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United States v. Griffin

United States Court of Appeals, Sixth Circuit

April 26, 2017

United States of America, Plaintiff-Appellee,
v.
Nikita Griffin, Defendant-Appellant.

         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.

         COUNSEL

         ON BRIEF:

          Kevin M. Cafferkey for Appellant.

          Paul M. Flannery for Appellee.

          Before: GIBBONS, COOK, and GRIFFIN, Circuit Judges.

          OPINION

          GRIFFIN, Circuit Judge.

         Defendant Nikita Griffin 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 resentencing because the district court made insufficient factual findings to support its imposition of a two-level enhancement for obstructing justice and its denial of a two-level reduction for acceptance of responsibility. United States v. Griffin, 656 F.App'x 138, 139 (6th Cir. 2016). Griffin now appeals 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 fraudulent proceeds. The indictment described a scheme in which a co-defendant prepared fraudulent tax returns that generated "refund anticipation" loan checks from a bank, which Griffin cashed. Pursuant to a written plea agreement, Griffin understood the maximum penalty 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 would determine the advisory Guideline 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 advised 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 post-conviction proceeding, including a proceeding under 28 U.S.C. § 2255. Defendant 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 determined under the advisory Sentencing Guidelines in accordance with the sentencing 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 Griffin's total offense level was ten "before Acceptance of Responsibility." The government agreed to recommend a two-level 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 determine whether a reduction for acceptance of responsibility is appropriate." There was no agreement regarding Griffin's applicable Criminal History Category.

          At his plea hearing, Griffin affirmed he understood he was waiving most of his rights to appeal. He also acknowledged the factual basis 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 the deposits cleared. The government further stated the taxpayer information for preparing the fraudulent returns came from an ...


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