USA v. Marques Griffin

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Karen Nelson Moore, Authoring Judge; Jeffrey S. Sutton, Circuit Judge and Bernice Bouie Donald, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0275n.06
No. 09-4246

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Mar 12, 2012

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Plaintiff-Appellee,
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v.
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MARQUES GRIFFIN,
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Defendant-Appellant.
_______________________________________)

LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

OPINION

Before: MOORE, SUTTON, and DONALD, Circuit Judges
KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Marques Griffin
appeals his sentence on the ground that the government failed to abide by its plea-agreement
obligation to recommend a sentence reduction for acceptance of responsibility pursuant to United
States Sentencing Guideline (“U.S.S.G.” or “Guideline”) § 3E1.1 (2008). According to Griffin, the
government should have recommended the reduction notwithstanding the fact that Griffin was
caught selling crack cocaine while on pretrial bond. In light of Griffin’s conduct, we do not believe
that the government’s actions resulted in plain error. Accordingly, we AFFIRM.
I. BACKGROUND
Griffin pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (Count I), and to “knowingly and intentionally possess[ing] with the intent to distribute
and distribut[ing] 5 grams of more of a mixture or substance containing a detectable amount of

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cocaine base (crack cocaine),” in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count II). R. 1
(Indictment dated April 21, 2009 at 1–2). In return for the guilty plea, the government agreed,
among other things, to recommend a sentence reduction for acceptance of responsibility pursuant
to U.S.S.G. § 3E1.1.1 The relevant plea-agreement provision reads as follows:
For the purpose of determining whether or not Defendant may be entitled to a three(3)-level reduction in his offense level for acceptance of responsibility under 3E1.1(a)
and (b), the government agrees to advise the Court, by way of motion at the time of
sentencing, that Defendant timely notified the government of an intent to plead
guilty, and to recommend a three-level reduction to the sentencing guideline
calculation.
R. 9 (Plea Agreement dated July 8, 2009 ¶ 7, at 5).
When Griffin appeared in court on July 8, 2009, to enter his plea, the government advised
the district court of its discovery that, just one day earlier, Griffin had sold 3.5 grams of crack
cocaine to an undercover agent from his mother’s residence. The sale took place while Griffin was
subject to electronic monitoring as a condition of supervision after having been released on bond.
Because Griffin’s illegal conduct violated the conditions of his release, the government sought an
order pursuant to 18 U.S.C. § 3143(a)(2) detaining Griffin pending further proceedings. R. 17 (Plea

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Guideline § 3E1.1(a) requires that the district court grant a two-level reduction in the offense
level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” Provided
that the defendant has made the appropriate showing under subsection (a), subsection (b) indicates
that the defendant may also qualify for an additional one-level reduction if he “has assisted
authorities in the investigation or prosecution of his own misconduct by timely notifying authorities
of his intention to enter a plea of guilty.” Among other things, appropriate considerations in
applying subsection (a) include whether the defendant has voluntarily “terminat[ed] or withdraw[n]
from criminal conduct or associations.” U.S. SENTENCING GUIDELINES MANUAL § 3E1.1, cmt.
n.1(B).
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Hr’g Tr. at 21, 23). Finding ample evidence to substantiate the government’s accusation, the district
court revoked Griffin’s bond and ordered him detained. Id. at 21, 24.
The presentence report (“PSR”) was issued on November 17, 2009, and recommended that
the district court decline to grant the § 3E1.1 reduction for acceptance of responsibility in light of
Griffin’s continued participation in illegal drug activity. As evidence of such activity, the PSR cited
both Griffin’s sale of 3.5 grams of crack cocaine during a controlled buy on July 7, 2009, and the
discovery of 10.5 grams of cocaine, along with drug paraphernalia and $2,250.00 in cash, during a
search of Griffin’s residence that took place the following day. Griffin filed a written objection to
the PSR’s recommendation to deny credit for acceptance of responsibility, claiming that he had
cooperated with the police after his July 7 arrest and had not been indicted on any new charges.
At sentencing, defense counsel requested a sentence reduction for acceptance of
responsibility, but conceded that “[Griffin] may not have demonstrated [his acceptance of
responsibility] in a clear way, but I think that truly Mr. Griffin has accepted all the responsibility that
he has accepted. . . . [A]lthough his outward conduct smacks the Court in its face, I think he’s totally
remorseful for that.” R. 16 (Sent. Hr’g Tr. at 5). Rather than recommending the bargained-for
§ 3E1.1 reduction, the government requested that the district court follow the presentence report.
Noting that one factor in applying the § 3E1.1 reduction is that “the Defendant should voluntarily
terminate or withdraw from criminal conduct or associations,” the district judge observed that “the
Defendant continued to participate in criminal activity, selling drugs while under Pretrial
supervision, and as [defense counsel] pointed out, smacked the Court in the face [for] giving him

