United States v. Gregory Griswold , 591 F. App'x 111 ( 2014 )


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  •                                                                    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 14-1185
    _____________
    UNITED STATES OF AMERICA
    v.
    GREGORY GRISWOLD,
    Appellant
    __________________________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Criminal Action No. 2-09-cr-00568-001)
    District Judge: Honorable Paul S. Diamond
    __________________________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    October 2, 2014
    Before: AMBRO, CHAGARES, and VANASKIE, Circuit Judges
    (Filed: November 4, 2014)
    _____________
    OPINION*
    _____________
    *
    This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
    not constitute binding precedent.
    VANASKIE, Circuit Judge.
    Appellant Gregory Griswold was convicted after trial of one count of possession
    of a firearm by a convicted felon under 
    18 U.S.C. § 922
    (g), and sentenced by the District
    Court to a term of 120 months’ incarceration. We vacated that conviction after
    concluding that Griswold was wrongly denied the opportunity to represent himself at
    trial. See United States v. Griswold, 525 F. App’x 111 (3d Cir. 2013). On remand,
    Griswold entered a plea of guilty to the same charge and was sentenced to a reduced term
    of 108 months. Griswold now contends that this sentence was impermissibly vindictive.
    For the reasons that follow, we will affirm the judgment of the District Court.
    I.
    We write primarily for the parties, who are familiar with the facts and procedural
    history of this case. Accordingly, we set forth only those facts necessary to our analysis.
    Throughout the 1980s and 1990s, Griswold was convicted in both state and federal
    court of several firearms-related offenses, including third-degree murder, possession of a
    firearm by a convicted felon, and making false statements in connection with the
    acquisition of firearms. He was released from prison in 2006 and began a term of
    supervised release at that time. In 2008, the United States Probation Office received
    anonymous tips stating that Griswold again was concealing a firearm in his apartment. A
    search of Griswold’s apartment resulted in the seizure of a loaded pistol and additional
    ammunition.
    2
    In August 2009, a grand jury returned an indictment charging Griswold with one
    count of possession of a firearm by a convicted felon, in violation of 
    18 U.S.C. § 922
    (g).
    Evidence emerged that Griswold, while incarcerated pending trial, tried to coerce his wife
    into telling police that the gun belonged to her. He also contacted another witness and
    tried to threaten her into testifying that she had planted the gun in his apartment. The
    case proceeded to trial in 2011, after which the jury found Griswold guilty of the charged
    offense.
    At a sentencing hearing in May 2012, the District Court concluded that Griswold’s
    base offense level of 20 was subject to a 2-level adjustment for obstruction of justice
    under U.S.S.G. § 3C1.1. Griswold’s criminal history category was VI, resulting in an
    advisory Guidelines range of 84 to 105 months. Nonetheless, citing Griswold’s
    “horrible” criminal record, the high risk of recidivism, and the need to protect the public,
    the Court determined that an upward variance of 15 months was appropriate. (Supp.
    App. 13.) As a result, the District Court sentenced Griswold to 120 months’
    imprisonment and 3 years of supervised release.
    On direct appeal, we vacated Griswold’s conviction and sentence on the grounds
    that the District Court should have granted Griswold’s request to proceed pro se at trial.
    In October 2013, on remand, Griswold opted not to proceed to trial a second time and
    instead pleaded guilty to the violation of § 922(g), without a plea agreement.
    On January 21, 2014, the District Court held a second sentencing hearing. The
    parties agreed that, unlike at his first sentencing, Griswold’s guilty plea entitled him to a
    3
    3-level reduction in offense level for acceptance of responsibility, resulting in a new
    advisory Guidelines range of 63 to 78 months. The Government nonetheless maintained
    that Griswold should receive the same sentence of 120 months.
    The District Court again entertained extensive argument from Griswold’s counsel
    regarding the appropriateness of the 2-level adjustment for obstruction of justice, the
    possibility of a downward departure under U.S.S.G. § 5H1.6 based on extraordinary
    family responsibilities, and the availability of a downward variance or departure to reflect
    post-sentencing rehabilitation. The Court acknowledged Griswold’s family situation,
    work history, and satisfactory behavioral record while incarcerated, but again placed
    great emphasis on the severity of his criminal history. The Court also noted Griswold’s
    “extremely serious” efforts to intimidate witnesses in connection with his case, and cited
    Griswold’s ongoing failure to accept responsibility for those actions. (Supp. App. 48,
    50.) At the conclusion of the hearing, the Court sentenced Griswold to 108 months’
    imprisonment and 3 years of supervised release. Griswold filed a timely appeal.
    II.
    The District Court had jurisdiction over this case under 
    18 U.S.C. §§ 3231
     and
    3583(e). We have jurisdiction pursuant to 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    (a).
    III.
    Griswold’s sole argument on appeal relies upon North Carolina v. Pearce, 
    395 U.S. 711
     (1969), in which the Supreme Court recognized that constitutional due-process
    concerns are implicated where a defendant’s initial conviction or sentence is vacated on
    4
    appeal and the same trial court imposes a greater sentence on remand. We have read
    Pearce and its progeny, Alabama v. Smith, 
    490 U.S. 794
     (1989), to dictate “a
    prophylactic rule requiring the trial court to show affirmatively on the record non-
    retaliatory reasons for increasing a sentence after a successful appeal of the original
    sentence.” Kelly v. Neubert, 
    898 F.2d 15
    , 16 (3d Cir. 1990).
    Griswold acknowledges that his new sentence here is lower than his original
    sentence, but argues that the Pearce rule is nonetheless triggered by the fact that the
    second sentence involved a greater upward variance from the advisory Guidelines range
    (30 months) than did the first sentence (15 months).1 This argument is foreclosed by our
    binding precedent in Kelly, in which we concluded that the Pearce presumption “should
    not be mechanically applied” where the defendant’s “aggregate sentence is reduced on
    remand following a successful appeal.” 
    898 F.2d at 18
    ; see also United States v. Murray,
    
