NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0275n.06 No. 09-4246 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA,
P laintif f-App ellee,

v. MARQUES GRI FF I

N, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN DI STRI CT OF OH I O

O P I N I O N

Before: M OORE, S UTTON, and DONALD, Circ uit Jud ges KA REN NELSO N MOORE, Circuit Judge. Def endant- Appellant Marque s Griff in
appea ls his senten ce on the g round that the g overnme nt failed to abide by its plea- ag ree ment obliga tion to rec ommend a sentence reduction for acc eptanc e of responsibility pursuant to United States Sentencing Guideline (“U .S.S.G.” or “Guideline” ) § 3E1.1 (2008). Acc ording to Griff in, the
g overnment should have rec ommended the reduc tion notwithstanding the fac t that Griff in was caug ht selling cra ck coca ine while on pretria l bond. I n light of Griff in’s conduct, we do not believe that the g overnme nt’s actions re sulted in plain error . Acc ording ly , we AF F IRM

. I. BACKG ROUND Griff in ple aded g uilty to being a fe lon in possession of a fire arm, in violation of 18 U.S.C. § 922(g )(1) (Count I ), and to “knowing ly and intentionally possess[i ng ] with the intent to distribute and distribut[ ing] 5 g rams of more of a mix ture or substance containing a detect ab le amount ofNo. 09-4246

United States v. Griffin

coca ine base (cr ack coca ine),” in violation of 21 U.S.C. § 841(a) (1) and (b)( 1)(B ) (Count I I ). R. 1 (I ndictment dated April 21, 2009 at 1–2). I n return for the g uil t y p l ea , t he g overnme nt ag ree d,
among other thi ng s, to rec ommend a s en t en ce reduc tion for acce ptance of responsibili ty pursuant to U.S.S.G. § 3E1.1. The re levant plea -ag ree ment provision rea ds as follows: 1
For the purpose of deter

mining whether or not Def endant may be entitled to a three

- (3)- level reduc tion in his offe n s e le v e l f o r a c c e p tance of responsibility under 3E1.1(a) and (b), the g overnme nt ag ree s to advise the Court, by way of motion at the time of sentenc ing, that Def

endant ti m el y notified the g overnme nt of an intent to plead g uilty , and to rec ommend a three -leve l reduc t i o n t o the sentenc ing g uideline calc ulation. R. 9 (Plea Ag ree ment dated July 8, 2009 ¶ 7, at 5). When Griff

in appea red in court on J uly 8, 2009, to enter his plea, the g overnme nt advised the district court of its disco v er y t h at , j u s t one day ear lier, Griff in had sold 3.5 g rams of cra ck

coca ine to an underc over ag ent from his mother’s residenc e. The sale took place while Griff in was subject to e lectronic monitoring as a condition of supervision afte r having been rele ased on bond.
Be cause Griff

in’s illega l conduct violated the conditions of hi s rele ase, the g overnme nt soug ht an order pursuant to 18 U.S.C. § 3143(a) (2) detaining Griff in pending further proce eding s. R. 17 (Plea

Guideline § 3E1.1(a) require s that the district court g rant a two-leve l reduc tion in the offe nse 1 level “[i] f the defe ndant clea rly demonstrates acc eptanc e of responsibility for his offe nse.” Provided that the defe ndant has made the appropr iate showing under subsection (a) , subsection (b) indicates that t h e d efe ndant may also qualify for an additional one-le vel reduc tion if he “has assisted authorities in the investiga tion or prosec ution of his own misconduct by timely notify ing authorities of his intention to en t er a plea of g uilty .” Among other things, appropr iate considerations in apply ing subsection (a) include whether the defe ndant has voluntarily “ter minat[ ed] or withdraw[n] from criminal conduct or associations.” U.S. S E N T E N C I N G G U I D E L I N E S M A N U A L § 3E1. 1 , cmt

. n.1(B ). 2No. 09-4246

United States v. Griffin
Hr’g Tr. at 21, 23). Finding ample evidenc e to substantiate the g overnme nt’s acc usation, the district
court re voked Gr iffin’s bond and or dere d him detained. Id. at 21, 24. The prese ntence repor

t (“PSR”) was issued on November 17, 2009, and rec ommended that the di str i ct court decline t o g rant the § 3E1.1 reduc tion for acce ptance of responsibili ty in light of Griff in’s continued participa tion in illega l drug activity

. As evidenc e of such activity , the PSR cited both Griff

in’s sale of 3.5 g rams of cra ck cocaine during a controlled buy on J uly 7, 20 0 9 , an d t he discovery of 10.5 g rams of coca ine, along with drug para pherna lia and $2,250.00 in c ash, during a

sear ch of Griff

in’s residenc e that took place the following day

. Griff in f iled a written objection to the PSR ’s rec ommendation to deny cre dit for acc eptanc e of responsi b i l ity , claiming that he had
cooper ated with the police afte r his J uly 7 arr est and ha d not been indicted on a ny new c harg es. At s en t en cing , defe nse counsel reque sted a sentenc e reduc tion for acc eptanc e of responsibility , but conce ded that “[Griffin] may not have demonstrated [h i s acc eptanc e of responsibility ] in a clea

r way , but I think that truly Mr. Griff in has acc epted all the responsibility that he has acc epted.

