File Na me: 13a0353n.06 NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION No. 12-3842 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff

S

Appellee ,
v. AL AN R. GRI FF I

N, Def endant – Appe llant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI ST R I CT COURT FOR THE NORTHERN DI STRI CT OF OH I O

OPI NI ON

Be fore : MOORE and STRANCH, Circuit J udg es; HOOD , District J udg e. * JANE B. STRANCH , Circuit J udg e. Def endant Alan R. Griff

in appea ls the decision of the district court deny ing him a sentenc e reduc tion under 18 U.S.C. § 3582(c) (2). Finding no abuse of discretion, we AFF I RM. I. F ACTS AND P ROCEDURAL HISTORY The g overnme nt indicted Griff in on one count of possession with inten t t o d i s t ri bute fifty g rams or more of coca ine base (“c rac k”), in violation of 21 U.S.C. §§ 841(a) (1) and (b)( 1)(A)

. The char g e stemmed from Griff in’s participa tion in a drug deal on May 17, 2007. As police approa ched during the transac tion, Griff in fled in his vehicle at a high rate of speed. He was appre hended afte r his car struck a pole. R

. 3 5 S en t

. Hr’g Tr. Pag e I D 168–69. Be cause of the larg e drug quantity

The Honora

ble J oseph M. Hood, United States District J udg e for t h e E ast ern District of * Kentucky , sitti ng by

desig nation. 1involved—559.04 g rams of cra ck coca ine and 328.59 g rams of marijuana —Griff in fac ed a statutory mandatory minimum sentenc e of ten y ear s and a maxi mum sentenc e of life in prison. He pled g uilty to the char g e pursua

nt to a plea a g ree ment. The prese ntence repor

t (“PSR”) set a base offe nse level of 34 under USSG § 2D1.1 (2007). PSR ¶ 12. Wit h a three -leve l reduc tion for timely acc eptanc e of responsibility , the total offe nse level was 31. PSR ¶¶ 18–20. Griff in’s prior rec ord ear

ned him five criminal history points, placing him in criminal history cate g ory I I I

. I n 1993, at ag e 15, Griff in struck and killed a pedestria n while eluding police in a stolen

car . PSR ¶ 24; R. 35 Sent. H r’g Tr. Pag e I D 169. He abandone d the car and fled the scene , but he

was later identified throug h fing erpr int analy sis. Id. Upon conviction for involuntary manslaug hter, the cour t sentence d Griff

in to prison in 1996 for five to fifte en y ear s. Id. Be fore Griff

in was appre hended on the 1993 offe nse, he used a firea rm to kill one person and wound another at ag e 17 in 1995. PSR ¶ 25; R. 35 Sent. Hr’g Tr. Pag e I D 169. Griff in arg ued with

one of the victims over a drug debt. When the victim did not produce money , Griff in obtained a g un from his friend and shot the victim, who fl ed t h e s cene with Griff in in chase

. When the victim

rea ched home, the main entra nce was locked. Griff

in shot the victim ag ain. The victim’s landlord opened the door t o let the vi ctim in. As the door closed, Griffin fired aga i n , k i l l ing the landlord. Convicted of involuntary manslaug hter with a firea rm and felonious assault, Griff in was sentenc ed to prison for nine to twenty -five y ear s. That sentenc e was imposed to ru n concur rently with the sentenc e for

the 1993 involuntary

manslaug hter c onviction. PS R ¶¶ 24–25. I n mid-Dec ember 2004, Griff in was parole d fr o m s t ate prison, but by May 2005 he was convicted of attempt ed d ru g possession and sentenc ed to six months in custody followed by six

