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, *

 * Appeal from the United States

v. * District Court for the Western

 * District of Arkansas. 

Brandon Howard Griffin, * 

 * [UNPUBLISHED]

Appellant. *

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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.
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 120-

month 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 144-

month 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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