                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0599n.06

                                       Case No. 17-4100

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                           Nov 29, 2018
UNITED STATES OF AMERICA,                          )                   DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE SOUTHERN DISTRICT OF
OMAR ISRAEL-GRIFFIN,                               )       OHIO
                                                   )
       Defendant-Appellant.                        )
                                                   )
____________________________________/              )


Before: KEITH, CLAY, NALBANDIAN, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. Omar Israel-Griffin (“Israel-Griffin”) pled guilty to

one count of distributing heroin and fentanyl, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),

and 846. The district court sentenced him to 235 months of imprisonment. On direct appeal,

Israel-Griffin claims his defense counsel was ineffective for failing to request any downward

variance or departure from a guidelines-calculated sentence. Specifically, he argues that his

defense counsel failed to present any mitigating factors in support of a variance, and failed to

request a departure based on an over-representation of his Criminal History Category designation.

For the reasons that follow, we decline to hear Israel-Griffin’s ineffective assistance of counsel

claims, and DISMISS them without prejudice.
Case No. 17-4100, United States v. Israel-Griffin


                                                 I.

        On May 4, 2016, the grand jury indicted Israel-Griffin on two counts of unlawful

distribution of substances containing heroin and fentanyl. An individual named Ethan Blair

(“Blair”) purchased drugs from Israel-Griffin on November 19, 2015. That same day, Blair was

found dead in his home. An autopsy revealed that Blair’s death was caused by heroin fentanyl

intoxication. The parties agree that Israel-Griffin’s distribution caused Blair’s death.

        On April 18, 2017, the Government filed a one-count superseding information, charging

Israel-Griffin for the November 19, 2015 distribution. Israel-Griffin subsequently pled guilty to

the information via a Rule 11 plea agreement. The district court accepted Israel-Griffin’s guilty

plea.

        After the plea hearing, the United States Probation Office prepared a presentence

investigation report (“PSR”). The Probation Office calculated a total offense level of 35, a

Criminal History Category of IV, and a guidelines range of 235 to 293 months imprisonment.

After taking into account the 20-year statutorily maximum sentence, the guidelines range was

adjusted to 235 to 240 months. Probation recommended Israel-Griffin be sentenced to 235 months

imprisonment.

        The PSR details Israel-Griffin’s personal history. He was raised by a single mother who

struggled financially. His father regularly used marijuana cigarettes laced with crack cocaine,

including during the time he was conceived. Eventually, his father abused solely crack cocaine

and died of an overdose when Israel-Griffin was 13 years old. His mother indicates that after his

father’s death, Israel-Griffin buried his emotions, which led to him abusing drugs. Israel-Griffin

first tried marijuana at age 10 with older boys in the neighborhood. By age 13, he was smoking

marijuana daily, eventually experimenting with prescription opiates, molly, and ecstasy. Israel-


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Case No. 17-4100, United States v. Israel-Griffin


Griffin first tried heroin at age 24, and admits to currently being addicted to it. Lacking a positive

male role model, he was influenced by local drug dealers, and began selling drugs to support his

addictions. He also reports being exposed to a significant amount of violence in his neighborhood,

including witnessing people being shot and killed. The PSR indicates that Israel-Griffin has three

children and believes he is a “great father.” R. 4-1, PSR, ¶ 102, 103, 105. He believes that he is

not a bad person, has a strong support system, and hopes that he and his family can relocate to

Florida after his release to get a “clean slate.” Id. at ¶ 104-06.

       The PSR also details Israel-Griffin’s criminal history, including 13 adult criminal

convictions. Seven of these convictions were for misdemeanor marijuana possession, and one was

for felony possession of heroin.

       At the sentencing hearing, the district court recited the guidelines calculations of the PSR.

The district court invited objections to the calculations and the facts stated in the PSR, to which

there were none. The district court then adopted the PSR’s findings of fact, and then invited

arguments from counsel.

       Defense counsel conveyed that Israel-Griffin felt a “tremendous amount of remorse” and

does not minimize the tragic consequences of this case. He then invited Israel-Griffin’s mother to

speak, who said she was heartbroken, and that her son did not intentionally try to harm anyone.

She also explained that she and Israel-Griffin have experienced loss due to drugs, notably through

the death of his father. Israel-Griffin also addressed the district court. He apologized to Blair’s

family, and said he never intended for anyone to get hurt, but that he was an addict supporting his

own habits. He acknowledged that his own selfishness and stupidity caused Blair’s death. After

Israel-Griffin concluded, the district court asked defense counsel if there was anything else he

wanted to add, to which defense counsel responded “no.”


