Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2554
UNITED STATES OF AMERICA,
Appellee,
v.
JEROME GRIFFIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Torruella, Circuit Judge,
Hug,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Bjorn Lange, Assistant Federal Public Defender, for appellant.
Mark E. Howard, Assistant United States Attorney, United
States Attorney's Office, with whom Thomas P. Colantuono, United
States Attorney, was on brief, for appellee.
July 5, 2006
*
Of the Ninth Circuit, sitting by designation.
Per Curiam. Jerome Griffin ("Griffin") was convicted of crack
cocaine offenses and sentenced to be incarcerated for 198 months,
a term below the properly calculated guideline range. Griffin
appealed, arguing that the sentence was unreasonable under 18
U.S.C. § 3553(a). We are called on to apply our recent en banc
decision in United States v. Jimenez-Beltre, 440 F.3d 514 (1st Cir.
2006) to determine whether Griffin’s sentence was unreasonable. We
hold it was not, and AFFIRM the district court’s sentence.
Background
On September 25, 2002, Griffin pled guilty in the United
States District Court for New Hampshire to three counts of
distribution of cocaine base, and possession with intent to
distribute fifty or more grams of cocaine base "crack" and five
kilograms or more of cocaine hydrochloride, in violation of 21
U.S.C. § 846 and § 841(a)(1), (b)(1)(A)(ii) and (iii). The
sentencing court accepted the factual findings and guideline
applications in the Presentence Investigation Report ("PSR")
without objection from either party.
The PSR found Griffin accountable for more than 1.5 kilograms
of cocaine base, requiring a base offense level under U.S.S.G. §
2D1.1(c)(2) of 38. A three-level adjustment for acceptance of
responsibility resulted in a total offense level of 35. Griffin’s
prior criminal record placed him in criminal history category III,
and as a result, the undisputed guideline sentencing range
calculated by the PSR was 210 to 262 months.
The government recommended a sentence at the low end of the
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guideline range: 210 months. Griffin sought the statutory
mandatory minimum of 120 months. In support of his request,
Griffin offered four arguments: (1) that he had been an exemplary
inmate since his incarceration in March 2002; (2) that he had
performed well while on supervised release from his prior
conviction; (3) that the district court could, under United States
v. Booker, 543 U.S. 220 (2005), consider Griffin’s cooperation with
prosecutors as mitigation, even without a U.S.S.G. § 5K2.1 motion
from the government; and (4) that the unfairness of the 100:1
cocaine base crack to cocaine ratio should operate to reduce his
sentence.
The sentencing court–District Judge DiClerico
presiding–imposed a term of 198 months imprisonment followed by
five (5) years of supervised release.1 Griffin then filed this
timely appeal, arguing 198 months to be unreasonably high in light
of alleged mitigating factors.
Discussion
We have jurisdiction over Griffin’s direct appeal from his
1
This is the sentence from which Griffin appeals; however, it is
the third time he was sentenced. The district court initially
sentenced Griffin to 210 months on February 5, 2003. Griffin
failed to file a timely notice of appeal, but later moved pro se
under 28 U.S.C. § 2255, contending that counsel had failed to
prosecute an appeal at his request. After an evidentiary hearing
on November 12, 2003, the district court vacated and reimposed the
sentence so that Griffin could appeal to the First Circuit. This
he did, but during the pendency of this revitalized direct appeal,
Booker was decided. Accordingly, on May 25, 2005, this court
vacated the 2003 sentence of 210 months and remanded the case for
re-sentencing, which resulted in the 198 month sentence on appeal.
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final criminal judgment of conviction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a). Booker requires that appellate courts
review sentences for "reasonableness." 543 U.S. 220, 260-63
(2005); see also United States v. Antonakopoulos, 399 F.3d 68, 76
(1st Cir. 2005) (explicating Booker). Where, as here, the
sentencing court is charged with committing an error of judgment as
opposed to an error of law, our review of the length of the
sentence demands "substantial deference to the judgment calls of
[the] nisi prius court...." U.S. v. Pho, 433 F.3d 53, 60 (1st Cir.
2006).
Our recent en banc decision in Jimenez-Beltre outlines the
steps we take to evaluate Griffin’s sentence for reasonableness.
440 F.3d at 516-19. Under the post-Booker approach, "district
courts, while not bound to apply the Guidelines, must consult those
Guidelines and take them into account when sentencing." Booker,
543 U.S. at 264. However, Jimenez-Beltre rejects the proposition,
advanced by the U.S. Attorney here, that a sentence within the
properly calculated guideline range is "inherently unreviewable on
appeal on grounds of ‘unreasonableness.’"2 440 F.3d at 517-18
("find[ing] it [un]helpful to talk about the Guidelines as
presumptively controlling or a guidelines sentence as per se
reasonable.") "[M]aking the guidelines ‘presumptive' or ‘per se
2
Several circuits have used the presumption language. See, e.g., United
States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir. 2005); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). The per se label has also
been urged. See United States v. Webb, 403 F.3d 373, 385 (6th Cir.
2005). However, it has thus far been rejected. See United States v.
Talley, 431 F.3d 784, 786-87 (11th Cir. 2005); United States v.
Cunningham, 429 F.3d 673, 676 (7th Cir. 2005); Webb, 403 F.3d at 385 n.9.
