In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2028
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JADRION G RIFFIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 3:08CR00014-001—Richard L. Young, Chief Judge.
A RGUED F EBRUARY 8, 2011—D ECIDED JULY 22, 2011
Before SYKES, T INDER, and H AMILTON, Circuit Judges.
S YKES, Circuit Judge. When two Indiana police officers
attempted to stop a car matching the description of one
reportedly involved in a road-rage incident, the driver
Jadrion Griffin, initially showed signs of compliance. He
then changed his mind and continued to drive, prompting
a brief low-speed car chase. Griffin eventually pulled
over, but not before leading the officers through a
parking lot where he tossed a plastic bag containing
82 grams of crack into newly fallen snow.
2 No. 10-2028
Law-enforcement officers later obtained a federal war-
rant to search Griffin’s home and there recovered addi-
tional crack cocaine and a loaded handgun. A federal
grand jury indicted Griffin on a number of drug- and gun-
related crimes. Griffin moved to suppress the evidence
of the drugs recovered from the snowy parking lot. The
district court denied the motion, and the government
introduced the drug evidence at trial. The jury convicted
Griffin of all but one of the counts charged. The court
imposed a 360-month sentence.
On appeal Griffin claims he was illegally seized when
he threw the crack in the snow and therefore the drug
evidence should have been suppressed. He also raises
two challenges to his sentence. He first claims that he
should not have been sentenced as a career offender
under section 4B1.1 of the sentencing guidelines be-
cause his prior conviction for vehicular flight under
Indiana law is not a crime of violence. He also argues
that he should be resentenced using the new crack-to-
powder ratio prescribed by the Fair Sentencing Act of
2010 (“the FSA”), Pub. L. No. 111-220, 124 Stat. 2372.
We affirm. Griffin was not “seized” for Fourth Amend-
ment purposes when he discarded the crack in the
parking lot during the low-speed police chase, so the
drug evidence was properly admitted at trial. Griffin’s
sentencing challenges are foreclosed by our precedent
and by the Supreme Court’s recent decision in United
States v. Sykes, 131 S. Ct. 2267 (2011).
No. 10-2028 3
I. Background
Shortly after midnight on February 3, 2007, two Indiana
State Excise Police officers patrolling in an unmarked
squad car in Evansville, Indiana, received a dispatch
alerting them to a possible road-rage incident nearby. The
dispatch was prompted by a 911 call reporting that a
black male driving a blue GMC Yukon had just thrown
something at another vehicle. The unidentified caller
reported that the driver was last seen traveling north-
bound on Fulton Avenue in Evansville. Not long after
receiving this dispatch, the officers saw a blue Yukon
traveling southbound on Fulton. They began following
the Yukon, and although they did not observe any
traffic violations or other signs of road rage, they
decided to pull the vehicle over.
When the officers found a safe place to initiate the
stop, they turned on their squad’s emergency lights. The
Yukon initially slowed and appeared to be pulling over,
but then changed course and continued down the road.
An Evansville police officer patrolling nearby heard a
dispatch about the pursuit over his police radio and
joined in the chase. The Evansville officer turned on his
emergency lights and siren, but the Yukon continued to
drive, passing through a red light in the process.
At some point the State Police officers turned on their
siren as well. The Yukon still did not stop, so the officers
activated their squad-car intercom and verbally com-
manded the driver to pull over. The Yukon made a few
evasive maneuvers—turning into an alley and cutting
through a parking lot covered in freshly fallen snow—
4 No. 10-2028
before eventually complying. The pursuit lasted only
about one minute. The officers later estimated that the
Yukon traveled at 20 to 35 miles per hour during the chase.
After pulling over, Griffin got out of the Yukon and the
officers arrested him for resisting law enforcement by
vehicle and for several traffic offenses committed during
the pursuit. They then searched the route Griffin had
traveled during the chase. In the parking lot alongside
the Yukon’s fresh tire tracks in the snow, they found a
plastic bag containing 82 grams of crack cocaine. Griffin
was charged with felony drug offenses in Indiana state
court and released on bond pending trial. Several
months later, officers executed a federal search warrant
at Griffin’s home in Evansville. They recovered 26 grams
of cocaine base, digital scales, a loaded .45-caliber hand-
gun, a drug ledger, and $1,858 in cash.
