United States v. Brandon Griffin

Filing

PER CURIAM OPINION FILED - THE COURT: JAMES B. LOKEN, STEVEN M. COLLOTON and SUSAN RICHARD NELSON (UNPUBLISHED) [3796403] [10-1321]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-1321
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United States of America,
Appellee,
v.
Brandon Howard Griffin,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the Western
* District of Arkansas.
*
* [UNPUBLISHED]
*
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Submitted: March 14, 2011
Filed: June 10, 2011
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Before LOKEN and COLLOTON, Circuit Judges, and NELSON,* District Judge.
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PER CURIAM.
Brandon Griffin appeals the district court’s1 66-month upward variance from
the U.S. Sentencing Guidelines (U.S.S.G.) advisory range of 63-78 months, arguing
that the resulting sentence is unreasonable. We affirm.

*

The Honorable Susan Richard Nelson, United States Judge for the District
of Minnesota, sitting by designation.
1

The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.

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On December 3, 2008, Griffin robbed a branch of U.S. Bank in Hot Springs,
Arkansas. During the robbery, he brandished a semi-automatic pistol and, shouting
obscenities, he ordered the bank’s five employees to the floor, including the branch
manager, who was eight months pregnant. Griffin commanded a teller to empty her
cash drawer at gun-point, asking, “Is that all you’ve got?” before taking the contents
and leaving. Griffin was apprehended shortly thereafter and pleaded guilty to one
count of taking money belonging to an institution insured by the Federal Deposit
Insurance Corporation by force, violence, and intimidation in violation of 18 U.S.C.
§ 2113(a) (Count I), and one count of possession of stolen firearms in violation of 18
U.S.C. §§ 922(j) and 924(a)(2) (Count II).
The United States Probation Office prepared a Presentence Report (PSR). The
PSR recounted Griffin’s use of a firearm, his aggressive behavior, and the statements
of three bank employees to the probation officer in which they described their fear
during the robbery and their resulting anxiety. In addition, the PSR noted Griffin’s
status as a discharged U.S. Marine Corps Iraq veteran, diagnosed with Post-Traumatic
Stress Disorder (PTSD). The PSR calculated a total offense level of 24. With
appellant’s criminal history category III2, the Guidelines suggested a range of
imprisonment between 63-78 months. Although Griffin filed objections to the PSR,
they did not impact the sentencing range calculation.
The district court gave notice that it was contemplating an upward departure or
variance in sentencing under 18 U.S.C. § 3553(a). The court indicated that the
possible bases for an upward departure or variance included victim impact, the nature
and circumstances of the offense, and other factors set forth in 18 U.S.C. § 3553(a).

2

The appellant had four criminal history points, which established a Criminal
History Category III.
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At the sentencing hearing, bank employees testified that the bank robbery led
to career changes, difficulties in personal relationships, and the need for mental health
therapy and medication. In delivering the sentence, the district court emphasized the
impact of the offense on the victims, noting that it might “never cease or never end.”
(S. Tr. 49.) The court also expressed the need for the sentence to reflect the
seriousness of the offense and to provide just punishment for the offense. After
considering these factors, the district court varied upward from the Guidelines range
and imposed a 144-month sentence for Count I, to be served concurrently with a 120month sentence for Count II.
We apply a deferential abuse of discretion standard in reviewing the imposition
of a sentence. United States v. Replogle, 628 F.3d 1026, 1031 (8th Cir. 2011) (citing
Gall v. United States, 552 U.S. 38, 41(2007)). This Court reviews a district court’s
sentence first for procedural error, then for substantive reasonableness. See United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). In the absence of
procedural error, as here, we consider the substantive reasonableness of the sentence
under an abuse of discretion standard. Id. at 461. An abuse of discretion in sentencing
occurs “‘where the sentencing court fails to consider a relevant factor that should
have received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of judgment
in weighing those factors.’” United States v. Bryant, 606 F.3d 912, 921 (8th Cir.
2010) (quoting United States v. Moore, 565 F.3d 435, 438 (8th Cir. 2009)). A nonGuidelines sentence may not be considered presumptively unreasonable, although “a
district judge must give serious consideration to the extent of any departure from the
Guidelines and must explain his conclusion that an unusually lenient or an unusually
harsh sentence is appropriate in a particular case with sufficient justifications.” Gall,
552 U.S. at 46. We consider the totality of the circumstances, including the extent
of any variance from the Guidelines, in reviewing the reasonableness of the sentence.
Id. at 51.

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Griffin concedes that the district court committed no procedural error; therefore,
we need only review the substantive reasonableness of the sentence. We conclude
that the district court did not abuse its discretion in selecting a sentence of 144
months’ imprisonment. The court explained that, in imposing the upward variance, it
did so primarily because of the first § 3553(a) factor, which concerns the nature and
circumstances of the offense. The court found it particularly troubling that Griffin,
armed and acting in an aggressive manner, forced the eight-months-pregnant branch
manager to the ground. (S. Tr. 49.) The court concluded that the bank robbery “has
resulted in psychological trauma for all these employees and I think those problems
will definitely continue. I think it has – his conduct has had life-altering and even
terminal effects on all of the victims.” (Id. at 49-50.) In addition, the court considered
the seriousness of the offense and the need for just punishment, both of which fall
under the second § 3553(a) factor. The court properly considered these factors and
gave them appropriate weight, in light of the totality of the circumstances.
Griffin also contends that he was treated differently than other similarly situated
defendants, arguing that an upward variance should be justified by multiple § 3553(a)
factors. Additionally, Griffin argues that, as compared to other criminal defendants,
he presented strong mitigating evidence. Citing our decision in United States v.
Werst, 334 F. App’x 779 (8th Cir. 2009) (unpublished per curiam), Griffin argues that
in that case, involving the same district judge, the same offense and the same 144month sentence, the court justified an upward variance in a bank robbery offense due
to "multiple factors." Here, Griffin contends, the court focused improperly on one
factor, namely, that Griffin proceeded with the offense against a pregnant victim.
Our decision in Werst makes clear that district courts are permitted considerable
discretion in determining which § 3553(a) factors are entitled to greater weight. As
we observed, "[w]e have interpreted Gall as confirming a district court's wide latitude
when weighing the § 3553(a) factors, thereby allowing it to assign some factors
greater weight than others in deciding whether ‘the § 3553(a) factors, on a whole,
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justify the extent of the variance.’” Werst, 334 F. App’x at 781(citing Gall, 552 U.S.
at 51). The record here reflects that in considering the § 3553(a) factors, the district
court gave greater weight to the nature and circumstances of the offense than to other
factors also considered. This judgment was within the district court’s discretion. The
court heard mitigating evidence from Griffin and his family members, who addressed
his military service and resulting PTSD diagnosis. In addition, the district court
considered letters submitted on Griffin’s behalf by family and friends, as well as the
legal arguments raised in Griffin’s Sentencing Memorandum. Ultimately, however,
the court determined that the circumstances of the robbery were not typical, but were
“particularly violent and out of the ordinary,” justifying an upward variance. (S. Tr.
51.) Giving deference to the district court as required by Gall, we conclude that
Griffin’s sentence is not unreasonable under § 3553(a). The district court did not
abuse its discretion in sentencing the appellant to 144 months in prison.
Accordingly, we affirm.
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