. . . [A] lthough his outward conduct smacks the Court in its fac e, I think he’s totally

remorse ful for that

. ” R

. 16 (Sent. Hr’g Tr. at 5). Rather than rec ommending the barg ained- for § 3E1.1 reduc tion, the gover nment reque sted that the district court follow the prese ntence repor t. Noting that one fa ctor in apply ing the § 3E1.1 reduc tion is that “the Defe ndant s hould voluntarily terminate or withdraw from criminal conduct or associations,” the district judge observe d that “the Def endant continued to participa te in criminal activity , selling drug s while under Pretrial supervision, and as [defen s e co u n sel] pointed out, smacke d the C ourt in the face [ for] g iving him

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an opportunity to g et himself in a better position for sentenc ing than he otherwise would be.” Id. at 11–12. Thus, the district judge conclude d, “[n] o way am I g ranting an acc eptanc e of responsibility when he sells drug s from his house while I have him on Pretrial supervision when he said he would abide by my conditions. So t hat is denied.” Id. at 12. Once the applicable Guideline rang e had been deter mined, the district court paused to inquire whether there wer e any objections up to that poin t , stating, “[t] he Court has alre ady dealt with

ac ce p t an ce of responsibility

. Mr. L uskin, is there any thing else, other objections or other iss u es befor e I move to the [18 U.S.C. §] 3553(a) fac tors? ” Id. at 17. Def ense counsel had no objections. After apply ing the § 3553(a) fac tors, the district court proc eede d to sentence Griff in to concurr ent 120-month prison sentenc es on both counts followed by a three -y ear term of supervised rele ase on Count I to be serve d conc urre ntly with a four- y ear term of supervised rele ase on Count I I

. The district judge then as ked defe nse counsel whether there was “any thing further on behalf of Mr. Griff in at this time.” R. 16 (Sent. Hr’g Tr. at 26). Def ense counsel ag ain stated no objections. Thus,
at no point during the sentenc ing hear ing did defe nse counsel make any claim that the g overnme nt had bre ache d the plea a g ree ment. This appea l followed. II. ANALYSIS A. Standard of

Review As an initial matter, we addre ss the appropr iate standard of revie w to be applied in this case . Griff in arg ues that the district court’s g ener ic “any thing further ” inquiry afte r imposing the sentenc e falls short of the pr ocedur al re quirements set out in United States v. Bostic , 371 F.3d 865, 872–73

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(6th Cir. 2004) , and asser ts that we should revie w de novo his claim that the g overnme nt br eac hed the plea a g ree ment. We disag ree . At the sentenc ing hear ing, the distri ct court invited objections to his calc ulations of the
sentenc ing g uidelines immediately afte r making a deter mination on the acc eptanc e-of -re sponsibili ty reduc tion. Be cause the asser ted brea ch of the plea ag ree ment by the g overnme nt 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 sentenc ing dict at es o ur standard of revie w. On the contra ry , the district court had alre ady specific ally put defe nse counsel on notice of the need to addr ess the pl ea- ag ree ment issue by asking for objections to the sentenc ing calc ulations immediately afte r deny ing Griff in’s reque st for a reduc tion under § 3E1.1. As a conseque nce, Griff in’s failure to prese rve his claim of err or by raising an objec tion then or at any time during the hea

ring nece ssarily

forf eits his claim. Any arg ument to the contra

ry is fore closed by the rec ent Supreme Court decision in Puck ett v. United States , 556 U.S. 129, 133 (2009), which involved a nea rly identical alleg ation of a ple aag ree ment brea ch arising from the g overnme nt’s ref usal to re co m mend an acc eptanc e-of

responsibility reduc tion following the defe ndant’s post-indictment criminal conduct. I n concluding that the plain-e rror

standard a

pplied, the Court noted that
I mportantly , at no time during the exchang e did Puckett’s counsel object that the Government was viol at ing its obliga tions under the plea ag ree ment by backing awa y from its reque st for the reduc tion. He never cited the rele vant provision of the plea ag ree ment. And he did not move to withdraw Puckett’s plea on g rounds that the Gover nment had broke n its sentencing promises.

