United States v. Gordon Grigg, 434 F. App'x 530

Gordon Grigg operated a Ponzi scheme, pled guilty to wire and mail fraud, and received a 120-month sentence above the advisory guidelines range.
PSR described him as an investment advisor who misused clients’ funds to pay fictitious earnings and to benefit himself, with forged documents and fake partnerships.
Victims testified at sentencing about his use of Christian faith to gain trust; the district court imposed an upward variance based on preying on vulnerable individuals and his use of religion.
The CVRA granted victims the right to be heard; the district court considered their statements in deciding the sentence.
The district court explained the sentence was a variance under § 3553(a), not a guideline departure, and the court considered aggravating factors including vulnerability of victims and religious manipulation.
The defense challenged the sentence on substantive reasonableness, religion-based aggravation, victim-oath requirements, and need for advance notice under Rule 32(h).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Substantive reasonableness of the sentence	Grigg argues the sentence exceeds what is reasonable within the guidelines	The government/Grigg contends the court properly weighed § 3553(a) factors and imposed a reasonable variance	Affirmed; no abuse of discretion in substantive reasonableness
Use of religion as an aggravating factor	Religion should not be used to aggravate punishment under § 5H1.10	Use of religious appeals to victims is a valid moral factor in sentencing	Affirmed; no abuse of discretion; court may consider moral failure, not religious belief per se
Victim statements and oath requirement at sentencing	CVRA victims are entitled to be heard, potentially with oaths	No oath requirement exists for victims at sentencing	Plain error not established; no oath requirement; no reversible error from victim statements
Advance notice for upward variance under Rule 32(h)	defendant entitled to advance notice that sentence could exceed guidelines	variance under § 3553(a) does not require Rule 32(h) notice	Not a Rule 32 violation; variances do not require the same notice as departures

United States v. Houston, 529 F.3d 743 (6th Cir. 2008) (abuse-of-discretion standard for sentencing review)
United States v. Tate, 516 F.3d 459 (6th Cir. 2008) ( factors analysis under § 3553(a))
United States v. Ferguson, 456 F.3d 660 (6th Cir. 2006) (weight given to § 3553(a) factors; no presumption against outside-range sentences)
United States v. Rossi, 422 F. App’x 425 (6th Cir. 2011) (citations to other cases not definitive proof of disparity)
United States v. Gunderson, 211 F.3d 1089 (8th Cir. 2000) (upholding consideration of moral failure for sentencing)
United States v. Bakker, 925 F.2d 728 (4th Cir. 1991) (insulation of religiosity from punitive purpose; not reversible error)
Irizarry v. United States, 553 U.S. 708 (2008) (rule governing notice for variances; no Rule 32(h) requirement for § 3553(a) variances)
United States v. Blackie, 548 F.3d 395 (6th Cir. 2008) (Rule 32 notice and variance considerations)
United States v. Marcello, 370 F. Supp. 2d 745 (N.D. Ill. 2005) (victim impact statements at sentencing without oath)
Myers, 402 F. App’x 844 (4th Cir. 2010) (victim impact statements without oath at sentencing)