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Case No. 17-4100, United States v. Israel-Griffin


        After hearing from the Government, which recommended a 235-month sentence, and

Blair’s mother, the district court briefly outlined the investigation that led to Israel-Griffin’s arrest

and eventual guilty plea. Taking into consideration all that had been presented, the district court

found that nothing before it would warrant either a departure or variance from the calculated

guidelines sentence. The district court sentenced Israel-Griffin to 235 months in prison.

        Israel-Griffin filed this appeal.

                                                   II.

        Israel-Griffin argues that he was denied the effective assistance of counsel at his sentencing

hearing. First, he argues that facts contained in the PSR, and offered in prior court hearings, set

forth numerous areas of mitigation. He notes that 18 U.S.C. § 3553(a) requires a court to consider

the history and characteristics of the defendant in fashioning his sentence. Israel Griffin’s history

of drug addiction, the drug-related death of his father, and his current employment and familial

status, he argues, are all relevant 3553(a) factors that should have been presented to the district

court in support of a variance below the guidelines range.

        Second, he argues that defense counsel could have requested a downward departure under

United States Sentencing Guidelines § 4A1.3(b)(1), based on the over-representation of his

Criminal History Category IV designation. Israel-Griffin notes that he has no prior convictions

for drug trafficking, and has never been sentenced to prison. As such, he says he had a viable

argument that his Category IV designation overstates the seriousness of his record, and defense

counsel failed to make this argument.

        Defense counsel’s failure to request a variance or departure, argues Israel-Griffin,

prejudiced him, and constitutes deficient performance since there was no strategic reason for doing




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Case No. 17-4100, United States v. Israel-Griffin


so. The Government argues that the record is not sufficiently developed to permit this court to

review Israel-Griffin’s claims on direct appeal.

       “[A] defendant claiming ineffective counsel must show that counsel’s actions were not

supported by a reasonable strategy and that the error was prejudicial.” Massaro v. United States,

538 U.S. 500, 505 (2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)). “Generally, this

court will not review an ineffective assistance of counsel claim that is raised for the first time on

appeal.” United States v. Pruitt, 156 F.3d 638, 646 (6th Cir. 1998) (internal citation and quotation

omitted). Such claims are more properly available in a collateral proceeding under 28 U.S.C. §

2255, after the parties have had an opportunity to adequately develop a record that allows the

reviewing court to make an informed decision. United States v. Rahal, 191 F.3d 642, 645 (6th Cir.

1999). As an exception, this court will review an ineffective assistance claim “where the record is

adequately developed to allow the court to properly assess the merits of the issue.” United States

v. Williams, 612 F.3d 500, 508 (6th Cir. 2010) (internal citation and quotation omitted).

       When an ineffective assistance claim is brought on direct appeal, “[t]he appellate court

may have no way of knowing whether a seemingly unusual or misguided action by counsel had a

sound strategic motive . . . . ” Massaro, 538 U.S. at 505. Here, as the Government noted, there is

no record of why defense counsel chose not to request a variance or departure. Thus, while Israel-

Griffin argues that the record adequately demonstrates the grounds for variance and departure, he

has not established that the record reflects what, if any, strategic considerations defense counsel

made in deciding not to request a variance or departure.

       The resolution of Israel-Griffin’s claims requires information not currently contained in the

record, and to develop this record, his claims should first be raised in the district court. United

States v. Hardin, 437 Fed. Appx. 469, 473 (6th Cir. 2011). “When the record is insufficient to


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Case No. 17-4100, United States v. Israel-Griffin


show whether the alleged wrongful acts could be considered sound trial strategy, we will not

review the defendant’s ineffective assistance of counsel claims for the first time on direct appeal.”

United States v. Kincaide, 145 F.3d 771, 785 (6th Cir. 1998) (internal citation and quotation

omitted). See also United States v. Crowe, 614 Fed. Appx. 303, 311 (6th Cir. 2015) (declining to

resolve an ineffective assistance claim on direct appeal and finding that the record was “not

sufficiently developed to enable us to determine whether trial counsel’s failure to cross-examine

certain witnesses was an instance of deficient performance or the exercise of legitimate trial

strategy”); United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006) (holding that an

ineffective assistance claim was not ripe for review on direct appeal, as the record contained no

evidence as to why trial counsel did not to file additional motions or challenge expert testimony).

Accordingly, we decline to address the merits of Israel-Griffin’s ineffective assistance of counsel

claims.

                                                 III.

          “The proper action in situations such as this is to dismiss the [ineffective assistance of

counsel] claims from a defendant’s direct appeal without prejudice.” United States v. Makki, 129

Fed. Appx. 185, 190 (6th Cir. 2005). Accordingly, Israel-Griffin’s claims are DISMISSED

without prejudice, so that if he chooses, he may raise them again on collateral review.




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