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Id. The same is true here , and our revi ew i s t h er efor e “strictly circ umscribed.” Id. at 134. Acc ording ly , if he is to preva il, Griff in must show: (1) that an “er ror or defe ct” occur

red; (2) that 2 the err or was “cle ar or obvious”; (3) that the err or “af fec ted [hi s] substantia l ri gh t s ”— e. g ., that it “‘a ffe cted the outcome of the district court proce eding s’”; and (4) that “the err or ‘“se riously aff ect[ed] the fairne ss, integ rity or public reputa tion of judicial proce eding s.”’” Id. at 135 (quoting United States v. Olano , 507 U.S. 725, 734, 736 (1993)).
B. Th e Im pact of the Gove rnm ent’s Allege d Breach of the Ple a Agre em ent I n light of Puck

ett , our re maining a

naly sis is straig htforwa

rd. As indicated a

bove, Puck

ett involved circ umstances that are near ly identical to the fac ts of Griff in’s case : the g overnme nt ha d
ag ree d pursuant to a plea ag ree ment to rec ommend a three -leve l reduc tion for acc eptanc e of responsibility , but then declined to follow throug h with that obliga tion afte r the defe ndant eng ag ed in criminal conduct in the intervening period betwee n indictment and sentenc ing. 556 U.S. 131–32. Also as is the case her e, defe nse counsel failed to object to the g overnme nt’s brea ch of the plea
ag ree ment at any point during the sentenc ing hear ing. Id. at 133. Although the Supreme Court noted

The g overnme nt arg ues that there was no err or beca use Griff in’s criminal conduct absolved 2 i t o f any obliga tion to rec ommend the § 3E1.1 reduc tion at sentenc ing. Dicta sug g ests that the Supreme Court may

well be a menable to that arg ument. Puck ett , 556 U.S. at 140 n.2 (noting that the arg ument that the g overnme nt was “excused fr o m i t s obliga tion to asser

t ‘demonstra

ted acc eptanc e of responsibility ’ beca use Puckett’s ong oing criminal conduct hindere d perf ormanc e . . . m ight have convinced us had it been pressed” ). But we, like the S upreme Court, have no need t o addre ss the merits of the g overnme nt’s arg ument here

. Be cause whether the g overnme nt’s conduct actua lly constituted a brea ch of the plea ag ree ment has no bear ing on the outcome of Griff in’s case , we assume for purposes of this opinion that the g overnme nt’s conduct was in fac t a brea ch and that the first prong of the plain-e rror analy sis is t here fore satisfied.

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that the g overnme nt’s failure to uphold its plea- ag ree ment obliga tions was “undoubtedly a violation of the defe ndant’s rig hts,” id. at 136 (citing Santobello v. New Y ork , 404 U.S. 257, 262 (1971)) , the Court conclude d that the violation nonetheless did not result in plain err or. I n its analy sis, the Court expli citly reje cted an arg ument simil ar t o one Griff in makes here —that Santobello v. New Y ork mandates a rema

nd for rese ntencing an y t ime the g overnme nt “re neg es on a plea barg ain.” Id. at 139–41. I nstead, the Court deter mined that a showing of prejudice under the th i rd p ro ng of the plain-er ror analy sis in this context require s the defe ndant to demonstrate that the err or impacted his
sentenc e, not mere ly

that defe ndant might not have enter ed into the pl ea ag ree ment had he know n of the g overnme nt’s intent to violate it. Id. at 142 n.4. The district court’s emphatic reje ction of the § 3E1.1 reduc tion in this c ase sug g ests that Griff in c an make no such showing here

. Fur thermore , Puck ett reje cted the defe ndant’s arg ument that the g overnme nt’s brea ch u n der analog ous circ umstances constituted a miscarr iag e of justice. On the contra ry , in e valuating the fourth prong of the plain-e rror

analy sis the Court stated that [i ]t is true enoug h that when the Gover nment rene g es on a plea deal, the integ rity of the sy stem may be called into question, but there may well be counter vailing fac tors in particula

r case s. Puckett is ag ain a g ood example: Given that he obviously did not ce as e h i s life of crime, rec eipt of a sentenc ing reduc tion for acce ptance o f responsibilit

y would have been so ludicrous as itse lf to compromise the public reputa tion of judicial proce eding s. Id. at 142–43. Be cause Griff in’s actions are virtually indisti ng uishable fr o m the circ umstances addre ssed in Puck

ett , that analy sis is equally applicable here . Griff

in’s claim there fore must fail.

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III. CONCLUSION
I n rea ching this conclusion, we do not in any way seek to diminis h the importance of the
g overnme nt upholding its end of a plea barg ain. But reg ardle ss of whether the g overnme nt’s actions here act u all y constituted a brea ch, g iven Griff in’s criminal conduct, we cannot say that any plain

err or re sulted. We theref ore AF F IRM Griff

in’s sentenc e.

8