2months on probation. PSR ¶¶ 25–26. Following rele ase from custody , Griff in committed the instant drug offe nse. PSR ¶ 2. At sent encing , the g overnme nt decide d not to arg ue that Griff in should be sentenc ed as a

caree r o ffender, prompting the district court to adopt t he guideline calculation in the P SR. R. 35, Sent. Hr’g Tr. Pag e I D at 159–61. The total offe nse l ev el of 31 combined with criminal history cate g ory I I I produce d an advisory g uideline rang e o f 1 35 to 168 months, highe r t han the statutory minimum sentenc e of 120 months. Id. ; PSR ¶¶ 47–48. Griff in’s counsel asked for a sentence of 120 months, while the g overnme nt soug ht a sentenc e at the top of the g uideline rang e. R. 35, Sent. H’rgTr. Pag e I D 162–70. The district court did not expressly ref er to the sentenc ing fac tors listed i n 1 8 U.S.C. § 3553(a) during the sentenc ing hear ing, but the court obviously ev aluated those fac tors during a

conver sation with the defe ndant before i m p osing sentenc e. The court considere d the nature and circ umstances of the offe nse, and Griff in’s history and char acte ristics, espec ially his disadvantag ed upbring ing, his honesty and cooper ation in taking responsibility for his offe nses, his prese nt family support, and his desire to act as a positive role model for his y oung son. Id. at 172– 7 4

. I n considering the nee d for the sentence to ref lect the seriousness of the offe nse, promote r espec t for the law, provide just punishment, aff ord adequate deter

renc e, and protec t the p u b lic from future crimes, the court emphasized to Griff in that a life sentenc e was available , but that the court did not believe such a sentenc e was appropr iate under all the ci rc u m s t ance s. Id. at 172–75. I nstead, the

co u rt opted for a sentenc e within the advisory g uideline rang e as sufficie nt, but not g rea ter t h an

nece ssary , to achie ve the purposes of sentenc ing. The court rej ec ted the parties’ sentenc ing

rec ommendations, settling instead on a term of 140 months in prison. Id. at 175. The court advised

3Griff

in, howeve r, that “y ou’re at the point now wher e I think any other offe nse. . . y ou ever commit is an automatic life se ntence .” Id. at 174–75. Griff in did not appeal. Following adoption of Amendments 750 and 759 to the crack coca ine g uidelines, in April 2012 Griff

in filed a motion for a sentenc e reduc ti o n under 18 U.S.C. § 3582(c) (2). Under the amende d g uideline rang e, Griff in’s tota l o ff

en s e level is 29. At criminal history cate g ory I I I , the applicable g uideline rang e would be 108 to 13 5 m o n t h s , restric ted by the statutory minimum sentenc e to 120 to 135 months. Griff in asked the court to reduc e his sentenc e to 120 months , but the district court de nied re lief. II. ANALYSIS We have jurisdiction of t his timely appeal under 18 U.S.C. § 3742(a) (3) because Griff in’s sentenc e of 140 months exceeds the amende d g uideline rang e of 120 t o 135 months. See United States v. Bowers , 615 F.3d 715, 718–1 9 (6 t h C i r. 2010) (discussing jurisdiction under § 3742); United States v. Daniel , 414 F. App’x 806, 807–09 (6th Cir. 2011) (re viewing denial of § 3582(c) (2) motion for abuse of discretion afte r Bowers wher e defe ndant arg ued his sentenc e exceede d the maxi mum of t he applicable guideline rang e). B eca use the parties ag ree that Griff in is elig ible for

a sentenc e reduc tion under § 3582(c) (2), we turn promptly to the question whether the district court abused its discretion in deny ing Griff in’s motion. See United States v. McClain , 691 F.3d 774, 776 (6th Cir. 2012). A district court contemplating whether t o g rant a sentenc e reduc tion must consider the § 3 5 5 3 (a ) fa ctors to the extent they are applicable , as well as “the nature and seriousness of t h e dang er to any person or the community that may be posed by a reduc tion in the defe ndant’s term of imprisonment”; th e court may “conside r post-sentenc ing conduct of the defe ndant that occur red afte r
4i m p o s i t i on of the term of imprisonment.” 18 U.S.C. § 3582(c) (2); USSG § 1B1.10 cmt. n . 1 (B ).

