RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 17a0096p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

NIKITA GRIFFIN, 

Defendant-Appellant. 

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No. 16-4127 

Appeal from the United States District Court 

for the Northern District of Ohio at Cleveland. 

No. 1:15-cr-00045-2—James S. Gwin, District Judge. 

Decided and Filed: April 26, 2017 

 Before: GIBBONS, COOK, and GRIFFIN, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Kevin M. Cafferkey, Cleveland, Ohio, for Appellant. Paul M. Flannery, UNITED 

STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. 

_________________ 

OPINION 

_________________ 

GRIFFIN, Circuit Judge. Defendant Nikita Griffin pleaded guilty to conspiring to submit 

false income tax returns in violation of 18 U.S.C. § 286. He appealed his twelve-month 

sentence, and we remanded for resentencing because the district court made insufficient factual 

findings to support its imposition of a two-level enhancement for obstructing justice and its 

denial of a two-level reduction for acceptance of responsibility. United States v. Griffin, 656 F. 

>
No. 16-4127 United States v. Griffin Page 2

App’x 138, 139 (6th Cir. 2016). Griffin now appeals from the ten-month sentence the district 

court imposed on remand. For the reasons set forth below, we dismiss this appeal. 

I. 

 Defendant pleaded guilty to conspiring to defraud the government by submitting false 

income tax refund claims and obtaining the fraudulent proceeds. The indictment described a 

scheme in which a co-defendant prepared fraudulent tax returns that generated “refund 

anticipation” loan checks from a bank, which Griffin cashed. Pursuant to a written plea 

agreement, Griffin understood the maximum penalty was up to ten years imprisonment, three 

years of supervised release, a $250,000 fine, and a $100 special assessment. He further 

understood the district court would determine the advisory Guideline range at sentencing and 

could “depart or vary from the advisory guideline range.” 

 Griffin’s plea agreement also contained an appellate waiver provision, stating in relevant 

part that: 

Defendant acknowledges having been advised by counsel of Defendant’s rights, 

in limited circumstances, to appeal the conviction or sentence in this case, 

including the appeal right conferred by 18 U.S.C. § 3742, and to challenge the 

conviction or sentence collaterally through a post-conviction proceeding, 

including a proceeding under 28 U.S.C. § 2255. Defendant expressly and 

voluntarily waives those rights, except as specifically reserved below. Defendant 

reserves the right to appeal: (a) any punishment in excess of the statutory 

maximum; or (b) any sentence to the extent it exceeds the maximum of the 

sentencing imprisonment range determined under the advisory Sentencing 

Guidelines in accordance with the sentencing stipulations and computations in 

this agreement, using the Criminal History Category found applicable by the 

Court. 

 In paragraph 14 of the agreement, the parties stipulated that Griffin’s total offense level 

was ten “before Acceptance of Responsibility.” The government agreed to recommend a twolevel reduction for acceptance of responsibility so long as “Defendant’s conduct continues to 

reflect Defendant’s acceptance of responsibility[,]” but “Defendant understands it will be up to 

the Court at the time of sentencing to determine whether a reduction for acceptance of 

responsibility is appropriate.” There was no agreement regarding Griffin’s applicable Criminal 

History Category. 
No. 16-4127 United States v. Griffin Page 3

 At his plea hearing, Griffin affirmed he understood he was waiving most of his rights to 

appeal. He also acknowledged the factual basis for his guilty plea. At the hearing, the 

government summarized Griffin’s involvement in the scheme as having deposited three refund 

checks into his bank account and withdrawing $9,000 once the deposits cleared. The 

government further stated the taxpayer information for preparing the fraudulent returns came 

from an accountant in Georgia. Griffin agreed this information was “all true,” and the district 

court accepted his guilty plea. 

 Following entry of Griffin’s guilty plea, a probation officer prepared a presentence 

investigation report (“PSR”) that set his adjusted offense level at ten, and his criminal history as 

category I.1 The PSR contained Griffin’s statement as to acceptance of responsibility, admitting 

he cashed fraudulent checks and “also gave other people’s personal information to another to 

make the checks.” Assuming a two-level adjustment for acceptance of responsibility, the officer 

calculated the total offense level at eight, resulting in a Guidelines range of zero to six months. 

At sentencing, the district court denied an adjustment for acceptance of responsibility and 

increased the base offense level by two for obstruction of justice. As a result, the sentencing 

range was ten to sixteen months. The district court sentenced Griffin to twelve months in prison. 

 Griffin appealed. We remanded for resentencing because the district court did not make 

sufficient factual findings to support its obstruction of justice and acceptance of responsibility 

determinations. At resentencing, Special Agent Joseph Ziegler testified that, during a 2012 

investigative interview, Griffin limited his role in the scheme to cashing checks and denied ever 

sending personal information to anyone. During Griffin’s 2015 proffer interview in anticipation 

of his plea agreement, he again characterized his role as that of a check casher and said he did 

not think he had done anything wrong. Although the factual basis for his plea stated that Griffin 

had received personal information from an individual named William Walton, Ziegler testified 

that Griffin told Ziegler he had some of Walton’s personal information from completing a 

résumé on Walton’s behalf, not to defraud the government. 

 1

Griffin was originally sentenced on January 13, 2016. He was resentenced on September 29, 2016. The 

2015 version of the Guidelines Manual applied at both proceedings. See U.S.S.G. § 1B1.11(a); see also 18 U.S.C. 

