United States v. Michael R. Griess

971 F.2d 1368, 1992 WL 188999
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 22, 1992
Docket91-1893
StatusPublished
Cited by13 cases

This text of 971 F.2d 1368 (United States v. Michael R. Griess) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael R. Griess, 971 F.2d 1368, 1992 WL 188999 (8th Cir. 1992).

Opinions

PER CURIAM.

In sentencing Michael R. Griess, the district court departed upward from the guidelines-specified sentence. Griess appeals, claiming that the departure was improper. We affirm.

I. BACKGROUND

In October 1989, Griess was charged with one count of making a false declaration while testifying before a grand jury, in violation of 18 U.S.C. § 1623(a), three counts of distributing marijuana, each in violation of 21 U.S.C. § 841, and one count of distributing cocaine, also in violation of 21 U.S.C. § 841. In March 1990, Griess was convicted on all counts.

Griess’s presentence investigation report (PSI) calculated a sentencing range of fifteen to twenty-one months in prison. This was determined as follows. Griess’s drug distribution counts were grouped as closely-related counts, with a two-point adjust[1370]*1370ment for obstruction of justice added to this sum for Griess’s conduct in perjuring himself before the grand jury. The adjusted offense level for the drug distribution counts was then combined with the adjusted offense level for the count of giving a false declaration to the grand jury, for a combined adjusted offense level of fourteen. Griess was denied an adjustment for acceptance of responsibility because he continued to maintain his innocence of distribution of cocaine. Griess’s offense level total thus remained at fourteen. Griess received a criminal history category of I. Although Griess had five juvenile offenses, the only offense factored into his criminal history score was one adult conviction in 1980 for driving while intoxicated (one point). The probation officer found no factors warranting departure.

At sentencing the district court departed from the guidelines-specified range and sentenced Griess to forty-two months in prison. Griess appealed, arguing that (1) the departure was not supported by adequate findings and (2) the district court erred in failing to provide notice of its intent to depart. In December 1990, we remanded Griess’s case to the district court for resentencing, noting that a district court must give notice of its intent to depart upward when the departure is based on facts not contained in the PSI. United States v. Griess, 923 F.2d 860 (8th Cir.1990) (unpublished per curiam). See United States v. Sands, 908 F.2d 304, 307 • (8th Cir.1990) (when court sentences defendant based on information not contained in PSI or introduced at the sentencing hearing, it must give defendant notice of and opportunity to rebut such information).

On remand, the district court provided Griess with notice of its intent to depart upward and stated that the factors on which the departure would be based were contained in the government’s sentencing memorandum of February 8, 1991, and the transcript of Griess’s first sentencing on May 1, 1990. From these sources, and including the,transcript of Griess’s resen-tencing on April 9, 1991, we discern the following as the district court’s reasons for departing from the guidelines-specified sentence: (1) Griess knew of other people involved with illegal drugs and yet was unwilling to report the names of those people to law enforcement authorities (characterized by the district court as misprision of a felony); (2) Griess perjured himself before the grand jury and at trial and (in the eyes of the district court) suborned the penury of his wife; (3) Griess is likely to commit more crimes; and, (4) in light of his juvenile record, Griess’s criminal history was inadéquately reflected in the PSI calculations.1 Transcript of Sentencing at 6-11 (May 1,1990). At resentencing, the district court again sentenced Griess to forty-two months in prison.

Griess now appeals from the district court’s judgment on resentencing. He argues (1) that the district court’s grounds for departure are not supported by adequate findings of fact; (2) that the district court cannot consider his juvenile record; (3) that what the district court characterized as “numerous acts of perjury” was essentially one continuous act and,, thus, his perjury cannot be considered as a ground for departure because the behavior had been taken into account in the PSI under the adjustment for obstruction of justice and the denial of an adjustment for acceptance of responsibility; and (4) that the extent of the district court’s departure is unreasonable.

II. DISCUSSION

Our standard for reviewing the district court’s decision to depart from Griess’s guidelines-specified sentence is informed [1371]*1371by the Sentencing Reform Act of 1984, a recent Supreme Court decision, and this court’s own opinions. Under the 1984 Act, a defendant may file an appeal if the sentence was imposed in violation of law, as a result of an incorrect application of the guidelines, or if the district court departed. 18 U.S.C. § 3742(a) & (b); Williams v. United States, — U.S. -, 112 S.Ct. 1112, 1118, 117 L.Ed.2d 341 (1992). A district court may depart from a guideline-specified range only when it finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b).

When a district court departs from the guidelines-specified sentence, and the defendant appeals, we are to conduct two inquiries. First, we must determine whether the sentence was “imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines.” 18 U.S.C. § 3742(f)(1); Williams, 112 S.Ct. at 1120. If the district court based its departure on a factor fully considered by the Sentencing Commission in establishing the guideline range or on a factor expressly rejected by the Commission as a ground for departure, this constitutes an incorrect application of the guidelines. Williams, 112 S.Ct. at 1119. In determining whether a factor was adequately taken into consideration by the Commission, we must look to the actual guidelines and the policy statements, among other sources. Id. Whether the aggravating circumstance actually exists is a question of fact, reviewed under a clearly erroneous standard, but whether the aggravating circumstance was adequately considered by the Commission is a question of law, reviewed de novo. United States v. Lang, 898 F.2d 1378, 1379-80 (8th Cir. 1990). If we determine that the sentence was imposed in violation of law or as a result of an incorrect application of the Guidelines, we must remand the case for further proceedings and provide the district court with appropriate instructions. 18 U.S.C. § 3742(f)(1).

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United States v. Michael R. Griess
971 F.2d 1368 (Eighth Circuit, 1992)

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971 F.2d 1368, 1992 WL 188999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-r-griess-ca8-1992.