Case: 13-20711 Document: 00512843636 Page: 1 Date Filed: 11/20/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-20711
Fifth Circuit
FILED
Summary Calendar November 20, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
MCKINLEY GRIFFIN, III,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-486-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
McKinley Griffin, III, appeals the 24-month sentence imposed following
the revocation of his supervised release for his conviction for possession of
stolen mail. He argues that his sentence, which exceeds the range set forth in
the nonbinding policy statements found in Chapter Seven of the Sentencing
Guidelines but is within the statutory maximum, is procedurally and
substantively unreasonable. Griffin specifically alleges that the district court
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-20711 Document: 00512843636 Page: 2 Date Filed: 11/20/2014
No. 13-20711
failed to adequately explain the sentence imposed, relied on erroneous facts,
applied the wrong criminal history category, and did not consider the Chapter
Seven policy statements.
Ordinarily, revocation sentences are reviewed under the “plainly
unreasonable” standard. See United States v. Miller, 634 F.3d 841, 843 (5th
Cir. 2011). However, because Griffin did not specifically object to the
procedural unreasonableness of his sentence in the district court, we review
for plain error only. See United States v. Kirklin, 701 F.3d 177, 178-79 (5th
Cir. 2012). Griffin did object to his sentence as “substantially unreasonable”
in the district court; therefore, we review the substantive reasonableness of his
sentence for an abuse of discretion. See United States v. Kippers, 685 F.3d 491,
499-500 (5th Cir. 2012).
Regarding Griffin’s assertion that the district court did not provide an
adequate explanation for the sentence imposed, the record reflects that the
district court considered the appropriate 18 U.S.C. § 3553(a) sentencing factors
as well as the policy statements found in Chapter Seven of the Guidelines. See
United States v. Whitelaw, 580 F.3d 256, 262-65 (5th Cir. 2009) (recognizing
that implicit consideration of the § 3553 factors is sufficient to satisfy 18 U.S.C.
§ 3553(c)’s requirement that the district court provide reasons for an above
guidelines sentence). Although the district court’s statement in imposing
sentence was brief, in the context of the revocation hearing, the explanation
was sufficient; therefore, Griffin has not shown clear or obvious error. See Rita
v. United States, 551 U.S. 338, 356 (2007); Kippers, 685 F.3d at 498-99. Nor
has he demonstrated that any error affected his substantial rights. See United
States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).
Moreover, the record reveals that the district court utilized the proper
criminal history category and explicitly considered the Chapter Seven policy
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Case: 13-20711 Document: 00512843636 Page: 3 Date Filed: 11/20/2014
No. 13-20711
statements when determining the sentence to impose. To the extent that the
district court might have relied on an erroneous fact when it incorrectly stated
that Griffin had violated the terms of his supervised release within one month,
rather than within one year, of his release from prison, Griffin has not shown
that any error affected his substantial rights by demonstrating that he would
have received a lesser sentence but for the error. See id. at 647. During the
sentencing and revocation hearing, the district court expressly noted that it
had considered the § 3553 sentencing factors and the Chapter Seven policy
statements and specifically expressed concern about Griffin’s extensive
criminal history and the fact that this was his third revocation case.
Accordingly, nothing in the record suggests that the district court heavily
relied on erroneous facts to determine the sentence imposed.
Upon revocation of supervised release, a district court may impose any
sentence within the statutory maximum term of imprisonment. See United
States v. McKinney, 520 F.3d 425, 427-28 (5th Cir. 2008). Moreover, revocation
policy statement sentencing ranges are advisory only, and district courts have
“considerable discretion” when determining revocation sentences. United
States v. Warren, 720 F.3d 321, 328-29 (5th Cir. 2013). Accordingly, Griffin’s
24-month sentence, which is within the statutory maximum prison term, is
substantively reasonable. See id.; Whitelaw, 580 F.3d at 265. This is
particularly true given Griffin’s extensive and repetitive criminal history. See
Kippers, 685 F.3d at 500-01. The district court did not abuse its discretion by
sentencing Griffin to a sentence within the statutory maximum, and his
sentence is not plainly unreasonable. See id. at 500-01; Miller, 634 F.3d at 843.
The judgment of the district court is AFFIRMED.
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