A federal grand jury indicted Griffin based on the
evidence recovered pursuant to the federal search
warrant as well as the crack cocaine found in the snowy
parking lot. The five-count indictment contained three
drug charges pursuant to 21 U.S.C. § 841: conspiracy to
distribute 50 or more grams of crack cocaine (Count I);
possession with intent to distribute 50 or more grams of
crack cocaine on the day of the low-speed car chase
(Count II); and possession with intent to distribute five
or more grams of crack cocaine on the day the search
warrant was executed (Count III). The final two
counts alleged violations of federal gun laws, specifically
possession of a firearm in furtherance of drug trafficking
in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count IV), and
No. 10-2028 5
unlawful possession of a firearm by a convicted felon
in violation of 18 U.S.C. § 922(g)(1) (Count V).
Prior to trial Griffin moved to suppress the crack
cocaine recovered from the parking lot immediately
after the police pursuit. He claimed that this evidence
should be excluded as the fruit of an illegal seizure
because the State Police officers lacked reasonable suspi-
cion to justify initiating the stop. The district court
denied the motion.
A two-day jury trial ensued. The government intro-
duced the drug evidence—including the 82 grams of crack
recovered from the parking lot—over defense counsel’s
continuing objection. The jury convicted Griffin of all
counts except Count IV, the charge of possessing a
firearm in furtherance of a drug-trafficking crime.
At Griffin’s sentencing hearing, the court calculated a
guidelines base offense level of 34 after finding Griffin
responsible for over 500 grams of crack cocaine in the
course of the conspiracy. The court deducted two points
based on its policy disagreement with the crack-to-
powder disparity in the guidelines, but then determined
that Griffin’s prior convictions for battery with a
deadly weapon and felony resisting law enforcement by
vehicle qualified him as a career offender, which raised
his offense level to 37. Based on this offense level and
Griffin’s criminal-history category of VI, the court calcu-
lated a guidelines range of 360 months to life. The court
sentenced Griffin to concurrent terms of 360 months on
Counts I and II, and 120 months on Counts III and V.
Griffin appealed.
6 No. 10-2028
II. Discussion
Griffin makes three arguments on appeal. He first
claims that the crack cocaine found in the snowy parking
lot should have been suppressed as the fruit of an
illegal seizure. He argues that he is entitled to a new
trial because the improper admission of this evidence
tainted his entire trial. His other arguments relate to his
sentence. He claims that the district court erred when it
found him to be a career offender under the sentencing
guidelines by counting his Indiana conviction for
vehicular flight as a crime of violence. Finally, Griffin
maintains that he should be resentenced using the
more lenient crack-to-powder ratio set forth in the FSA.
A. Griffin’s Suppression Motion
Griffin argues that the crack cocaine found in the
parking lot along the route of the police chase was the
fruit of an unconstitutional seizure and the admission
of this evidence at trial likely contributed to his convic-
tions, entitling him to a new trial. We review the district
court’s denial of Griffin’s motion to suppress under a
split standard of review; the court’s factual findings
are reviewed for clear error and its legal conclusions are
reviewed de novo. United States v. Slone, 636 F.3d 845,
848 (7th Cir. 2011).
The government’s concessions in this case helpfully
narrow our inquiry. “[W]hen police conduct an unrea-
sonable search or seizure, the exclusionary rule usually
vindicates the Fourth Amendment’s protections by
No. 10-2028 7
kicking out the unlawfully obtained evidence,” id., and
here the government does not claim that any exception
to the exclusionary rule applies. As a general matter, a
warrantless search or seizure is unreasonable unless
supported by probable cause, id., or in the case of an
“investigatory stop of a vehicle,” unless “articulable
facts support a reasonable suspicion that criminal
activity is afoot,” United States v. Drake, 456 F.3d 771,
774 (7th Cir. 2006). The government simplified matters
somewhat by conceding at oral argument that when
the officers first activated their emergency lights, they
did not have facts supporting a reasonable suspicion
to justify stopping Griffin. As such, if by activating
their emergency lights the officers “seized” Griffin, then
the drugs that he discarded during the ensuing
low-speed chase should have been suppressed as the
product of an unconstitutional seizure. See Slone, 636
F.3d at 848.
