USCA11 Case: 21-12727 Document: 40-1 Date Filed: 01/18/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12727
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY MARKEITH GRIFFIN,
a.k.a. OGC,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:15-cr-00453-MSS-AEP-1
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2 Opinion of the Court 21-12727
____________________
Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Troy Markeith Griffin appeals his sentence of 235 months’
imprisonment for conspiracy to commit Hobbs Act robbery and
Hobbs Act robbery, which the district court imposed upon resen-
tencing after granting in part his 28 U.S.C. § 2255 motion. After
careful review, we dismiss in part and affirm in part.
I.
A grand jury returned an indictment charging Griffin and
several codefendants with conspiracy to commit Hobbs Act rob-
bery (Count 1), Hobbs Act robbery (Count 2), and brandishing a
firearm during and in relation to a crime of violence, specifically
the conspiracy charged in Count 1 (Count 3). Griffin pled not
guilty and proceeded to a jury trial; the jury found him guilty on
all counts.
Griffin’s guidelines range was 168 to 210 months’ imprison-
ment on Counts 1 and 2, plus 84 months’ imprisonment on Count
3, to run consecutively with the term of imprisonment for the
other counts. The district court sentenced Griffin to a total sen-
tence of 294 months’ imprisonment: 210 months for Counts 1 and
2 and 84 months for Count 3. We affirmed Griffin’s convictions
and sentences. See United States v. Griffin, 724 F. App’x 808 (11th
Cir. 2018).
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21-12727 Opinion of the Court 3
Griffin thereafter filed a pro se § 2255 motion to vacate his
sentence, primarily raising ineffective-assistance-of-counsel
claims. During those proceedings, the district court ordered the
government to address the effect of United States v. Davis,
139 S. Ct. 2319 (2019), on Griffin’s case. In response, the govern-
ment conceded that Griffin was entitled to relief from his Count 3
conviction and sentence because, under Davis, conspiracy to com-
mit Hobbs Act robbery was not a crime of violence.
The district court granted in part and denied in part Grif-
fin’s § 2255 motion. The district court ordered that Griffin’s con-
viction and sentence on Count 3 be vacated but otherwise denied
all requested relief and left intact Griffin’s convictions on Counts 1
and 2. The court denied Griffin a certificate of appealability on the
claims it rejected.
In anticipation of his resentencing on Counts 1 and 2, the
probation office prepared a presentence investigation report
(“PSR”). The PSR described the offense conduct, which involved
Griffin recruiting his codefendants to rob a bar. Griffin, who
drove the getaway car, was the only defendant to proceed to a
jury trial; his codefendants pled guilty. The PSR described Grif-
fin’s adjustment to incarceration, which included numerous disci-
plinary infractions.
The PSR calculated Griffin’s base offense level as 20 under
Section 2B3.1(a) of the Sentencing Guidelines. The PSR included
several enhancements, including: a six-level enhancement under
§ 2B3.1(b)(2)(B) because guns were used during the robbery. With
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4 Opinion of the Court 21-12727
this enhancement and several others, Griffin’s total offense level
was 36. Griffin’s criminal history category was VI, which resulted
in a guidelines range of 324 to 405 months’ imprisonment. The
statutory maximum term of imprisonment for each of Counts 1
and 2 was 240 months.
In a sentencing memorandum, Griffin requested a sentence
of 210 months’ imprisonment or less. He noted that his codefend-
ants, all of whom were inside the bar for the robbery rather than
waiting in the car as he was, were not convicted of the substan-
tive robbery count in Count 2 because they all pled guilty. They
therefore received far lesser sentences than did Griffin. Griffin ar-
gued that the PSR’s inclusion of an enhancement under § 2B3.1(a)
created an unwarranted disparity between his guidelines range
and his co-defendant’s sentences, most of whom were not subject
to the enhancement despite actually brandishing the firearms in-
side the bar. Griffin further stated that his disciplinary infractions
while in federal custody for these offenses, rather than previous
convictions, were minimal and that he had made positive efforts
to change his behavior, including enrolling in GED classes and
drug treatment programs and volunteering to sanitize dorms.
The government, by contrast, argued that a 294-month
sentence—the same sentence the district court originally imposed
on all three counts—was appropriate.
At a resentencing hearing, Griffin argued for a downward
variance of 168 months’ imprisonment, reiterating arguments he
made in his sentencing memorandum. Griffin addressed the
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21-12727 Opinion of the Court 5
court, explaining how he had changed in the six years since his
sentence began. The district court sentenced Griffin to 235
months’ imprisonment on each of Counts 1 and 2, to run concur-
rently, followed by 3 years of supervised release. The court stated
that it had considered the parties’ arguments, the background and
history of the case, the PSR, and Griffin’s conduct while incarcer-
ated. The court further stated that it had varied downward from
the applicable guidelines range based on Griffin’s post-conviction
conduct, his efforts at rehabilitation while incarcerated, and his al-
locution, which the court opined demonstrated maturity.
