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

U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

N IKITA G RIFFIN , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ 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, a nd GRIFFIN, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Kevin M. Cafferkey, Clev eland, Ohio, for Appellant. Paul M. Flannery, UNITED STATES ATTORNEY’S OFFICE, Cl eveland, Ohio, for Appellee.

_________________ OPINION

_________________ GRIFFIN, Circuit Judge. Defendant Nikita Gr iffin 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 rese ntencing because the district court made insufficient factual findings to support its imposition of a two-leve l 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 appeal s 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 fra udulent proceeds. The indictment described a scheme in which a co-defenda nt prepared fraudulent tax retu rns that generated “refund anticipation” loan checks from a bank, which Griffin cashed. Pursuant to a written plea agreement, Griffin understood the maximum pena lty 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 woul d determine the advisory Guid eline 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 advise d 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 pos t-conviction proceeding, including a proceeding under 28 U.S. C. § 2255. Defenda nt 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 determ ined under the advisory Sentencing Guidelines in accordance with the senten cing 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 Griffi n’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 dete rmine whether a reduction for acceptance of responsibility is appropriate.” There was no agr eement regarding Griffin’s applicable Criminal History Category.No. 16-4127 United States v. Griffin Page 3

At his plea hearing, Griffin af firmed he understood he was waiving most of his rights to appeal. He also acknowledged the factual basi s 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 th e deposits cleared. The government further stated the taxpayer informa tion 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 adjustme nt for acceptance of responsibility, the officer calculated the total offense level at eight, resulti ng in a Guidelines range of zero to six months. At sentencing, the district cour t denied an adjustment for ac ceptance of responsibility and increased the base offense level by two for obstruc tion of justice. As a result, the sentencing range was ten to sixteen months. The district court sentenced Griffi n to twelve months in prison.
Griffin appealed. We remanded for resentenci ng because the district court did not make sufficient factual findings to support its obstructi on of justice and acceptance of responsibility determinations. At resentencing, Special Ag ent 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 an yone. During Griffin’s 2015 pro ffer interview in anticipation of his plea agreement, he again characterized his ro le as that of a check casher and said he did not think he had done anything wrong. Although the factual basis for his pl ea stated that Griffin had received personal information from an in dividual named William Walton, Ziegler testified that Griffin told Ziegler he had some of Wa lton’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 Ma nual applied at bot h 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 investiga tion 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 inve stigation. 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 gath ering or transmitting taxpayer information other than Walton’s.
In light of this testimony, th e district court found that Gri ffin had obstructed justice under Sentencing Guideline § 3C1.1 by providing materially false in formation to the judge, and materially false statements to law enforcem ent officers that significantly impeded the investigation and prosecution of his case. Specifically, the district court found Griffin misrepresented to it that the personal informati on used to prepare the fr audulent tax returns had been supplied by an accountant, when, in fact , Griffin provided the information to the accountant. Moreover, Griffin mi srepresented to Special Agent Ziegler that he only cashed checks and had never sent anyone’s pe rsonal 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 obstruc ting justice is a typical “disqualifier for acceptance of re sponsibility” per Appl ication 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 m onths 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 reducti on for acceptance of responsibility.

II.
The government argues Griffin’s appellate waiver bars this appeal. “I t is well settled that a defendant in a criminal case may waive any right, even a constitutional right, by means of aNo. 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 a nd 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 clai m[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 circum stances. Relevant here , Griffin can appeal a sentence that “exceeds the maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines in accordance w ith the sentencing stipula tions and computations in th[e] agreement.” The parties stipulated to a total offense le vel of ten. Although the parties did not stipulate to a Criminal History Category, neit her party disputes th e 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 (sentenc ing table). Although the district court used an offense le vel of twelve at resentencing, Griffin’s ten-month sentence did not exceed “the maximum of th e sentencing imprisonment range . . . in accordance with the sentencing stipulations and comput ations in th[e] agreement.” See United States v. Moorer , 667 F. App’x 540, 541 (6th Cir. 2016) (per curi am) (right to appeal waived even though the district court used an offense level higher than th e offense level the parties agreed to in the plea agreement). Accordingly, the waiver applies.
Griffin argues the appropriate sentencing range is zero to six mont hs, thus his ten-month sentence exceeds it. Accordi ng to Griffin, because the governme nt agreed to recommend a twolevel reduction for acceptance of re sponsibility, the agreed-upon offens e 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 A cceptance of Responsibility.” Id. at 433.No. 16-4127 United States v. Griffin Page 6

And there, as here, the subsequent paragraph made clear the partie s had not also “s tipulated” that such a reduction was appropriate: although the government believed at the time of the plea that the defendant had accepted res ponsibility, the defendant acknowle dged “it w[ould] be up to the Court at the time of sentencing to determine wh ether a reduction for accept ance of responsibility is appropriate.” Id. Given this acknowledgment, we could not conclude in English , and cannot conclude here, that “the plea ag reement 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 se ntencing 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 ma ximum 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 sent ence, have been knowingly and voluntarily waived.

III.
For these reasons, we di smiss Griffin’s appeal.