If, on the other hand, the “seizure” for Fourth Amend-
ment purposes did not occur until Griffin pulled over,
then the district court’s denial of suppression was
correct; the evidence would not be the fruit of an uncon-
stitutional seizure because Griffin discarded it prior
to being seized. See California v. Hodari D., 499 U.S. 621, 629
(1991) (Because the defendant “was not seized until he
was tackled[, t]he cocaine abandoned while he was run-
ning was in this case not the fruit of a seizure, and
his motion to exclude evidence of it was properly de-
nied.”). And by the time he pulled over, Griffin had
committed a series of traffic and other offenses that
gave the officers probable cause to arrest him. See, e.g.,
8 No. 10-2028
Carmichael v. Vill. of Palatine, Ill., 605 F.3d 451, 456 (7th
Cir. 2010) (“As a general matter, the decision to stop an
automobile is reasonable where the police have probable
cause to believe that a traffic violation has occurred.”
(quotation marks omitted)). Thus, whether the district
court properly denied Griffin’s motion to suppress
hinges entirely on when the “seizure” for Fourth Amend-
ment purposes occurred.
“[A] person is ‘seized’ only when, by means of physical
force or a show of authority, his freedom of movement
is restrained.” United States v. Mendenhall, 446 U.S. 544,
553 (1980). While an officer’s application of physical
force always constitutes a seizure, a “show of authority”
alone is insufficient; an officer’s show of authority
becomes a seizure only if the person at whom it is
directed actually submits to that authority. Hodari D.,
499 U.S. at 626. In other words, there are two kinds of
seizures: those effected through physical force and those
effected through a show of authority and “submission
to the assertion of authority.” Id. (emphasis omitted).
Here, the officers did not use physical force to in-
duce Griffin to stop. Activating their emergency lights,
however, unquestionably qualified as a show of authority,
see Brower v. County of Inyo, 489 U.S. 593, 597-98 (1989),
and it is undisputed that Griffin eventually submitted to
their show of authority. The factual wrinkle in this case
is that Griffin attempted to evade the officers before
eventually submitting, and it was in the interim time
period that he discarded the crack cocaine. In many
cases there is no need to resolve ambiguity about when
No. 10-2028 9
a suspect is seized after an officer’s initial show of author-
ity because the suspect’s submission closely follows, or
the police resort to physical force when the suspect does
not yield, or reasonable suspicion supports the initial
show of authority. See, e.g., Gentry v. Sevier, 597 F.3d
838, 843-45 (7th Cir. 2010) (finding that an officer seized
the plaintiff by telling him to put his hands over his
head, which the plaintiff did, without identifying
precisely at what point the seizure occurred); United
States v. Robinson, 537 F.3d 798, 801 n.2 (7th Cir. 2008)
(explaining that because the officers had reasonable
suspicion at the time of the show of authority, the court
did not need to decide “precisely when Robinson was
‘seized’ for purposes of the Fourth Amendment”); Tom
v. Voida, 963 F.2d 952, 957 (7th Cir. 2002) (holding that
a plaintiff who failed to yield to a show of authority
was not seized until the pursuing police officer “physi-
cally touched him”). Here, however, the admissibility
of the discarded drugs turns on when the seizure
occurred, so the question cannot be avoided.
Griffin argues that if a suspect eventually yields to
a show of authority by the police, the seizure begins
for constitutional purposes upon the initial show of
authority and continues until the suspect submits. He
maintains, in other words, that a seizure does not neces-
sarily occur at a discrete point in time but is better con-
ceived of as a continuing event; on this view, the entire
period of time between an officer’s show of authority
and the subject’s submission to it constitutes the “sei-
zure” for Fourth Amendment purposes. Applying this
conceptualization here, Griffin contends that the seizure
10 No. 10-2028
began when the officers activated their emergency lights
and was completed when he submitted; the whole course
of conduct counts as a seizure under the Fourth Amend-
ment.