    144 F.3d 270
    , 275 (3d Cir. 1998) (rejecting Pearce claim where the defendant’s new
    sentence “d[id] not exceed the total length of his original sentence, and [there was] no
    evidence of vindictiveness on the part of the sentencing court”). Nor are we an outlier in
    this respect. See, e.g., United States v. Rodgers, 
    278 F.3d 599
    , 604 (6th Cir. 2002)
    (“[W]here the defendant ultimately receives a lower sentence at resentencing, the Pearce
    1
    We exercise plenary review over preserved claims of vindictive sentencing. See
    Kelly, 
    898 F.2d at 16
     (citations omitted). The Government argues that under our recent
    en banc decision in United States v. Flores-Mejia, 
    759 F.3d 253
     (3d Cir. 2014), we
    should review the claim only for plain error because Griswold did not raise it at the time
    of sentencing. Because we conclude that Griswold’s claim fails under either standard, we
    will not address the Government’s contention.
    5
    presumption of vindictiveness never arises.”) (citations omitted); United States v. Flinn,
    
    18 F.3d 826
    , 830 (10th Cir. 1994) (“In the absence of evidence of actual vindictiveness,
    resentencing will not be considered vindictive if the defendant did not receive a net
    increase in his sentence.”); United States v. Bay, 
    820 F.2d 1511
    , 1513 (9th Cir. 1987)
    (holding Pearce inapplicable in the absence of a “net increase” in sentence).
    Griswold is thus not entitled to a presumption of vindictiveness. Moreover, the
    record bears no evidence of vindictiveness on the part of the District Court whatsoever.
    As a result, we will review Griswold’s sentence only for procedural and substantive
    reasonableness. The party challenging the sentence bears the burden of demonstrating
    unreasonableness. United States v. Tomko, 
    562 F.3d 558
    , 567 (3d Cir. 2009) (en banc).
    First, we examine the record for significant procedural errors, “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.” Gall v. United
    States, 
    552 U.S. 38
    , 51 (2007). Here, the District Court properly calculated the advisory
    Guidelines range, gave thorough consideration to the appropriate § 3553(a) factors, and
    adequately explained the reasoning for its upward variance. We see no basis for relief on
    procedural grounds.
    Where no procedural errors exist, we consider the substantive reasonableness of
    the sentence. Gall, 
    552 U.S. at 51
    . The District Court “must demonstrate that it
    reasonably applied [the § 3533(a)] factors to the circumstances of the case.” United
    6
    States v. Bungar, 
    478 F.3d 540
    , 543 (3d Cir. 2007). Our review is “highly deferential.”
    
    Id.
     “[U]nless no reasonable sentencing court would have imposed the same sentence,”
    we affirm. Tomko, 
    562 F.3d at 568
    .
    We need not fully reiterate the ample facts supporting the District Court’s upward
    variance here. Griswold has returned to the commission of firearms-related offenses time
    and again, including repeated instances of prohibited possession of firearms while on
    supervised release. He encouraged witnesses to lie on his behalf in connection with this
    case and threatened a woman with violence when she refused. Even taking into account
    the various mitigating circumstances described by Griswold’s counsel, the District Court
    was entitled to conclude that an above-Guidelines sentence was appropriate under the
    circumstances.
    IV.
    For the foregoing reasons, we conclude that the District Court’s sentence was
    procedurally and substantively reasonable. We will affirm the judgment of the District
    Court.
    7