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reasonable' does not make them mandatory," but "it tends in that
direction; and anyway terms like ‘presumptive' and ‘per se' are
more ambiguous labels than they at first appear." Id. A "more
useful compass," reasoned the court, is the district judge’s
explanation of how he arrived at a sentence and justified it
against objections. Id.
Booker requires consideration of the other sentencing factors
enumerated by Congress in 18 U.S.C. § 3553(a). Booker, 543 U.S.
at 258-60 ("Without the ‘mandatory' provision, the [Sentencing] Act
nonetheless requires judges to take account of the Guidelines
together with other sentencing goals"). The Guidelines cannot be
called just "another factor" in this statutory list, 18 U.S.C. §
3553(a) (2000), but they are still "generalizations" and accounted,
explicitly or implicitly, for the defense arguments. Jimenez-
Beltre, 440 F.3d 518. Only through analysis of a district court's
"sequential determination of the guideline range, including any
proposed departures, followed by the further determination whether
other factors identified by either side warrant an ultimate
sentence above or below the guideline range" can reasonableness be
assessed. Id. at 518-19.
Where, as here, a sentence falls outside the applicable
guideline range, 18 U.S.C. § 3553(c) already requires a district
court to enumerate reasons to justify it. Jimenez-Beltre goes
further, emphasizing "the provision of a reasoned explanation, a
plausible outcome and–where these criteria are met–some deference
to different judgments by the district judges on the scene." Id.
at 519.
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A. Reasoned Explanation
Following Jimenez-Beltre, we look first to whether the
district court offered a reasoned explanation for its sentence. In
this case, it did. In re-sentencing Griffin, District Judge
DiClerico explained that he had weighed: "the sentencing range
under the advisory guidelines"; "the policies underlying those
guidelines"; and "all of the Section 3553(a) sentencing factors."
Judge DiClerico responded to all of the defense arguments.
Furthermore, Judge DiClerico revealed that he had focused special
attention on eight factors, namely:
1. the government’s recommendation of 210 months and
Griffin’s recommendation of 120 months;
2. Griffin’s limited cooperation with the government;
3. the seriousness of the offenses and large quantities of
contraband involved;
4. the need to deter Griffin and others;
5. the degree of culpability of Griffin relative to his co-
defendants;
6. Griffin’s criminal history and risk of recidivism;
7. Griffin’s good behavior while in custody, including drug
treatment; and
8. the need for drug abuse aftercare and search and seizure
special conditions during supervised release.
These reasons for sentencing Griffin below the guideline
range, but above the statuary mandatory minimum, are essentially
coextensive with the § 3553(a) factors. Thus, Judge DiClerico has
met, if not exceeded, the ideal of transparency in sentencing
aspired to by Jimenez-Beltre.
B. Reasonableness
We next examine the plausibility of the district court’s
result, and we hold Griffin’s sentence of 198 months was
reasonable. Griffin argues that 198 months is greater than
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necessary to comply with the purposes of sentencing under 18 U.S.C.
3553(a)(2). On reasonableness review, however, Griffin’s position
cannot prevail.
First, Griffin received a sentence below the properly
calculated guideline range. A district court is entitled to start
with and accord the Guidelines "substantial weight." See Jimenez-
Beltre, 440 F.3d at 516. A presumption of reasonableness may not
attach to a guidelines sentence, but a sentence below the guideline
range nonetheless suggests mitigating factors are already at work.
Indeed, the district court here weighed each mitigating factor
Griffin cited in support of an even shorter sentence. Judge
DiClerico was not impressed by these factors. Neither are we.
Griffin cites his sizable family, his strict Roman Catholic
upbringing, his failure to learn the value of education from his
parents, his lack of vocational skills and consequent work as a
laborer, and, ultimately, his descent into drug and alcohol
addiction. These factors simply do not meaningfully lessen
Griffin’s culpability for this second and far more serious drug
offense. Griffin also cites exemplary behavior and submission to
substance abuse programing so far in prison. While commendable,
neither bears very strongly on a sentence meant to reflect the
gravity of offenses Griffin committed prior to his imprisonment.
We find nothing unreasonable about the district court’s
judgment that Griffin’s cooperation with authorities was only
minimal; about its findings regarding Griffin’s role in or degree
of culpability for the conspiracy; or about its conclusion that a
lesser term would not adequately deter a 40-year-old repeat
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offender such as Griffin, or might have a detrimental effect on
general deterrence.
Finally, our recent decision in Pho explicitly rejected
Griffin’s argument that the Guidelines' disparate treatment of
crack and powder cocaine justifies a sentence below the advisory
guideline range. 433 F.3d at 63.
By contrast, the aggravating factors in this case are
undisputed. Griffin was held accountable (without objection) for
1.5 kilograms of cocaine base "crack." According to the U.S.
Attorney, this quantity "was one of the biggest ever in the State
of New Hampshire." It was also Griffin’s second crack conviction.
Even worse, Griffin offended while still on supervised release
following 30 months in prison for his first offense, and Griffin’s
co-conspirators were involved on both occasions. Overall, Griffin
is a drug user unable to function in society without resorting to
drug offenses to pay for his habit. The risk of recidivism is thus
higher than average, and Judge DiClerico’s sentence is reasonable.
Conclusion
Because Judge DiClerico’s well-described explanation convinces
us court that Griffin’s sentence is defensible on reasonableness
grounds, Jimenez-Beltre directs us to defer to Judge DiClerico’s
judgment. Accordingly, we AFFIRM Griffin’s sentence.
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