United States v. Joseph Griffin-Cooke , 593 F. App'x 592 ( 2015 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 14-2134
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Joseph Griffin-Cooke
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Northern District of Iowa - Cedar Rapids
    ____________
    Submitted: February 9, 2015
    Filed: February 13, 2015
    [Unpublished]
    ____________
    Before BYE, BRIGHT, and BENTON, Circuit Judges.
    ____________
    PER CURIAM.
    Joseph Griffin-Cooke pled guilty to being a felon in possession of a firearm
    and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals
    his 120-month sentence—the statutory maximum—arguing that the district court1
    erred in departing upward and imposing an unreasonable sentence. Having
    jurisdiction under 28 U.S.C. § 1291, this court affirms.
    Griffin-Cooke does not dispute a total offense level of 23 and a criminal history
    category of VI, producing a Guidelines range of 92 to 115 months. The district court
    granted the government’s motion for an upward departure under U.S. Sentencing
    Guidelines Manual § 4A1.3(a)(1), ruling that criminal history category VI
    substantially under-represented the seriousness of Griffin-Cooke’s criminal history
    and his likelihood of committing other crimes. The district court explicitly said that
    it would vary upward to the same sentence, if an upward departure were held
    erroneous on appeal.
    Griffin-Cooke argues that, considering the sentence as a variance, the district
    court committed procedural errors by not adequately explaining its sentence and
    failing to consider the factors in 18 U.S.C. § 3553(a). See Gall v. United States, 
    552 U.S. 38
    , 51 (2007). To the contrary, the court explained its sentence at length (as
    summarized below). The court also stated that it considered each and every § 3553(a)
    factor, quoted each of them, and discussed several in detail. A district court need not
    “mechanically recite” the § 3553(a) factors, or make “robotic incantations” about
    each statutory factor. United States v. Blackmon, 
    662 F.3d 981
    , 988 (8th Cir. 2011).
    Attacking the reasonableness of his sentence, Griffin-Cooke primarily relies
    on cases predating the Supreme Court’s decision in 
    Gall, 552 U.S. at 41
    , and this
    court’s decision in United States v. Feemster, 
    572 F.3d 455
    , 461 (8th Cir. 2009) (en
    banc). The standard of review for substantive reasonableness is a “deferential abuse-
    of-discretion” standard. 
    Gall, 552 U.S. at 41
    . A district court “abuses its discretion
    1
    The Honorable Linda R. Reade, Chief Judge of the United States District
    Court for the Northern District of Iowa.
    -2-
    when it (1) fails to consider a relevant factor that should have received significant
    weight; (2) gives significant weight to an improper or irrelevant factor; or (3)
    considers only the appropriate factors but in weighing those factors commits a clear
    error of judgment.” 
    Feemster, 572 F.3d at 461
    . This court will reverse a district
    court’s sentence as substantively unreasonable—“‘whether within, above, or below
    the applicable Guidelines range’”—only in the “‘unusual case.’” 
    Id. at 464
    (quoting
    United States v. Gardellini, 
    545 F.3d 1089
    , 1090 (D.C. Cir. 2008)).
    The district court expressly considered the § 3553(a) factors. In terms of the
    nature and circumstances of the offense, the court noted that while carrying a loaded
    stolen pistol next to eight baggies of marijuana, Griffin-Cooke fought with the
    arresting officers, injuring one of them—part of a lifelong pattern.2 The district court
    found that Griffin-Cooke’s history and characteristics showed a likelihood of violent
    future crimes. The court noted his history of being noncompliant under correctional
    supervision, the number of unscored criminal convictions, and his multiple assault
    convictions (primarily against women). See United States v. Jones, 
    612 F.3d 1040
    ,
    1045-46 (8th Cir. 2010) (upward variance may be based on “criminal history not
    accounted for in [defendant’s] criminal history category” and need “to protect the
    public”). The court acknowledged Griffin-Cooke’s arguments that 10 of his 14
    criminal history points were for driving offenses and that some of his convictions
    were for minor offenses, such as multiple trespasses. But the district court concluded
    that these offenses showed repeat criminal activity and “a person who has no respect
    for the law and thinks that he can do whatever he wants to do.” It was within the
    2
    In his supplemental reply brief, Griffin-Cooke objects, for the first time, to
    three alleged overstatements in the district court’s lengthy sentencing comments.
    Issues not raised in a party’s opening brief are waived. United States v. Rice, 
    699 F.3d 1043
    , 1050 (8th Cir. 2012). Moreover, any overstatements were not material to
    the sentence imposed. See United States v. Woods, 
    670 F.3d 883
    , 887 (8th Cir. 2012)
    (finding sentencing error harmless when sentencing court would have imposed same
    sentence regardless of the error).
    -3-
    district court’s “wide discretion” and “substantial latitude” to determine the weight
    of each factor in sentencing Griffin-Cooke. See United States v. Salazar-Aleman, 
    741 F.3d 878
    , 881 (8th Cir. 2013). The district court did not abuse its discretion in
    sentencing Griffin-Cooke five months above the Guidelines range.
    This court, finding the variance not substantively unreasonable, need not
    address Griffin-Cooke’s objections to the upward departure. See, e.g., United States
    v. Grandon, 
    714 F.3d 1093
    , 1098 (8th Cir. 2013) (holding harmless any error in
    departing upward, under U.S.S.G. § 4A1.3, where district court alternatively imposed
    reasonable sentence as an upward variance); United States v. Timberlake, 
    679 F.3d 1008
    , 1011-12 (8th Cir. 2012) (same).
    *******
    The judgment is affirmed.
    ______________________________
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