United States v. Joseph Griffiths

U
                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 21a0134n.06

                                           No. 19-4276

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  Mar 15, 2021
 UNITED STATES OF AMERICA,                               )                    DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellee,                              )
                                                         )      ON APPEAL FROM THE
                v.                                       )      UNITED STATES DISTRICT
                                                         )      COURT     FOR      THE
 JOSEPH B. GRIFFITHS,                                    )      NORTHERN DISTRICT OF
                                                         )      OHIO
        Defendant-Appellant.                             )
                                                         )



BEFORE: McKEAGUE, GRIFFIN and NALBANDIAN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       After defendant Joseph B. Griffiths pleaded guilty to robbing a bank, the district court

imposed a below-Guidelines sentence of 144 months of imprisonment. Griffiths challenges the

substantive reasonableness of his sentence and contends that his sentence violates the Eighth

Amendment’s prohibition of cruel and unusual punishments. Because Griffiths’s sentence is

substantively reasonable and does not contravene the Eighth Amendment, we affirm the district

court’s judgment.



       On April 11, 2019, Griffiths entered a bank, waited around for a few moments, and then

approached a teller. He gave the teller a note, which said, “Robbery. I need $400 to pay a ransom.”

The bank employee—seemingly not understanding the note—asked Griffiths if he wanted to make

a withdrawal, but he did not answer. The teller asked a co-worker if he understood the note. The
No. 19-4276, United States v. Griffiths


second teller asked Griffiths if he had an account at the bank or if he had some form of

identification. After defendant did not respond to those questions, the second teller asked

defendant if he was robbing the bank. Griffiths nodded in agreement, but then fled the bank with

no money. Soon thereafter, law enforcement officials apprehended defendant in the parking lot of

a different bank.

       A grand jury indicted Griffiths for attempting to rob a bank, in violation of 18 U.S.C.

§ 2113(a) and (f). Griffiths pleaded guilty without a plea agreement. The probation officer filed

a presentence investigation report (“PSR”). The PSR calculated defendant’s total base offense

level to be 29 and his criminal history category to be VI, which yielded a Guidelines imprisonment

range of 151 months to 188 months. Griffiths did not object to the PSR or the Guidelines

imprisonment range.1

       The district court held a sentencing hearing and heard arguments from both parties.

Agreeing with the PSR, the district court calculated defendant’s Guidelines range to be 151 months

to 188 months. After considering the 18 U.S.C. § 3553(a) factors and acknowledging the “push

and pull” among them, the district court imposed a 144-month sentence, which was below the

Guidelines range. Defendant “object[ed] to the sentencing in general.” Griffiths timely appealed.




       1
         Griffiths, however, did file two sentencing memoranda after the probation officer filed
both the presentence investigation report and an addendum to it; the addendum indicated that
neither the Government nor defendant had filed objections to the PSR. In his first sentencing
memorandum, defendant asked the district court to “impose a minimum term of imprisonment
pursuant to the proper sentencing guideline range.” Additionally, Griffiths asked the district court
to “consider a downward variance” given “the circumstances of the case and his mental health
issues.” Griffiths attached an expert report to his second sentencing memorandum. The report—
prepared by a clinical and forensic psychologist—elaborated on defendant’s mental illness.

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No. 19-4276, United States v. Griffiths




       We review the substantive reasonableness of Griffiths’s sentence under a deferential abuse-

of-discretion standard.2 United States v. Richards, 

659 F.3d 527

, 549 (6th Cir. 2011). Usually, to

obtain relief on a substantive reasonableness challenge, a defendant must show that the sentence

was “selected arbitrarily,” “based on impermissible factors,” “fails to consider a relevant

sentencing factor,” or “gives an unreasonable amount of weight to any pertinent factor.” United

States v. Massey, 

663 F.3d 852

, 857 (6th Cir. 2011) (citation omitted). Additionally, when “a

district court explicitly or implicitly considers and weighs all pertinent factors, a defendant clearly

bears a much greater burden in arguing that the court has given an unreasonable amount of weight

to any particular one.” United States v. Adkins, 

729 F.3d 559

, 571 (6th Cir. 2013) (citation

omitted). Finally, a within-Guidelines sentence is presumed reasonable. United States v. Vonner,

516 F.3d 382

, 389 (6th Cir. 2008) (en banc). So when a defendant attacks a below-Guidelines

sentence as substantively unreasonable (as Griffiths does here), the sentence is presumed

reasonable and a “defendant’s task of persuading us that the more lenient sentence [that he

received] is unreasonably long is even more demanding.” United States v. Curry, 

536 F.3d 571

,

573 (6th Cir. 2008).