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an opportunity to get himself in a better position for sentencing than he otherwise would be.” Id. at
11–12. Thus, the district judge concluded, “[n]o way am I granting an acceptance of responsibility
when he sells drugs from his house while I have him on Pretrial supervision when he said he would
abide by my conditions. So that is denied.” Id. at 12.
Once the applicable Guideline range had been determined, the district court paused to inquire
whether there were any objections up to that point, stating, “[t]he Court has already dealt with
acceptance of responsibility. Mr. Luskin, is there anything else, other objections or other issues
before I move to the [18 U.S.C. §] 3553(a) factors?” Id. at 17. Defense counsel had no objections.
After applying the § 3553(a) factors, the district court proceeded to sentence Griffin to concurrent
120-month prison sentences on both counts followed by a three-year term of supervised release on
Count I to be served concurrently with a four-year term of supervised release on Count II. The
district judge then asked defense counsel whether there was “anything further on behalf of Mr.
Griffin at this time.” R. 16 (Sent. Hr’g Tr. at 26). Defense counsel again stated no objections. Thus,
at no point during the sentencing hearing did defense counsel make any claim that the government
had breached the plea agreement. This appeal followed.
II. ANALYSIS
A. Standard of Review
As an initial matter, we address the appropriate standard of review to be applied in this case.
Griffin argues that the district court’s generic “anything further” inquiry after imposing the sentence
falls short of the procedural requirements set out in United States v. Bostic, 371 F.3d 865, 872–73

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(6th Cir. 2004), and asserts that we should review de novo his claim that the government breached
the plea agreement. We disagree.
At the sentencing hearing, the district court invited objections to his calculations of the
sentencing guidelines immediately after making a determination on the acceptance-of-responsibility
reduction. Because the asserted breach of the plea agreement by the government should have been
quite evident at that time, we do not believe that the district judge’s failure to ask the Bostic question
at the end of sentencing dictates our standard of review. On the contrary, the district court had
already specifically put defense counsel on notice of the need to address the plea-agreement issue
by asking for objections to the sentencing calculations immediately after denying Griffin’s request
for a reduction under § 3E1.1. As a consequence, Griffin’s failure to preserve his claim of error by
raising an objection then or at any time during the hearing necessarily forfeits his claim.
Any argument to the contrary is foreclosed by the recent Supreme Court decision in Puckett
v. United States, 556 U.S. 129, 133 (2009), which involved a nearly identical allegation of a pleaagreement breach arising from the government’s refusal to recommend an acceptance-ofresponsibility reduction following the defendant’s post-indictment criminal conduct. In concluding
that the plain-error standard applied, the Court noted that
Importantly, at no time during the exchange did Puckett’s counsel object that
the Government was violating its obligations under the plea agreement by backing
away from its request for the reduction. He never cited the relevant provision of the
plea agreement. And he did not move to withdraw Puckett’s plea on grounds that the
Government had broken its sentencing promises.