Griffin objected to the substantive reasonableness of the
sentence. This is his appeal. 1
1 In addition to the issue we address on appeal—the substantive reasonable-
ness of Griffin’s sentence—Griffin asks us to review the district court’s choice
of remedy on his § 2255 motion. Specifically, he argues that the district court
abused its discretion in failing to vacate all three of his counts of conviction
with direction that a new trial be scheduled. We lack jurisdiction to entertain
this challenge, however, because Griffin does not have a certificate of appeal-
ability to proceed on it. See United States v. Cody, 998 F.3d 912, 914–15 (11th
Cir. 2021) (“[E]ven in an appeal from a new sentence, to the extent a prisoner
appeals the denial of his section 2255 motion as to his conviction, those claims
are part of his section 2255 proceedings and we may not consider them with-
out a certificate of appealability. By contrast, direct appeal matters that arise
after the proceeding under section 2255—for example, an argument that the
district court misapplied the sentencing guidelines at a prisoner’s resentenc-
ing—do not require a certificate of appealability.” (alterations adopted) (cita-
tions omitted) (internal quotation marks omitted)), cert. denied, 142 S. Ct.
1419 (2022). Although Griffin argues that he does not need a certificate of
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6 Opinion of the Court 21-12727
II.
To determine the substantive reasonableness of a sentence,
we consider the totality of the circumstances under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 28, 51
(2007). The party challenging the sentence bears the burden of es-
tablishing that it is unreasonable based on the facts of the case and
the 18 U.S.C. § 3553(a) factors. 2 United States v. Tome, 611 F.3d
1371, 1378 (11th Cir. 2010).
We must give due deference to the district court to consider
and weigh the proper sentencing factors. United States v. Shabazz,
887 F.3d 1204, 1224 (11th Cir. 2018). The district court does not
have to give all the factors equal weight and is afforded discretion
to attach great weight to one factor over another. United States v.
Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).
appealability, he fails to grapple with Cody, which is on all fours with his case
and binds this panel.
2 Under 18 U.S.C. § 3553(a), a district court’s sentence must be sufficient, but
not greater than necessary, to achieve the goals of sentencing: reflecting the
seriousness of the offense, promoting respect for the law, providing just pun-
ishment, deterring future criminal conduct, protecting the public, and provid-
ing the defendant with any needed training or treatment. 18 U.S.C. § 3553(a).
Section 3553(a) also requires district courts to consider the nature and circum-
stances of the offense, the defendant’s history and characteristics, the kinds of
sentences available, the Sentencing Guidelines, any pertinent policy state-
ment, the need to avoid disparate sentences for defendants with similar rec-
ords, and the need to provide restitution to any victims. Id.
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21-12727 Opinion of the Court 7
A district court abuses its considerable discretion when it
“(1) fails to afford consideration to relevant factors that were due
significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in con-
sidering the proper factors.” United States v. Irey, 612 F.3d 1160,
1189 (11th Cir. 2010) (en banc) (internal quotation marks omitted).
III.
Griffin argues that his 235-month sentence is substantively
unreasonable. He notes that his original sentence for all three
counts was 294 months, 84 of which were for his now-vacated
Count 3 conviction. Thus, he argues, 210 months’ imprisonment
would have been appropriate. Griffin further argues that the dis-
trict court failed to avoid unwarranted sentencing disparities be-
tween himself and his co-defendants. Finally, Griffin argues that
the district court failed to give enough weight to his post-sentenc-
ing rehabilitation. None of Griffin’s arguments convinces us that
the district court abused its discretion.
First, regardless of whether we would have imposed the
same sentence, the district court did not abuse its discretion merely
by arriving at a sentence higher than his original sentence for
Counts 1 and 2. Second, although district courts should “avoid un-
warranted sentencing disparities among defendants with similar
records who have been found guilty of similar criminal conduct,”
United States v. Docampo, 573 F.3d 1091, 1102 (11th Cir. 2009) (in-
ternal quotation marks omitted), Griffin’s codefendants were not
similarly situated to him. Each of Griffin’s codefendants pled guilty
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8 Opinion of the Court 21-12727
to fewer offenses. And three of his codefendants offered substantial
assistance to the government. See id. at 1101 (“[D]efendants who
cooperate with the government and enter a written plea agree-
ment are not similarly situated to a defendant who provides no as-
sistance to the government and proceeds to trial.”); United States
v. Williams, 526 F.3d 1312, 1324 (11th Cir. 2008) (indicating that
defendants are not similarly situated when one provides substantial
assistance to the government and the other does not); United States
v. Jayyousi, 657 F.3d 1085, 1117–18 (11th Cir. 2011) (explaining that
a district court should consider distinctions between the defend-
ant’s circumstances and other offenders who were convicted of less
serious offenses).
Third, the district court expressly accounted for Griffin’s
post-sentencing rehabilitation when deciding to vary downward
from his applicable guidelines range. Griffin asks us to reverse the
district court for failing to give even more weight to this factor, but
our abuse-of-discretion standard does not permit us to do so.
Rosales-Bruno, 789 F.3d at 1254.
In sum, the district court was within its discretion to resen-
tence Griffin to 235 months’ imprisonment based on the factors it
considered.
IV.
We dismiss the portion of Griffin’s appeal challenging the
district court’s choice of remedy in partially granting his § 2255
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21-12727 Opinion of the Court 9
motion and affirm the sentence the district court imposed upon re-
sentencing.
DISMISSED IN PART AND AFFIRMED IN PART.