This argument is in direct conflict with Hodari D., in
which the Supreme Court clarified that a “ ‘seizure is a
single act, and not a continuous fact.’ ” 499 U.S. at 625
(quoting Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 471
(1874)); see also Lee v. City of Chicago, 330 F.3d 456, 462
(7th Cir. 2003) (“[A]t the time of the [Fourth A]mendment’s
drafting, the word ‘seizure’ was defined as a temporally
limited act . . . .” (citing O XFORD E NGLISH D ICTIONARY
(2d ed. 1989))). Hodari D. rejected the proposition that once
a suspect has been seized through the application of
physical force, “there is a continuing arrest during the
period of fugitivity” if the citizen “br[eaks] away and . . .
then cast[s] away the [drugs].” 499 U.S. at 625. Griffin’s
seizure-as-a-continuum theory is, therefore, unfounded.
On this point our decision in United States v. Bradley,
196 F.3d 762 (7th Cir. 1999), contains dicta that requires
some clarification. In Bradley a police officer activated
his unmarked squad’s emergency lights to stop a car
that had rolled through a stop sign, but the driver did not
pull over. Id. at 765. The officer then drew his service
revolver and fired a warning shot in the air. When the
driver still did not pull over, the officer fired a shot into
the car. Id. The bullet lodged in the driver’s seat, which
finally induced the driver to stop. Id. at 765-66. In up-
holding the officer’s conviction for use of excessive force
in violation of the Fourth Amendment, see id. at 767-71,
No. 10-2028 11
we held that the “gunshot into [the] station wagon con-
stituted a seizure under the Fourth Amendment,” id.
at 768.
Our holding in Bradley follows directly from Hodari
D.—the gunshot plainly constituted a seizure effected
by the officer’s use of physical force. See Hodari D., 499
U.S. at 625 (“[A]n arrest is effected by the slightest ap-
plication of physical force . . . .”). However, Bradley also
problematically (and unnecessarily) suggested that “a
Fourth Amendment seizure of a fleeing suspect is not . . .
an isolated moment” but can span the time between the
use of force and the time the suspect stops attempting to
escape. 196 F.3d at 768. 1 We quoted from a Third Circuit
1
Bradley appears to suggest that California v. Hodari D., 499 U.S.
621 (1991), stands for the proposition that a use-of-force
seizure occurs only if the “use of force . . . cause[s] the fleeing
individual to stop attempting to escape.” United States v.
Bradley, 196 F.3d 762, 768 (7th Cir. 1999). This misses an impor-
tant nuance in Hodari D. The Supreme Court explained that
a seizure through use of force occurs the moment force is
applied. 499 U.S. at 626 (“The word ‘seizure’ readily bears
the meaning of a laying on of hands or application of physical
force to restrain movement, even when it is ultimately unsuc-
cessful.”). But as we have noted, the Court also rejected the
notion that such a seizure is a “continuum” if the suspect breaks
away and only later submits. Id. at 625-26. The seizure in
Bradley occurred when the officer fired a gunshot into the car
even though it took a minute for the driver to pull over, see
196 F.3d at 767, and there was no need to imply the existence
of a continuing-seizure theory to decide the case.
12 No. 10-2028
opinion stating that “ ‘a “seizure” can be a process, a kind
of continuum, and is not necessarily a discrete moment
of initial restraint.’ ” Id. at 767 (quoting United States v.
Johnstone, 107 F.3d 200, 206 (3d Cir. 1997)). This language
cannot be squared with Hodari D.’s emphatic state-
ment that a “ ‘seizure is a single act, and not a continuous
fact.’ ” 499 U.S. at 625 (quoting Thompson, 85 U.S. at 471).
Accordingly, Bradley is properly understood to stand
for the proposition that a gunshot fired into a fleeing car
is a forcible seizure; it should not be read as support for
the proposition that a seizure is a “continuum” that can
span the time between a show of authority and a sur-
render, as Griffin suggests.
Here, the officers did not use force, and without his
seizure-as-a-continuum theory, Griffin is left with two
discrete points at which the seizure could have been
effected: when the police initially activated their emer-
gency lights or when he yielded to their show of authority.
Griffin concedes that under Hodari D. a seizure cannot
occur unless a suspect submits; he denies, however, that
a seizure cannot occur until the suspect submits. The
reasoning of Hodari D. forecloses this argument, which
is really just a variation on the “continuum” theme.
