1

The Honorable Donald J. Stohr, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3334

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri

* 

Tydarryl Griffin, also known as * 

Bull, *

*

Appellant. *

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Submitted: April 12, 2005 

Filed: July 8, 2005

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Before COLLOTON, McMILLIAN and BENTON, Circuit Judges.

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McMILLIAN, Circuit Judge.

Tydarryl Griffin (defendant) appeals from a final judgment entered in the

United States District Court1

 for the Eastern District of Missouri sentencing him to
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twenty-two months imprisonment upon revocation of his supervised release. United

States v. Griffin, No. 4:97CR75 (Sept. 17, 2004) (judgment in a criminal case). For

reversal, defendant argues that the revocation of his supervised release pursuant to

the United States Sentencing Guidelines (guidelines) violated his constitutional rights

under principles announced in Blakely v. Washington, 542 U.S. 296 (2004) (Blakely).

We affirm.

Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231.

Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice of appeal

was timely filed pursuant to Fed. R. App. P. 4(b).

In the underlying criminal action, defendant was sentenced on October 23,

1998, to seventy-two month imprisonment and five years supervised release for

possession of cocaine base with the intent to distribute. After completing his prison

term, defendant was arrested in February 2004, while on supervised release. He was

charged with, among other things, being a felon in possession of a weapon. The

government moved for revocation of defendant’s supervised release. Defendant

waived his right to a preliminary hearing on the motion. A sentencing hearing was

held on September 17, 2004. Defendant admitted that he had violated conditions of

his supervised release, including possessing a firearm and associating with a person

convicted of a felony without the permission of his probation officer. Defendant

agreed that he had committed a Grade B violation and that his criminal history

category was VI, resulting in a guidelines range of twenty-one to twenty-seven

months imprisonment. The district court sentenced defendant to twenty-two months

imprisonment. Defendant appealed.

On appeal, defendant argues that the federal sentencing guidelines are

unconstitutional under principles announced in Blakely, and therefore his sentence

is also unconstitutional because it is derived from the guidelines. Defendant filed his

briefs on appeal before the Supreme Court’s decision in United States v. Booker, 125
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S. Ct. 738 (2005), which did apply the constitutional principles discussed in Blakely

to the federal sentencing guidelines.

Defendant also concedes that the plain error standard applies because he did

not raise his constitutional challenge in the district court. In order to prevail under

the plain error standard, defendant must prove not only that a constitutional violation

has occurred, but also that the error has seriously affected the fairness, integrity or

public reputation of the judicial proceedings. United States v. Olano, 507 U.S. 725,

736 (1993). 

This court recently addressed a similar post-Blakely constitutional challenge

to a revocation of supervised release. In United States v. Coleman, 404 F.3d 1103,

1104 (2005) (per curiam) (Coleman), this court explained: 

Although the Supreme Court did hold the Sentencing Reform Act

unconstitutional after appellant filed his brief, [Booker, 125 S. Ct. at

764-65,] the Court did not discard the guidelines wholesale. Instead, it

excised from the Sentencing Reform Act only those provisions that

made application of the sentencing guidelines mandatory and thus were

contrary to the sixth amendment. Id. at 764. Among the remaining

provisions of the Sentencing Reform Act that the Court recognized as

constitutionally valid was the supervised release statute, 18 U.S.C.

§ 3583.

This court went on to observe in Coleman, 404 F.3d at 1104, that the advisory

sentencing guidelines scheme established in Booker is indistinguishable from that

which prevailed for supervised release revocations under § 3583 prior to Booker and

Blakely. “In such circumstances, § 3583 leaves to the discretion of the district judge

the decision to revoke a term of supervised release and impose imprisonment,

provided the judge takes into account the relevant considerations set out in 18 U.S.C.

§ 3553(a).” Coleman, 404 F.3d at 1104-05 (citing 18 U.S.C. § 3583(e)(3); U.S.S.G.

ch. 7, pt. A(1), A(2)(b), A(3)(a)). This court thus concluded in Coleman, 404 F.3d
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1105, that the defendant’s constitutional challenge failed. Likewise, in the present

case, defendant’s challenge to the constitutionality of the guidelines’ supervised

release provisions fails as a matter of law.

Moreover, defendant admitted that he violated the conditions of his supervised

release and agreed to an applicable sentencing range consistent with the prison term

the district court imposed. The district court did not abuse its discretion, much less

commit an error that seriously affected the fairness, integrity, or public reputation of

the judicial proceedings.

The judgment of the district court is affirmed.

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