       Typically, we review a constitutional challenge—such as Griffiths’s Eighth Amendment

challenge—to a defendant’s sentence de novo. United States v. Young, 

847 F.3d 328

, 362 (6th

Cir. 2017). But when a defendant fails to preserve a constitutional attack on his sentence, as is the

case here, we review the unpreserved constitutional attack for plain error.3

Id. To survive plain


       2
           Griffiths does not challenge the procedural reasonableness of his sentence.
       3
        Griffiths does not contend that he preserved his Eighth Amendment challenge to his
sentence.

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No. 19-4276, United States v. Griffiths


error review, “a defendant must show that: (1) an error occurred in the district court; (2) the error

was obvious or clear; (3) the error affected defendant’s substantial rights; and (4) this adverse

impact seriously affected the fairness, integrity, or public reputation of the judicial proceedings.”

United States v. Dubrule, 

822 F.3d 866

, 882 (6th Cir. 2016) (citation omitted).



       Griffiths asserts that his sentence was substantively unreasonable because the district court

improperly weighed two pertinent factors. According to defendant, the district court unreasonably

gave too little weight to (1) the trivial nature of his offense conduct and (2) his severe mental

illness. His arguments reduce to asking us to “balance the factors di[f]ferently than the district

court did.” 

Adkins, 729 F.3d at 571

(alteration in original and citation omitted). However, we lack

the authority to grant such a request because “the manner in which a district court chooses to

balance the applicable sentencing factors is beyond the scope of [our] review.”

Id. Moreover, the district

court—multiple times—explicitly discussed the severity of Griffiths’s mental illness and

explained that the illness, along with other relevant factors (including defendant’s extensive

criminal history), was a part of the “push and pull” regarding whether Griffiths’s sentence should

be below, within, or above the Guidelines range. The district court ultimately imposed a sentence

seven months below the Guidelines range, partially because of defendant’s mental health issues.

Nothing defendant identified in the record indicates that the district court gave “an unreasonable

amount of weight to any pertinent factor.”         

Massey, 663 F.3d at 857

(citation omitted).

Accordingly, Griffiths has not rebutted the presumptive reasonableness of his below-Guidelines

sentence and his substantive unreasonableness arguments fail.




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No. 19-4276, United States v. Griffiths




                                                A.

       The Eighth Amendment prohibits “cruel and unusual punishments [from being] inflicted.”

U.S. Const. amend. VIII. The Amendment “does not require strict proportionality between the

crime and sentence.” United States v. Marshall, 

736 F.3d 492

, 504 (6th Cir. 2013). Rather, “[w]e

apply a ‘narrow proportionality principle’ in considering [cruel and unusual punishment] claims,

and will find unconstitutional only ‘extreme sentences that are “grossly disproportionate” to the

crime.’” United States v. Sherrill, 

972 F.3d 752

, 772 (6th Cir. 2020) (quoting 

Young, 847 F.3d at 363

). Three factors guide our analysis of whether a sentence was so grossly disproportionate that

it contravened the Eighth Amendment: “(1) ‘the gravity of the offense and the harshness of the

penalty’; (2) ‘the sentences imposed on other criminals in the same jurisdiction’; and (3) ‘the

sentences imposed for commission of the same crime in other jurisdictions.’”

Id. (quoting United States

v. Abdulmutallab, 

739 F.3d 891

, 906 (6th Cir. 2014)). Typically, “our consideration turns

on the first factor, as we reach the second and third ‘only in the rare case in which a threshold

comparison of the crime committed and the sentence imposed leads to an inference of gross

disproportionality.’”

Id. (quoting Abdulmutallab, 739

F.3d at 906).

                                                B.

                                                 1.

       Defendant has the burden to demonstrate that the district court plainly erred regarding his

unpreserved Eighth Amendment claim. United States v. Graham, 

622 F.3d 445

, 455 (6th Cir.

2010). Griffiths, however, does not even mention the plain error standard of review in his briefing,

let alone try to engage with its requirements. At most, defendant offers arguments regarding the

first requirement—the presence of an error. But Griffiths offers nothing concerning plain error

review’s other three requirements. Because defendant has the burden to demonstrate that the
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No. 19-4276, United States v. Griffiths


district court plainly erred but offered no argumentation regarding three of the four requirements

for surviving plain error review, we conclude that his Eighth Amendment claim fails as abandoned.

See United States v. Watson, 716 F. App’x 499, 502 (6th Cir. 2017) (concluding that a claim did

not survive plain error review because the defendant only offered a perfunctory argument); Vander

Boegh v. EnergySolutions, Inc., 

772 F.3d 1056

, 1063 (6th Cir. 2014) (concluding that a litigant

abandoned an argument because the litigant failed to fully develop it).