Hodari D. held that submission to a show of authority
is a necessary element of a seizure; the Court explained
that while a suspect is still fleeing (as Griffin was when
he discarded the drugs), he is not seized. See 499 U.S. at
626 (“The word ‘seizure’ . . . does not remotely apply . . . to
the prospect of a policeman yelling ‘Stop, in the name
of the law!’ at a fleeing form that continues to flee.”). If a
No. 10-2028 13
suspect is not seized during the entire time he is being
pursued by police, then the seizure does not occur until
he submits to the show of authority or the pursuing
officer resorts to force to stop the suspect’s flight. The
Court made the forcible-seizure part of this reasoning
explicit, explaining that when Hodari ignored an initial
show of authority and the pursuing officer had to use
force, the seizure did not occur “until he was tackled.”
Id. at 629. That is, a seizure by physical force following
a show of authority occurs when force is applied; it
does not relate back to the initial show of authority.
Similarly, a seizure by submission following a show of
authority occurs when the suspect submits and does not
relate back to the initial show of authority.2 Contrary
to Griffin’s argument, a seizure by show of authority
does not occur unless and until the suspect submits.
This conclusion is consistent with several of our cases
applying Hodari D. In Kernats v. O’Sullivan, 35 F.3d 1171
(7th Cir. 1994), we noted that “[u]nder [the Hodari D.]
2
Indeed, the dissent in Hodari D. understood this to be part
of the majority’s holding: “The Court today defines a seizure
as commencing, not with egregious police conduct, but rather
with submission by the citizen.” 499 U.S. at 647 (Stevens, J.,
dissenting). Justice Stevens anticipated that in a situation
like the one in this case where there is “a significant time
interval between the initiation of the officer’s show of force
and the complete submission by the citizen,” under the major-
ity’s holding, “the timing of the seizure is governed by the
citizen’s reaction, rather than by the officer’s conduct.” Id.
at 643 (Stevens, J., dissenting).
14 No. 10-2028
test, a fleeing suspect—even one who is confronted with
an obvious show of authority—is not seized until his
freedom of movement has been terminated by an inten-
tional application of physical force or by the suspect’s
submission to the asserted authority.” Id. at 1178 n.4.
We repeated this language again a few years later in
United States v. $32,400.00, in U.S. Currency, 82 F.3d 135,
139 (7th Cir. 1996). Simply put, a seizure effected by a
show of authority occurs when the suspect submits.
Griffin discarded the drugs during the low-speed
police chase before he submitted to the officers’ show of
authority—that is, before he was “seized” for Fourth
Amendment purposes. Accordingly, the drug evidence
found in the parking lot was not the fruit of an unconstitu-
tional seizure, and the district court properly denied
Griffin’s motion to suppress. See Hodari D., 499 U.S. at 629.
B. Griffin’s Sentence
Griffin raises two challenges to his sentence. He
claims that the district court improperly classified him
as a career offender under the sentencing guidelines.
He also maintains that he should be resentenced
because the FSA applies retroactively and because the
date for determining retroactivity should be the date
of final judgment.
1. Career Offender Status
Griffin claims he was erroneously classified as a
career offender under the guidelines based in part on his
No. 10-2028 15
Indiana conviction for vehicular flight, which he con-
tends does not qualify as a crime of violence under
section 4B1.2(a) of the guidelines. He maintains he is
entitled to be resentenced using the guidelines range
that would have applied without the career-offender
enhancement.
At the time Griffin filed his appeal, circuit precedent
foreclosed this argument; we have previously held that
a conviction for vehicular flight under Indiana law,
IND. C ODE § 35-44-3-3(b)(1)(A), is a crime of violence.3 See
United States v. Spells, 537 F.3d 743 (7th Cir. 2008); United
States v. Sykes, 598 F.3d 334 (7th Cir. 2010). When this case
was argued, however, Sykes was pending before the
Supreme Court, see Sykes v. United States, 131 S. Ct. 2267
(2011), so we held this case in abeyance awaiting the
Court’s decision. That decision has now been issued, and
3
It is not entirely clear from the conviction records intro-
duced by the government whether Griffin was convicted of
violating Indiana Code § 35-44-3-3(b)(1)(A), which makes it a
Class D felony to use a vehicle to resist arrest, or Indiana Code
§ 35-44-3-3(b)(1)(B), which also characterizes as a Class D
felony operating a vehicle in a way that creates a substantial
risk of bodily injury while resisting arrest. The documentary
record reveals only that Griffin was convicted of a Class D
felony resisting law enforcement by vehicle without specifying
which form of the Class D felony offense he committed.
