NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2588
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UNITED STATES OF AMERICA
v.
WALIK GRIGGS,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-99-cr-00584-001)
District Judge: Honorable Mary L. Cooper
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Submitted Pursuant to Third Circuit LAR 34.1(a)
November 14, 2012
Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.
(Filed: December 14, 2012)
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OPINION OF THE COURT
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FUENTES, Circuit Judge:
In this appeal, we are asked to consider the reasonableness of Walik Griggs’s
sentence of 23 months’ imprisonment, imposed consecutive to his state sentence, for a
violation of his supervised release. For the reasons set forth below, we will affirm.
I.
Because we write primarily for the parties, we set forth only the facts and
procedural history relevant to our conclusion.
In October 1999, Walik Griggs pleaded guilty to possession of a firearm by a
convicted felon. The District Court sentenced him to a 115 months term of imprisonment,
three years of supervised release, a fine, and a special assessment. After serving the
imprisonment portion of his sentence, Griggs began to serve a three-year period of
supervised release.
Six months into his supervised release, the U.S. Probation Department petitioned
the District Court for a warrant for Griggs’s arrest based on violations of the conditions
of his supervised release, including association with convicted felons, failure to comply
with drug testing, and falsification of monthly supervision reports. Griggs was arrested
and held until his violation hearing on November 17, 2008. Griggs was found guilty of
violating two of his conditions of supervised release, and he was sentenced on November
18, 2008 to the 26 days he had served. The District Court also re-imposed Griggs’s
original three-year term of supervised release with an added condition prohibiting gang
associations.
After Griggs failed to reside at his claimed address, notify the Probation
Department of a change of address, or make efforts to obtain employment, the Probation
Department petitioned the District Court in February 2009 to modify the conditions of
Griggs’s supervised release to impose four months of home confinement and electronic
monitoring. The District Court granted the petition and ordered the modification.
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Nevertheless, less than a month later, on March 10, 2009, while subject to home
confinement, Griggs was arrested by New Jersey state police officers in conjunction with
a high-speed chase. He was charged with aggravated assault, eluding police with a motor
vehicle, reckless endangerment, obstruction of administration of law, possession of
marijuana, driving while intoxicated, possession of a controlled dangerous substance in a
motor vehicle, reckless driving, open container, speeding, and a myriad of other motor
vehicle violations. Again, the Probation Department petitioned the District Court for a
warrant for Griggs’s arrest, based on violations of his supervised release, this time for the
commission of another crime. The Probation Department then lodged a detainer with the
correctional facility where Griggs was held, requiring that he be turned over to the court
upon the conclusion of his state sentence. Griggs ultimately pleaded guilty in New Jersey
court to eluding police and driving while intoxicated, among other offenses, and he was
sentenced to a seven-year term of imprisonment.
On June 1, 2012, Griggs pleaded guilty to violating the conditions of his
supervised release based on the commission of another crime, due to the March 2009
offense. During the plea hearing, the District Court conducted a thorough colloquy during
which it confirmed that Griggs understood that the statutory maximum term of
imprisonment was 24 months and that the sentence could be imposed either consecutively
or concurrently with any state sentence, but that the decision to impose the sentence
consecutively was entirely within the District Court’s discretion and was recommended
by the United States Sentencing Guidelines (the “Guidelines”). Griggs stated that he
understood these facts. (App. 34, 41, 52-53.) The District Court then conducted the
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sentencing hearing, where Griggs argued for a concurrent sentence because “a
punishment ha[d] been administered” and “there’s no further punishment that would be
required.” (App. 84, 86-87.) The Government argued for a consecutive sentence based on
the Sentencing Commission’s “very strong position” on the issue and that sentencing
concurrently in this matter “would render supervised release a toothless tiger,” by giving
Griggs “a free pass . . . on his violation of supervised release.” (App. 79.) After
calculating the advisory Guideline range of 30 to 37 months, which exceeded the 24-
month statutory maximum, and recognizing the Guidelines’ strong policy in favor of
consecutive sentences, the District Court considered the relevant factors under 18 U.S.C.
§ 3553(a).
The District Court carefully evaluated the arguments of both parties, Griggs’s
expressions of remorse, the conditions of his confinement in state custody, which Griggs
argued warranted leniency, the conflicts between Griggs and his probation officer, and
the sentence that Griggs was serving for his state conviction. The Court also considered
the dangerous situation created by the underlying conduct and Griggs’s significant
criminal history since the age of 12. The Court found particularly relevant Griggs’s
frequent earlier violations of supervised release that occurred over a short period of time
and that the Court had previously sentenced Griggs leniently based on his statements of
remorse. The Court then sentenced Griggs to 23 months of imprisonment to run
consecutively with his state sentence and declined to impose further supervision, finding
that Griggs was not a good candidate for supervised release based on his three violations.
Griggs timely appealed.