Sentence modification proce eding s, howeve r, ar e n o t equivalent to a full re- sentenc ing of the defe ndant. Dillon v. United States , 130 S. Ct . 2683, 2690–92 (2010). Mindful of its mandatory obliga tion to consider the § 3553(a) fac tors and public safe ty , the district court expressed deep conce rn about the dang er Griff in posed to the community

. R. 28 Pag e I D 128. Griff

in had “c ontinuously

exhibi ted a pr opensity

for da ng erous and illega l behavior” and had been “inca

rce rate d for most of his adult life.” Id. Twice convicted of involuntary manslaug hter, Griff in killed innocent by standers on both occa sions and also shot and wounded his intended targ et during the second incident. Id. “B ased on his violent backg round and history of perpe tual criminal activity upon rele ase from prior in car cer ation,” the court found that a sentenc e reduc tion was inappropria te bec ause “ public safe ty would not be serve d by

reduc ing” Griff

in’s sentenc e. Id. The court did not ree x amine ea ch applica ble § 3553(a ) fa ctor individually , but the court is not require d to articula te an analy sis of eac h sentenc i n g fac tor as long as the rec ord as a whole demonst ra t es t h at t h e court took the pertinent fac tors into acc ount. United St ates v. W atkins , 625 F.3d 277, 281 (6th Cir. 2010); United States v. Curry , 606 F.3d 323, 330 (6th Cir. 2010)

. Her e, as in Curry , the district court evalua ted the § 3553(a) fac tors at the orig inal sentenc ing. Id

. at 3 3 1; United St ates v. T

aylor , 445 F. App’ x 854, 856 (6th Cir. 2012). At that time, the court imposed a sentenc e of imprisonment of 1 4 0 m onths, twenty -eig ht months below the top of the applicable g uideline rang e. Although that sentenc e now exceeds the top of the amende d g uideline rang e by five

m o n t hs, the district court adequately explained that Griff in’s violent criminal past justified i t s decision to protec t the public rathe r than g rant Griff in a lower s en tence

. See United States v. Steve nson , 332 F. App’ x 261, 262–63 (6th Cir. 2009).

5I n support of his § 3582(c) (2) motion, Griff in submitted documentation showing that he is taking steps to fulfill an inmate skills development plan, including completion of a GED or high school diploma, as well as classes in writing , persona l financ e, drug educa tion, exe rc i s e, building trade s, and CDL licensing

. He also submitt ed written confirma tion that he has not been disciplined while incar cer ated. I n his view, these eff orts “may be taken as the most acc urate indicator of his prese nt purposes and te ndencie s.” Peppe r v. United States , 131 S. Ct 1229, 1242 (2011) ( internal citation and quotation marks omitted). We ag ree t h at Gr iffin’s eff orts are commendable and note that they provide important prepa ration for his ultimate return to productive participa tion in society

. Section 1B1.10, howeve r, permits—but does not require —the district court to consider post-sentenc ing reha bilitation. Ba sed

on Griff in’s criminal rec ord, the district court chose not to place as much weig ht on these eff orts and instead “chose to put more emphasis upon the seriousness of the offe nse and the need to protec t the public, which are equally valid sentenc ing c riteria unde r the g uidelines.” Daniel , 414 F. App’ x at 809. L ike the Daniel court, we do not find that the district court’s actions under these circ umstances rise to the level of reve rsible err or as we can “dete ct no abuse of discretion.” See id. We encour ag e d i s t rict courts, howeve r, when considering future motions for a sentenc e reduc tion u n d er § 3582(c) (2) to state on the rec ord their rea sons for g iving g rea ter weig ht to some fac tors over others. III. CONCLUSION Having car efully revie wed the rec ord befor e us, we are not persua ded that the district court abused its discr etion in de ny ing Griff in a sentenc e reduc tion unde r § 3582(c) (2). Acc ording ly , we AFF I RM.

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