Griffin concedes that the offense specified in subsection (b)(1)(B)
is a crime of violence; his argument on appeal is that felony
vehicular flight under subsection (b)(1)(A) is not a crime
of violence.
16 No. 10-2028
the Court has confirmed that “[f]elony vehicle flight,”
as set forth in Indiana Code § 35-44-3-3(b)(1)(A), is a
violent felony for purposes of the Armed Career Crim-
inal Act (“ACCA”). Id. at 2277. Using the categorical
approach to determine whether the offense is a crime of
violence under the ACCA, the Court held that felony
vehicular flight under Indiana law is inherently risky
and falls within the ACCA’s residual clause as “ ‘con-
duct that presents a serious potential risk of physical
injury to another.’ ” Id. at 2273 (quoting 18 U.S.C.
§ 924(e)(2)(B)(ii)). The Court rejected as “unconvincing”
an argument identical to Griffin’s here: that because
Indiana separately “criminalizes flight in which the
offender ‘operates a vehicle in a manner that creates a
substantial risk of bodily injury to another person,’ ” id. at
2276 (quoting IND. C ODE § 35-44-3-3(b)(1)(B)), it must
not have intended “subsection (b)(1)(A)’s general pro-
hibition on vehicle flight to encompass the particular
class of vehicle flights that subsection (b)(1)(B) reaches,”
id. The Court found significant that “Indiana treats vio-
lations of subsections (b)(1)(A) and (b)(1)(B) as crimes
of the same magnitude,” concluding from this fact that
subsection (b)(1)(B) does not punish a separate, more
risky class of vehicle flights. See id. at 2276-77. Rather,
the Court held, subsection (b)(1)(A) reflects a judgment
that when flight using a vehicle is involved, there is no
need to independently prove that fleeing from an officer
creates a substantial risk of bodily injury. See id.
The Supreme Court’s decision in Sykes leaves Griffin
without a leg to stand on. Although Indiana amended
its vehicular-flight statute in 2006 to establish dif-
No. 10-2028 17
ferent penalties for violations of subsections (b)(1)(A) and
(b)(1)(B)—making it possible to construe the majority
holding in Sykes as limited “to [Indiana’s] vehicular
flight statute as it existed from 1998 to 2006,” see id. at
2295 (Kagan, J., dissenting)—that is not a complication
here because Griffin’s predicate conviction for vehicular
flight occurred in 2003. And although Griffin was sen-
tenced as a career offender under the guidelines and not
as an armed career criminal under the ACCA, see id. at
2270, the definition of “violent felony” under the ACCA
is the same as the definition of “crime of violence” in
section 4B1.2 of the guidelines, and “[i]t would be inap-
propriate to treat identical texts differently just because
of a different caption,” United States v. Templeton, 543 F.3d
378, 380 (7th Cir. 2008). Accordingly, the district court
properly sentenced Griffin as a career offender under
the guidelines.
2. Fair Sentencing Act
Finally, Griffin argues that he is entitled to resentencing
under the FSA, but this argument also runs up against
circuit precedent. Griffin contends that the FSA should
apply retroactively, but we held in United States v. Bell,
624 F.3d 803 (7th Cir. 2010), and have confirmed in subse-
quent cases, that the FSA does not apply retroactively
pursuant to the federal savings statute, 1 U.S.C. § 109.
See, e.g., United States v. Fisher, 635 F.3d 336, 340 (7th Cir.