                                                 2.

       Even if Griffiths had not abandoned his Eighth Amendment claim, it would not have

survived plain error review because both of his theories fail to show that the district court erred.

First, he argues that although the core of the Eighth Amendment is that “‘punishment for crime

should be graduated and proportioned’ to both the offender and the offense,” Miller v. Alabama,

567 U.S. 460

, 469 (2012) (citation omitted), “there is nothing ‘proportional’ about a 12-year

sentence for this particular crime, meted out to this particular defendant.” Defendant, however, is

attempting to answer the wrong question. The relevant question is not whether the sentence was

disproportionate to the crime; rather, the relevant question is whether the sentence is “extreme”

and “‘grossly disproportionate’ to the crime.” 

Marshall, 736 F.3d at 504

–05 (emphases added)

(quoting Lockyer v. Andrade, 

538 U.S. 63

, 72 (2003)). As the district court pointed out, according

to the then-available Sentencing Commission data, the average national sentence for defendants in

Griffiths’s level VI criminal history category (which is the highest category) who committed

Griffiths’s crime (robbery) was 143 months. We would be hard pressed to characterize Griffiths’s

144-month sentence—which was only one month above the national average and seven months

below his Guidelines range—as “extreme” and “grossly disproportionate.”

Id. (quoting Lockyer, 538

U.S. at 72).


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No. 19-4276, United States v. Griffiths


       Griffiths also argues that the severity of his mental illness reduces his culpability such that

his 12-year sentence violates the Eighth Amendment. To support this argument, defendant

references Supreme Court cases that limit punishments that governments can impose on minors

because juveniles are less culpable due to their less developed brains.4 This argument fails for

multiple reasons. As an initial matter, we “grant[] ‘substantial deference’ to the legislatures who

determine the types and limits of punishments.” United States v. Moore, 

643 F.3d 451

, 456 (6th

Cir. 2011) (quoting Harmelin v. Michigan, 

501 U.S. 957

, 999 (1991) (Kennedy, J., concurring)).

Moreover, “[a] sentence within the statutory maximum set by statute generally does not constitute

‘cruel and unusual punishment.’”

Id. at 455

(alteration in original) (citation omitted). Here, the

statutory maximum is 20 years, 18 U.S.C. § 2113(a), and Griffiths was only sentenced to 12 years.

Next, “we have rejected the notion that even a defendant’s reduced culpability as a result of a

mental disability automatically ‘transforms an otherwise constitutional sentence into an

unconstitutional one.’” 

Sherrill, 972 F.3d at 774

(citation omitted). And we have even rejected

defendant’s specific version of the argument—reduced culpability due to mental illness.

Id. Like the defendant

in Sherrill, Griffiths “does not argue that he had a mental disability that affected his

understanding of his conduct, and he offers no support for the notion that his sentence is

unconstitutional simply because he had a history of mental health issues.”5

Id. Accordingly, defendant’s argument

that his mental illness rendered him insufficiently culpable fails.



       4
      The Supreme Court cases Griffiths references are Roper v. Simmons, 

543 U.S. 551

(2005);
Graham v. Florida, 

560 U.S. 48

, 68 (2010); and Miller v. Alabama, 

567 U.S. 460

(2012).
       5
         According to the clinical and forensic psychologist who evaluated defendant, “Griffiths
understood the serious nature of the charges to which he [pleaded] guilty.” Moreover, the
psychologist concluded that the “[p]sychological testing conducted for the purpose of [the]
evaluation did not indicate the presence of a developmental handicap,” although Griffiths’s
“intellectual abilities . . . appear[ed] to fall within the low average range.”

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No. 19-4276, United States v. Griffiths


       Griffiths offers one more Eighth Amendment argument. He contends that his sentence is

cruel and unusual because imprisoning him for 12 years would cause his mental illness to worsen.

Defendant concedes that this is not a disproportionality argument. He makes no attempt, however,

to connect his theory to the Eighth Amendment’s text, its history, or its existing jurisprudence.

Because Griffiths offers no explanation for why we should expand our existing jurisprudence to

accommodate this new proffered basis for obtaining sentence relief under the Eighth Amendment,

his argument fails. See James v. Meow Media, Inc., 

300 F.3d 683

, 698 (6th Cir. 2002) (declining

to extend our obscenity jurisprudence where the litigant’s “arguments [were] not conceptually

linked to our obscenity jurisprudence”).



       For the forgoing reasons, we affirm the district court’s judgment.




                                               -8-

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