judge, and FLOYD, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Nicholas J. Compton, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Lara Kay
Omps-Botteicher, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Leroy Raymond Griffin pled guilty to possession with intent to distribute heroin, in
violation of 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1), (b)(1)(C). The district court sentenced
Griffin to 120 months’ imprisonment, a term below the advisory Sentencing Guidelines
range. Griffin’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), asserting that there are no meritorious issues for appeal but questioning whether
the district court erred in overruling Griffin’s objections to the calculation of the Guidelines
range. Griffin has filed pro se supplemental briefs, expanding on the issue raised by
counsel and raising the additional issue of whether the court procedurally erred by failing
to afford his counsel an adequate opportunity to argue during sentencing. The Government
has declined to file a response brief. Finding no error, we affirm.
We review a criminal sentence for reasonableness, applying a deferential abuse-of-
discretion standard. United States v. Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020). In
conducting this review, we must first ensure that the sentence is procedurally reasonable,
“consider[ing] whether the district court properly calculated the defendant’s advisory
[G]uidelines range, gave the parties an opportunity to argue for an appropriate sentence,
considered the 18 U.S.C. § 3553(a) factors, and sufficiently explained the selected
sentence.” Id. (internal quotation marks omitted). “In assessing whether a district court
properly calculated the Guidelines range, including its application of any sentencing
enhancements, [we] review the district court’s legal conclusions de novo and its factual
findings for clear error.” United States v. Horton, 693 F.3d 463, 474 (4th Cir. 2012)
(cleaned up).
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The district court properly calculated the Guidelines range. After correctly
calculating Griffin’s base offense level and criminal history category, the court, over
Griffin’s objection, applied a two-level enhancement for possession of a dangerous weapon
during a drug offense pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
(2018). “The enhancement is proper when the weapon was possessed in connection with
drug activity that was part of the same course of conduct or common scheme as the offense
of conviction.” United States v. Slade, 631 F.3d 185, 189 (4th Cir. 2011) (internal
quotation marks omitted). During Griffin’s sentencing hearing, a law enforcement officer
testified that officers recovered a firearm from the residence of Griffin’s codefendant, a
lower-level drug dealer whom Griffin supplied with drugs as part of a wide-ranging drug
distribution conspiracy. Because Griffin’s offense of conviction occurred within the larger,
jointly undertaken criminal activity, it is not “clearly improbable that [the codefendant’s]
firearm was connected” with Griffin’s offense. USSG § 2D1.1 cmt. n.11(A) (stating that
“[t]he enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense”); see USSG § 1B1.3(a)(1)(B)
(defining when acts or omissions of others are attributable to defendant). Accordingly, we
hold that the district court did not clearly err in applying § 2D1.1(b)(1).
The district court also imposed a four-level enhancement for Griffin’s role in the
offense, again over Griffin’s objection. The Guidelines provide for a four-level
enhancement to a defendant’s base offense level where the defendant “was an organizer or
leader of a criminal activity that involved five or more participants or was otherwise
extensive.” USSG § 3B1.1(a). Based upon the officer’s testimony that Griffin set drug
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prices, advised lower-level dealers, and coordinated a drug distribution conspiracy
spanning several states, the preponderance of the evidence supports the court’s finding that
Griffin was a leader or organizer of criminal activity. See United States v. Cameron, 573
F.3d 179, 185 (4th Cir. 2009) (discussing when leadership role enhancement is
appropriate). Thus, the court did not clearly err in applying § 3B1.1(a).
Additionally, the district court imposed a two-level enhancement under USSG
§ 2D1.1(b)(16)(E). The enhancement applies if the defendant received an enhancement
under USSG § 3B1.1 and “committed the offense as part of the pattern of criminal conduct
engaged in as a livelihood.” USSG § 2D1.1(b)(16)(E). “Engaged in as a livelihood” means
that, for any 12-month period, (1) “the defendant derived income from a pattern of criminal
conduct that . . . exceeded 2,000 times the then existing hourly minimum wage under
federal law,” and (2) “the totality of circumstances shows that such criminal conduct was
the defendant’s primary occupation.” USSG § 4B1.3 cmt. n.2 (internal quotation marks
omitted); see USSG § 2D1.1 cmt. n.20(C) (referencing USSG § 4B1.3). Two of Griffin’s
coconspirators reported significant earnings to law enforcement, suggesting that Griffin, as
a higher-level drug supplier, derived substantial income from drug dealing. Furthermore,
Griffin lacked steady employment during the course of the approximately year-long drug
distribution conspiracy. We therefore conclude that the facts support the district court’s
application of USSG § 2D1.1(b)(16)(E).
We further conclude that Griffin’s sentence is otherwise procedurally reasonable.
The district court listened to Griffin allocute, considered the relevant § 3553(a) factors, and
thoroughly explained Griffin’s sentence, crediting his remorse and proven potential for
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rehabilitation while also acknowledging his serious offense conduct and recidivism. And,
contrary to Griffin’s assertion on appeal, the record reflects that the court permitted
Griffin’s counsel to argue extensively as to the appropriate Guidelines range and the
application of the § 3553(a) factors.
In accordance with Anders, we have reviewed the entire record and have found no
meritorious issues for appeal. We therefore affirm the district court’s judgment. This court
requires that counsel inform Griffin, in writing, of the right to petition the Supreme Court
of the United States for further review. If Griffin requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. Counsel’s motion must state that a copy
thereof was served on Griffin.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
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