§ 3742(g)(1) (instructing district courts to apply, upon remand for resentencing, the Guidelines in effect on the date 

of the original sentencing). 
No. 16-4127 United States v. Griffin Page 4

 Ziegler also detailed how the investigation continued after Griffin’s plea until the 

accountant identified Griffin as the source of the taxpayer information. The government 

explained that, in minimizing his role in the scheme, Griffin was able to obtain a more favorable 

plea agreement while it had to prolong the investigation. Although Griffin’s attorney admitted 

his client provided the personal information used to create the fraudulent tax returns, Griffin 

denied in his allocution any involvement in gathering or transmitting taxpayer information other 

than Walton’s. 

 In light of this testimony, the district court found that Griffin had obstructed justice under 

Sentencing Guideline § 3C1.1 by providing materially false information to the judge, and 

materially false statements to law enforcement officers that significantly impeded the 

investigation and prosecution of his case. Specifically, the district court found Griffin 

misrepresented to it that the personal information used to prepare the fraudulent tax returns had 

been supplied by an accountant, when, in fact, Griffin provided the information to the 

accountant. Moreover, Griffin misrepresented to Special Agent Ziegler that he only cashed 

checks and had never sent anyone’s personal information to another. 

 The district court then denied Griffin a reduction for acceptance of responsibility under 

Sentencing Guideline § 3E1.1 because he “falsely den[ied] relevant conduct for which he’s 

accountable.” In addition, the district court observed that obstructing justice is a typical 

“disqualifier for acceptance of responsibility” per Application Note 4 to § 3E1.1. Moreover, 

Griffin’s own statements during resentencing provided “more evidence for the denial of 

acceptance of responsibility.” 

 The district court calculated Griffin’s Guideline range to be ten to sixteen months. This 

time, the district court sentenced Griffin to ten months in prison. Griffin timely appeals from this 

sentence. He again challenges the district court’s imposition of the obstruction-of-justice 

enhancement and its denial of a reduction for acceptance of responsibility. 

II. 

 The government argues Griffin’s appellate waiver bars this appeal. “It is well settled that 

a defendant in a criminal case may waive any right, even a constitutional right, by means of a 
No. 16-4127 United States v. Griffin Page 5

plea agreement.” United States v. Fleming, 239 F.3d 761, 763–64 (6th Cir. 2001) (internal 

quotation marks and citation omitted). A knowing and voluntary waiver of the right to appeal 

precludes appellate review. Id. at 764. 

 Griffin does not contest the validity of his appeal wavier. Instead, he argues it does not 

bar this appeal. We thus “look to see if the claim[s] raised on appeal fall[] within the scope of 

the appellate waiver[.]” United States v. Toth, 668 F.3d 374, 378 (6th Cir. 2012). We review 

that question de novo. Id. 

 Griffin’s appeal is foreclosed. The waiver allows appeals from the district court’s 

sentencing determination in very limited circumstances. Relevant here, Griffin can appeal a 

sentence that “exceeds the maximum of the sentencing imprisonment range determined under the 

advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations 

in th[e] agreement.” The parties stipulated to a total offense level of ten. Although the parties 

did not stipulate to a Criminal History Category, neither party disputes the district court’s 

calculation of category I. An offense level of ten and Criminal History Category I yield a 

Guideline range of six to twelve months. See U.S.S.G. § 5A (sentencing table). Although the 

district court used an offense level of twelve at resentencing, Griffin’s ten-month sentence did 

not exceed “the maximum of the sentencing imprisonment range . . . in accordance with the 

sentencing stipulations and computations in th[e] agreement.” See United States v. Moorer,

667 F. App’x 540, 541 (6th Cir. 2016) (per curiam) (right to appeal waived even though the 

district court used an offense level higher than the offense level the parties agreed to in the plea 

agreement). Accordingly, the waiver applies. 

 Griffin argues the appropriate sentencing range is zero to six months, thus his ten-month 

sentence exceeds it. According to Griffin, because the government agreed to recommend a twolevel reduction for acceptance of responsibility, the agreed-upon offense level is not ten but eight 

per “the sentencing stipulations in his plea agreement.” 

 We rejected this argument in United States v. English, 520 F. App’x 428, 432–33 (6th 

Cir. 2013), a case involving a nearly-identical appellate waiver. See id. at 430. There, as here, 

the parties stipulated to a total offense level “before Acceptance of Responsibility.” Id. at 433. 
No. 16-4127 United States v. Griffin Page 6

And there, as here, the subsequent paragraph made clear the parties had not also “stipulated” that 

such a reduction was appropriate: although the government believed at the time of the plea that 

the defendant had accepted responsibility, the defendant acknowledged “it w[ould] be up to the 

Court at the time of sentencing to determine whether a reduction for acceptance of responsibility 

is appropriate.” Id. Given this acknowledgment, we could not conclude in English, and cannot 

conclude here, that “the plea agreement manifested ‘sentencing stipulations and computations’ 

that envisioned a level-[8] sentencing range for” Griffin. See id.; cf. Moorer, 667 F. App’x at 

541 (waiver bars appeal where sentence did not exceed “the maximum of the sentencing 

imprisonment range . . . in accordance with the sentencing stipulations and computations” in the 

parties’ plea agreement). 

 Defendant “fails to realize . . . that the maximum of the sentencing range that must be 

exceeded before [he] may appeal his sentence is not the sentencing range associated with the 

sentence computation that [he] believes is appropriate.” English, 520 F. App’x at 432. Because 

Griffin’s ten-month sentence did not exceed the maximum of the sentencing range as determined 

“in accordance with the sentencing stipulations and computations” in his plea agreement, his 

claims, since they relate directly to his sentence, have been knowingly and voluntarily waived. 

III. 

 For these reasons, we dismiss Griffin’s appeal.