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.
M. Cafferkey for Appellant.
M. Flannery for Appellee.
Before: GIBBONS, COOK, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
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.
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."
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.
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.
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 ...