United States v. Jimmy Powell-Griffin

                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 22a0220n.06

                                           No. 21-2967

                          UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                     FILED
                                                                                  Jun 02, 2022
                                                         )                    DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,
                                                         )
        Plaintiff-Appellee,                              )       ON APPEAL FROM THE
                                                         )       UNITED STATES DISTRICT
 v.                                                      )       COURT FOR THE EASTERN
                                                         )       DISTRICT OF MICHIGAN
 JIMMY POWELL-GRIFFIN,                                   )
        Defendant-Appellant.                             )
                                                         )                              OPINION
                                                         )

Before: BOGGS, COLE, and GRIFFIN, Circuit Judges.

       BOGGS, Circuit Judge. Jimmy Powell-Griffin appeals his sentence following his convic-

tion as a felon in possession of a firearm. After a disturbance at a bar, police arrested Powell-

Griffin and found him with drugs and a loaded gun. He pleaded guilty to the gun charge, and the

district court sentenced him to 78 months of imprisonment—within the range recommended by

the Sentencing Guidelines. On appeal, the defendant raises a single issue: whether the court plainly

erred in considering certain factors when imposing the sentence. We affirm.

                                        BACKGROUND

       Jimmy Powell-Griffin was released from a term of imprisonment for being a felon in pos-

session of a firearm. Eighty-three days later, he caused a disturbance at a bar in Jackson, Michi-

gan—while in possession of a loaded pistol. When police arrived, they searched Powell-Griffin

and found the gun, along with drugs and drug paraphernalia. He was again charged with a felon-

in-possession offense, as well as possession with intent to distribute cocaine. Powell-Griffin

pleaded guilty only to the gun charge, but he did not enter into a plea agreement under Federal
No. 21-2967, United States v. Powell-Griffin


Rule of Criminal Procedure 11, meaning that the government reserved the right to pursue the drug

charges and Powell-Griffin preserved his right to appeal any sentence. Based in part on his lengthy

criminal history, the presentence investigation report calculated a recommended range of 70 to 87

months of imprisonment according to the Sentencing Guidelines.

       At sentencing, the government sought a term of imprisonment at the top of the range, which

the district court did not find necessary after considering the 18 U.S.C. § 3553(a) factors. Instead,

the appropriate sentence was “more modest but still very firm,” with an aim to achieve deterrence.

The court referenced Powell-Griffin’s “history of experiences with the criminal justice system,

which is lengthy, persistent and which has a pattern.” The court elaborated: “The pattern tends to

involve firearms.1 Nobody has been shot and killed yet, but without firm court intervention, it is

my view that this defendant has a relatively high likelihood of propensity of being involved in a

shooting tragedy with dire consequences, either to him or somebody else.” Referencing the fact

that Powell-Griffin’s father was serving a life sentence in prison, the court also stated: “If he wants

to be like his father and live out his years in the penitentiary system . . . his constant association

with illegal firearms or the illegal possession of firearms is certainly going to enhance the likeli-

hood, increase the likelihood of that outcome.” The court sentenced Powell-Griffin to 78 months

of imprisonment followed by 2 years of supervised release, within the Guidelines range.

       Powell-Griffin now appeals, claiming that the district court’s statements regarding his like-

lihood of committing a future firearm offense and ending up like his father were improperly spec-

ulative and not based on facts in the record.




1
 Prior to the instant case, Powell-Griffin was convicted in Michigan state court of one felon-in-
possession offense and two separate instances of carrying a concealed weapon.


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                                             ANALYSIS

       A claim that a defendant was improperly sentenced based on inaccurate information is a

challenge to a sentence’s procedural reasonableness. United States v. Mack, 808 F.3d 1074, 1084

(6th Cir. 2015) (“A sentence is procedurally unreasonable if, among other things, the district court

. . . selects a sentence based on clearly erroneous facts . . . .” (cleaned up)). Because Powell-Griffin

raises this claim for the first time on appeal, we review for plain error—error “so plain that the

trial judge was derelict in countenancing it.” United States v. Vonner, 516 F.3d 382, 385–86 (6th

Cir. 2008) (en banc) (cleaned up).

       We find no such error here. The district court referenced two of the § 3553(a) factors as

“most important” in handing down its sentence—deterrence and just punishment—and Powell-

Griffin’s arguments regarding his future likelihood of committing firearm-related offenses fall into

the former category. See 18 U.S.C. § 3553(a)(2)(A)–(B). The district court associated deterrence

with Powell-Griffin’s “responsibility to act as an adult citizen, a law-abiding citizen and to avoid

his association with firearms.” The § 3553(a)(2)(B) deterrence at issue in this case is therefore

specific deterrence, which “looks to dissuade an individual defendant from committing future

crimes,” rather than general deterrence, which “aims to have the same effect on the population at

large.” United States v. Boucher, 937 F.3d 702, 710 (6th Cir. 2019) (cleaned up). It was proper

for the district court to consider the fact that this was Powell-Griffin’s fourth firearm-related con-

viction, and that continued unlawful possession of firearms can lead to “a shooting tragedy with

dire consequences, either to him or somebody else”—including the consequence of life imprison-

ment, as was the case with Powell-Griffin’s father. With this in mind, the court reasoned that a

longer sentence would be necessary to ensure that Powell-Griffin was adequately deterred from a

future offense.



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       Although Powell-Griffin does not suggest as much, it could be argued that specific consid-

eration of his past offenses in the context of deterrence was improper, because past offenses are

already taken into account through the criminal history section of the Guidelines. E.g., United

States v. Kirchhof, 505 F.3d 409, 415 (6th Cir. 2007) (explaining, in the context of an exemplary

personal record, that a “lack of prior criminal history was already taken into account in calculating

[defendant’s] guidelines range”). But even prohibited factors may “still be relevant insofar as they

bear some connection to permissible considerations,” such as specific deterrence. See Boucher,

937 F.3d at 711 (cleaned up). Indeed, the need to deter a defendant “from committing other crimes”

includes whether “he would get himself involved in anything like this again.” Id. at 710 (cleaned

up). Therefore, even if it could be considered improper in the abstract for the district court to

discuss the likelihood of Powell-Griffin’s using firearms in the future, that discussion was suffi-

ciently tied to specific deterrence that the sentence imposed here was not plainly erroneous.

                                         CONCLUSION

       For the reasons above, the judgment of the district court is AFFIRMED.




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