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Id. The same is true here, and our review is therefore “strictly circumscribed.” Id. at 134.
Accordingly, if he is to prevail, Griffin must show: (1) that an “error or defect” occurred;2 (2) that
the error was “clear or obvious”; (3) that the error “affected [his] substantial rights”—e.g., that it
“‘affected the outcome of the district court proceedings’”; and (4) that “the error ‘“seriously
affect[ed] the fairness, integrity or public reputation of judicial proceedings.”’” Id. at 135 (quoting
United States v. Olano, 507 U.S. 725, 734, 736 (1993)).
B. The Impact of the Government’s Alleged Breach of the Plea Agreement
In light of Puckett, our remaining analysis is straightforward. As indicated above, Puckett
involved circumstances that are nearly identical to the facts of Griffin’s case: the government had
agreed pursuant to a plea agreement to recommend a three-level reduction for acceptance of
responsibility, but then declined to follow through with that obligation after the defendant engaged
in criminal conduct in the intervening period between indictment and sentencing. 556 U.S. 131–32.
Also as is the case here, defense counsel failed to object to the government’s breach of the plea
agreement at any point during the sentencing hearing. Id. at 133. Although the Supreme Court noted

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The government argues that there was no error because Griffin’s criminal conduct absolved
it of any obligation to recommend the § 3E1.1 reduction at sentencing. Dicta suggests that the
Supreme Court may well be amenable to that argument. Puckett, 556 U.S. at 140 n.2 (noting that
the argument that the government was “excused from its obligation to assert ‘demonstrated
acceptance of responsibility’ because Puckett’s ongoing criminal conduct hindered performance . . .
might have convinced us had it been pressed”). But we, like the Supreme Court, have no need to
address the merits of the government’s argument here. Because whether the government’s conduct
actually constituted a breach of the plea agreement has no bearing on the outcome of Griffin’s case,
we assume for purposes of this opinion that the government’s conduct was in fact a breach and that
the first prong of the plain-error analysis is therefore satisfied.
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that the government’s failure to uphold its plea-agreement obligations was “undoubtedly a violation
of the defendant’s rights,” id. at 136 (citing Santobello v. New York, 404 U.S. 257, 262 (1971)), the
Court concluded that the violation nonetheless did not result in plain error. In its analysis, the Court
explicitly rejected an argument similar to one Griffin makes here—that Santobello v. New York
mandates a remand for resentencing any time the government “reneges on a plea bargain.” Id. at
139–41. Instead, the Court determined that a showing of prejudice under the third prong of the
plain-error analysis in this context requires the defendant to demonstrate that the error impacted his
sentence, not merely that defendant might not have entered into the plea agreement had he known
of the government’s intent to violate it. Id. at 142 n.4. The district court’s emphatic rejection of the
§ 3E1.1 reduction in this case suggests that Griffin can make no such showing here. Furthermore,
Puckett rejected the defendant’s argument that the government’s breach under analogous
circumstances constituted a miscarriage of justice. On the contrary, in evaluating the fourth prong
of the plain-error analysis the Court stated that
[i]t is true enough that when the Government reneges on a plea deal, the integrity of
the system may be called into question, but there may well be countervailing factors
in particular cases. Puckett is again a good example: Given that he obviously did not
cease his life of crime, receipt of a sentencing reduction for acceptance of
responsibility would have been so ludicrous as itself to compromise the public
reputation of judicial proceedings.
Id. at 142–43. Because Griffin’s actions are virtually indistinguishable from the circumstances
addressed in Puckett, that analysis is equally applicable here. Griffin’s claim therefore must fail.

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III. CONCLUSION
In reaching this conclusion, we do not in any way seek to diminish the importance of the
government upholding its end of a plea bargain. But regardless of whether the government’s actions
here actually constituted a breach, given Griffin’s criminal conduct, we cannot say that any plain
error resulted. We therefore AFFIRM Griffin’s sentence.

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