2011); Bell, 624 F.3d at 814-15. Griffin maintains that the
federal savings statute applies only to acts that repeal
statutes, not acts like the FSA that merely amend statutes,
18 No. 10-2028
but we rejected that precise argument in Bell. See Bell,
624 F.3d at 814.
Alternatively, Griffin argues that because his case was
pending on appeal when the FSA went into effect, he
is entitled to be resentenced in accordance with its new
crack-to-powder ratios. As we recently held in Fisher,
however, “the relevant date for a determination of retro-
activity” is not the date the judgment becomes final or
even the date of sentencing, but “the date of the under-
lying criminal conduct.” 635 F.3d at 340. Because the
FSA was signed into law on August 3, 2010, long after
Griffin’s underlying criminal conduct, it has no bearing
on his sentence.4
4
Moreover, Griffin admits that even if the FSA applied to him,
it would not change his statutory sentencing range for his
most serious offense (on Count I, the conspiracy count), and
his other terms of imprisonment were ordered to run concur-
rently. Under the new crack-to-powder ratio in the FSA, Griffin
would be subject to the same statutory sentencing range on
Count I if he were responsible for at least 280 grams of crack,
see 21 U.S.C. § 841(b)(1)(A)(iii), and the district court found
him responsible for more than 500 grams. Because an adjust-
ment to the statutory range for the other drug counts (Counts II
and III) based on the new crack-to-powder ratio would not
augment Griffin’s total punishment, even if the FSA applied,
there would be no need to consider its impact on his
statutory range for those other counts. See United States v.
Brough, 243 F.3d 1078, 1081 (7th Cir. 2001). Griffin maintains
that the concurrent-sentence doctrine does not apply to him
because the court imposed a special monetary assessment on
(continued...)
No. 10-2028 19
Finally, we note that Griffin is ineligible for a sentence
reduction under 18 U.S.C. § 3582(c)(2) based on the Sen-
tencing Commission’s amendments to the crack-cocaine
guidelines, which the Commission made retroactive
effective November 1, 2011 (absent congressional action
to the contrary). See News Release, U.S. Sentencing Com-
mission, U.S. Sentencing Commission Votes Unanimously
to Apply Fair Sentencing Act of 2010 Amendment to the
Federal Sentencing Guideslines Retroactively (June 30,
2011), available at http://www.ussc.gov/Legislative_and_
Public_A ffairs/Newsroom/Press_Releases/20110630_
Press_Release.pdf. Because the amendments leave the
career-offender guideline unchanged and Griffin’s offense
level of 37 and criminal-history category of VI were based
on that guideline, see U.S.S.G. § 4B1.1(b), the amendments
do not affect Griffin’s applicable guidelines range of 360
months to life.5 Accordingly, Griffin was not sentenced
4
(...continued)
Counts II and III. But we rejected an identical argument in
Brough, explaining that “[a]lthough the $100 special assessment
means that a court must consider every challenge to the propri-
ety of a conviction,” as long as the court has upheld the con-
victions, and hence the validity of the special assessments (as
we have here), “[t]here is no need to go further and consider
matters that do not affect the total sentencing package.” Id.
(emphasis added) (citing Ray v. United States, 481 U.S.
736 (1987)).
5
The career-offender guideline stipulated an offense level of
37 because Griffin’s statutory maximum sentence on Counts I,
(continued...)
20 No. 10-2028
“based on a sentencing range that has subsequently
been lowered by the Sentencing Commission,” 18 U.S.C.
§ 3582(c)(2), and he will not be eligible for a reduction
under § 3582(c)(2) when the amendments become retroac-
tive. See U.S.S.G. § 1B1.10 cmt. n.1(A) (“[A] reduction in
the defendant’s term of imprisonment is not authorized
under 18 U.S.C. § 3582(c)(2) and is not consistent with
this policy statement if . . . an amendment listed in sub-
section (c) is applicable to the defendant but the amend-
ment does not have the effect of lowering the defendant’s
applicable guideline range because of the operation of
another guideline. . . .”); United States v. Forman, 553 F.3d
585, 590 (7th Cir. 2009) (holding that because the defen-
dant’s guidelines range remained the same after a retro-
active guidelines amendment due to his career-offender
status, the amendment did not “have the effect of
lowering the defendant’s applicable guideline range
because of the operation of another guideline’—namely
the career-offender provision” (quoting U.S.S.G. § 1B1.10
cmt. n.1(A))).
A FFIRMED.
5
(...continued)
II, and III was life in prison. See U.S.S.G. § 4B1.1(b); see also
21 U.S.C. § 841(b)(1)(A)(ii), (b)(1)(B)(iii) (2009). Combined with
the criminal-history category of VI prescribed for all career
offenders, U.S.S.G. § 4B1.1(b), this offense level results in
a guidelines range of 360 months to life, see U.S.S.G. § 5A
(Sentencing Table).
7-22-11