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II.
A.
The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3583(e). We
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
Our first step in reviewing the reasonableness of a sentence is to determine
whether the District Court committed a significant procedural error, “such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” United States v. Tomko, 562
F.3d 558, 567 (3d Cir. 2009) (en banc) (citations and internal quotation marks omitted). If
the District Court’s procedure is satisfactory, then at the second step, we must consider
the sentence’s substantive reasonableness, requiring us “not to focus on one or two
factors, but on the totality of the circumstances.” Id. Griggs, as the party challenging the
sentence, has the burden of demonstrating unreasonableness. See id.
An abuse-of-discretion standard of review applies to both inquiries. United States
v. Doe, 617 F.3d 766, 769 (3d Cir. 2010). “[I]f the district court’s sentence is
procedurally sound, we will affirm it unless no reasonable sentencing court would have
imposed the same sentence on that particular defendant for the reasons the district court
provided.” Tomko, 562 F.3d at 568. We will also give “due deference” to the District
Court’s evaluation of the § 3553(a) factors because “[t]he sentencing judge has access to,
and greater familiarity with, the individual case and the individual defendant before him.”
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United States v. Gall, 552 U.S. 38, 51-52 (2007) (citations and internal quotation marks
omitted).
B.
On appeal, Griggs argues that the District Court’s imposition of a consecutive
sentence of 23 months of imprisonment is greater than necessary to fulfill the goals of
specific deterrence and public protection. Having reviewed the parties’ briefs, the record,
and the District Court’s reasons for sentencing Griggs to a 23-month consecutive
sentence, we conclude that Griggs’s sentence is both procedurally and substantively
reasonable.
The District Court properly calculated the Guidelines range of 30 to 37 months,
recognized that it exceeded the statutory maximum of 24 months, and then considered the
relevant § 3553(a) factors, finding particularly relevant § 3553(a)(1), which considers the
nature and circumstances of Griggs’s offense and his history and characteristics. It noted
Griggs’s extensive criminal history and his earlier violations of supervised release over a
very short time period. The Court also recognized that it had previously been “persuaded
by his protestations of remorse and assertions of rehabilitation and resolve” to impose
lenient sentences. (App. 103.) Another factor considered was the seriousness of the
underlying state offense, which occurred during a time period in which Griggs was
subject to home confinement. (App. 96, 100.) In the end, the District Court found that a
23-month consecutive sentence would promote adequate deterrence of other crimes by
Griggs and protect the public from future crimes by him, while ensuring that it was no
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more restrictive or punitive than necessary to achieve those goals. We are satisfied that
the District Court’s procedure was reasonable.
Furthermore, the sentence was substantively reasonable. A violation of supervised
release is a “breach of the Court’s trust.” United States v. Dees, 467 F.3d 847, 853 (3d
Cir. 2006). Here, Griggs had over a short period of time repeatedly breached the Court’s
trust by violating the conditions of his supervised release. As Griggs had demonstrated
his inability to comply with the conditions of his supervised release, the Court did not
abuse its discretion in deciding that the 23-month sentence be served consecutively to
Griggs’s state sentence.
Griggs also argues that the District Court erred in failing to discuss his need for
vocational, educational, and substance abuse rehabilitation. However, Griggs failed to
raise this issue at the time of sentencing, and “[i]t is ‘not incumbent on the District
[Court] to raise every conceivable relevant issue on [its] own initiative’ during
sentencing.” United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010) (quoting Gall v.
United States, 552 U.S. 38, 54 (2007)).
Finally, Griggs argues that a two-year delay between his violation and his
revocation hearing rendered his sentence unreasonable. Within days of Griggs’s
violation, the United States Marshals Service lodged a detainer against Griggs at state
facility where he was held, advising him that it would retain custody upon his release
from the state facility. Revocation hearings are not criminal prosecutions, and “the full
panoply of rights due a defendant” do not apply. Morrissey v. Brewer, 408 U.S. 471, 480
(1972). However, because supervised release revocation hearings do infringe on liberty
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interests, limited protections under the Due Process Clause apply. Id. at 484-90; see also
United States v. Poellnitz, 372 F.3d 562, 570 (3d Cir. 2004) (determining reasonableness
of two-year delay between supervised release violation petition and hearing based on
length of delay, reason for the delay, the appellant’s assertion of his right, prejudice to the
appellant, and the reason why the appellant was in custody and holding that the delay was
reasonable when the district court waited until the adjudication of the state offense before
proceeding with revocation hearing). Griggs was in state custody for the underlying
offense for the entirety of the two-year delay between the supervised release petition and
hearing. The incarceration resulted from his state offense, and the delay did not subject
him to excessive incarceration or prejudice his ability to defend at his revocation hearing.
Thus, this argument is also without merit.
III.
For the foregoing reasons, we will affirm the District Court’s judgment and
sentence.
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