UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4541

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHESTER GRIFFITHS,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. J. Frederick Motz, District Judge.

(1:06-cr-00388-JFM)

Submitted: July 31, 2008 Decided: September 5, 2008

Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky,

for Appellant. Rod J. Rosenstein, United States Attorney, Kwame J.

Manley, Assistant United States Attorney, Baltimore, Maryland, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.
*

The record does not reveal what the white powder was.

- 2 -

PER CURIAM:

Chester Griffiths pled guilty to possession of 100

kilograms marijuana with intent to distribute, in violation of 21

U.S.C. § 841(a)(1) (2000). The district court varied upward from

the guideline range of 120 months and imposed a sentence of 180

months. Griffiths contends on appeal that (1) the district court

erred in varying upward from the guideline range pursuant to 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); (2) the extent of the

variance was unreasonable; and (3) the court plainly erred in

failing to give him notice of a possible variance. We affirm.

In June 2006, Griffiths was found driving a Jeep in

Maryland with a suspended registration and an expired driver’s

license. The Jeep contained 157 kilograms of marijuana, which was

worth about $400,000, and $1820 in cash. At Griffiths’ home in

Baltimore, police found $2324 in cash, two scales, and a plastic

bag of white powder.*

 Because Griffiths had a prior drug

conviction, he was subject to a ten-year mandatory minimum sentence

under § 841(b)(1)(B). At some point before he entered his guilty

plea, Griffiths moved for a ruling on whether he was a career

offender. After a hearing, the district court ruled that Griffiths

was not a career offender. Griffiths subsequently pled guilty to

the instant offense.
- 3 -

Despite the court’s ruling, the probation officer

recommended in the presentence report that Griffiths qualified for

sentencing as a career offender, with an advisory guideline range

of 262-327 months. Before sentencing, the government indicated

its intention to seek an upward departure to a fifteen-year

sentence based on under-representation of Griffiths’ criminal

history. See U.S. Sentencing Guidelines Manual § 4A1.3, p.s.

(2006). The government explained that it believed Griffiths

qualified for sentencing as a career offender, but acknowledged the

court’s ruling that he was not a career offender, and that the

ruling effectively reduced the guideline range to the mandatory

minimum sentence of 120 months. See USSG § 5G1.1(b).

At sentencing, the court imposed a 180-month sentence,

explaining that it was a variance, not the criminal history

departure requested by the government. The court stated that the

variance was appropriate under 18 U.S.C.A. § 3553 (West 2000 &

Supp. 2008) because (1) the offense was a serious one, given that

the marijuana was worth $400,000; (2) Griffiths’ history and

characteristics indicated that he had not been able to conform his

conduct to the law; and (3) the length of the sentence was

necessary to promote respect for the law and provide just

punishment.

On appeal, Griffiths argues that the court erred by

imposing a variance sentence because the drug amount and his
- 4 -

criminal history were already considered and accounted for in the

calculation of the guideline range. He also contends that the

extent of the variance was unreasonable. Last, Griffiths maintains

that the district court plainly erred in failing to give him notice

that it was considering an upward variance, with the result that he

was not prepared to confront the issue at sentencing.

First, we note that Griffiths was aware that the

government would seek an upward departure based on underrepresentation of his criminal history, but he was not given notice

that the court might vary from the guideline range. Because

Griffiths did not object in the district court to the lack of

notice concerning the variance, this issue is reviewed for plain

error. United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.

2007). Rule 32(h) of the Federal Rules of Criminal Procedure

requires the sentencing court to give the parties reasonable notice

when it is considering a departure on a ground not identified as a

possible basis for departure either in the presentence report or in

a party’s prehearing submission. However, the Supreme Court held

in Irizarry v. United States, 128 S. Ct. 2198 (2008), that upward

variances do not require notice under either Rule 32(h) or Burns v.

United States, 501 U.S. 129 (1991). Irizarry, 128 S. Ct. at 2203.

Therefore, no error occurred.
- 5 -

In Gall v. United States, 128 S. Ct. 586 (2007), the

Supreme Court set out the standards for appellate review of

sentences as follows: 

Regardless of whether the sentence imposed is inside or

outside the Guidelines range, the appellate court must

review the sentence under an abuse-of-discretion

standard. It must first ensure that the district court

committed no significant procedural error, such as

failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence — including an

explanation for any deviation from the Guidelines range.

Assuming that the district court’s sentencing decision is

procedurally sound, the appellate court should then

consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.

Id. at 597. 

Although the drug amount and Griffiths’ criminal history

were accounted for in the guideline calculation, the sentencing

court had the discretion to decide that the seriousness of the

offense and the defendant’s history and characteristics were

§ 3553(a) factors that warranted a sentence outside the range.

Griffiths has not identified any procedural error made by the

court.

Further, the sentence is not substantively unreasonable.

As explained in Gall, when reviewing a sentence outside the

guideline range for substantive reasonableness, the appellate court

should “take into account the totality of the circumstances

. . . .” Gall, 128 S. Ct. at 597. The court – 
- 6 -

may consider the extent of the deviation, but must give

due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the

variance. The fact that the appellate court might

reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the

district court.

Id.

Griffiths argues that the variance was excessive because

he was merely transporting the marijuana for others, and because

the court found that he was not a career offender. However, in

light of Gall’s conclusion that the sentencing court “is in a

superior position to find facts and judge their import under

§ 3553(a) in the individual case,” id., and that its sentencing

decision should be accorded great deference, we conclude that the

sentence is not substantively unreasonable. 

We therefore affirm the sentence imposed by the district

court. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED