Date: 02-28-2018

Case Style:

Case Number: 17-1041

Judge: Selya

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine

Plaintiff's Attorney: Halsey B. Frank

Defendant's Attorney: Neil L. Fishman

Description: The overriding question in this
appeal is whether the district court appropriately denied an
offense-level reduction for acceptance of responsibility under the
sentencing guidelines. The answer to this question depends, in
large part, on whether the court appropriately found certain
conduct to be "relevant conduct" within the meaning of USSG §1B1.3.
Here, however, a procedural obstacle looms between the question
and the answer: defendant-appellant D'Hati Coleman stipulated
during the sentencing proceeding (when that stipulation redounded
to his benefit) that the disputed conduct constituted relevant
conduct. He now attempts to reverse his field, arguing in this
court that the disputed conduct was not relevant conduct.
We warned, over three decades ago, that "[h]aving one's
cake and eating it, too, is not in fashion in this circuit."
United States v. Tierney, 760 F.2d 382, 388 (1st Cir. 1985). The
echoes of that warning reverberate here: the defendant cannot have
it both ways. Viewing this appeal through the prism of this
discerned wisdom and accepting the facts as supportably found by
the district court, we affirm the challenged sentence.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the
case. Because this appeal trails in the wake of a guilty plea, we
draw the facts from the undisputed portions of the presentence
investigation report (PSI Report), the amended sentencing
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stipulation, and the transcripts of the sentencing hearings. See
United States v. D'Angelo, 802 F.3d 205, 206 (1st Cir. 2015).
On September 3, 2014, a cooperating informant (CI) met
the defendant by pre-arrangement in Bangor, Maine. The defendant
produced a small bag containing approximately 273.9 milligrams of
cocaine base (crack cocaine) and sold it to the CI for $40. During
the course of this transaction, the defendant volunteered his
belief that prostitution was "the world's oldest . . . and the
most lucrative" profession. He boasted that he was a "pimp" for
three women in the Bangor area, described them, and referred to
them as "his product." He then asked the CI for directions to a
local clothing store where he intended to buy lingerie for the
women, stating that "a pimp is only as good as his product and his
product is women and he has to have the best."
On September 9, the defendant was arrested outside a
motel in New Haven, Connecticut (where he had rented a room). The
authorities recovered an unknown quantity of crack cocaine from
his person and detained a woman inside the motel room. The woman
told the officers that the defendant was her "pimp" and had
transported her from Maine in order to engage in prostitution.
She said that her customers paid the defendant in cash, but he
compensated her for her services by supplying her with drugs. The
New Haven incident resulted in the defendant's conviction on a
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state charge of possession of narcotics with intent to sell. See
Conn. Gen. Stat. § 21a-277(a).
In due course, the defendant was charged federally in
connection with the September 3 drug transaction. That indictment,
handed up in the United States District Court for the District of
Maine, charged him with the knowing and intentional distribution
of a controlled substance. See 21 U.S.C. § 841(a)(1). After some
preliminary skirmishing (not relevant here), the defendant entered
a straight guilty plea. The PSI Report treated the defendant's
pimping activities as relevant conduct. See USSG §1B1.3. The
defendant objected, claiming that the statements he had uttered to
the CI were mere rodomontade, made only to impress his customer.
So, too, he denied that he had acted as a pimp for the woman found
in his Connecticut motel room.
At a presentence conference, the district court stated
that it viewed the defendant's promotion of prostitution as
relevant conduct for sentencing purposes. During a subsequent
conference, the defendant withdrew his objection to the PSI
Report's description of his involvement in prostitution in Maine.
At the first phase of his sentencing hearing, the defendant
reverted to his original position and once again denied the
accuracy of the PSI Report's account of his prostitution-related
activities in Maine. Moreover, the defendant continued to deny
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that he had brought a woman from Maine to Connecticut for the
purpose of engaging in prostitution.
During a later hearing, the district court asked the
defendant's counsel if the defendant was admitting to his
involvement with prostitution in Maine. Before his attorney could
complete his response, the defendant began shaking his head. After
a recess, defense counsel tried to clear the air and assured the
court that the defendant admitted to his involvement with
prostitution in Maine. Counsel went on to reiterate the
defendant's denial of any involvement with prostitution-related
activities in Connecticut. Putting a fine point on his argument,
counsel stated that the defendant "does not dispute at all that
his involvement in this relevant conduct . . . is not something
that the court should take into consideration, but, rather, [is]
arguing that . . . he was not involved in taking [a woman] to
Connecticut for prostitution." At no point did counsel suggest
that prostitution-related activities were not relevant conduct
vis-à-vis the offense of conviction.
When all was said and done, the district court found
that the defendant was engaged in the promotion of prostitution
both in Connecticut and in Maine. In addition, the court found
that the defendant had falsely denied his involvement with
prostitution in Connecticut. With respect to the defendant's
involvement with prostitution in Maine, the court found that the
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defendant had engaged in "an extraordinary amount of game playing
with the court, with probation, with the government, and with his
own counsel." The court proceeded to deny the defendant an
offense-level reduction for acceptance of responsibility.
With acceptance of responsibility removed from the
equation, the court tentatively calculated the defendant's
guideline sentencing range (GSR) to be 46 to 57 months. The court
then gave effect to an amended sentencing stipulation entered into
between the parties, which authorized a time-served credit of 23
months (referable to the defendant's Connecticut conviction) "for
a sentence served on relevant conduct." This stipulated credit
lowered the defendant's GSR to 23 to 34 months. Finally, the court
imposed a mid-range term of immurement: 32 months. This timely
appeal followed.
II. ANALYSIS
Represented by new counsel on appeal, the defendant
argues that the district court erred in refusing to grant him an
offense-level reduction for acceptance of responsibility, see USSG
§3E1.1, which would have produced a lower GSR and presumably a
more lenient sentence. To be specific, he assigns error to the
district court's determination that his promotion of prostitution
in both Connecticut and Maine constituted relevant conduct for
which he did not accept responsibility.
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We review questions of law, including questions about
the district court's interpretation of the sentencing guidelines,
de novo. See United States v. Suárez-González, 760 F.3d 96, 99
(1st Cir. 2014). "Recognizing the special difficulty of
discerning, on a cold record, whether a defendant's expressions of
remorse were in earnest," we review the quintessentially factual
determination of whether a defendant has accepted responsibility
for clear error. United States v. Deppe, 509 F.3d 54, 60 (1st
Cir. 2007). These standards are altered when an appellant has
failed seasonably to make a particular argument below: in that
event, our review is normally for plain error. See United States
v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). Last — but surely
not least — when a party has intentionally relinquished or
abandoned a particular argument, that argument is deemed waived.
See id. Waived arguments are not subject to appellate review.
See United States v. Washington, 434 F.3d 7, 11 (1st Cir. 2006);
Rodriguez, 311 F.3d at 437.
Here, the defendant's primary contention is that the
district court should not have denied him an offense-level
reduction for acceptance of responsibility based on what he had
told the court about his involvement in prostitution. This
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contention is predicated on the notion that such involvement did
not constitute relevant conduct under USSG §1B1.3.1
In making its acceptance-of-responsibility
determination, the district court was obliged to consider, among
other things, whether the defendant "truthfully admitt[ed] the
conduct comprising the offense[] of conviction, and truthfully
admitt[ed] or [did] not falsely den[y] any additional relevant
conduct for which the defendant is accountable under § 1B1.3."
USSG §3E1.1, comment. (n.1(a)). As a threshold matter, the
government asserts that the defendant has waived his right to
challenge this determination.2 In the government's view, the
defendant twice relinquished his right to argue that his promotion
of prostitution was not relevant conduct. First, the government
notes that while the defendant contested the veracity of the PSI
Report's statements to the effect that he had brought a woman from
1 In drug-trafficking cases, "relevant conduct" includes all
acts and omissions "that were part of the same course of conduct
or common scheme or plan as the offense of conviction." USSG
§1B1.3(a)(2). The "sweeping" language of section 1B1.3 affords a
sentencing court wide discretion to determine whether particular
conduct falls within the definition. United States v. Watts, 519
U.S. 148, 153-54 (1997)(per curiam); see D'Angelo, 802 F.3d at
210-11 (holding that sentencing court may consider all relevant
conduct regardless of whether such conduct is either charged or
constitutes an element of the offense of conviction).
2 Waiver is the intentional relinquishment or abandonment of
a claim or defense. See Hamer v. Neighborhood Hous. Serv. Of Chi.,
138 S. Ct. 13, 17 n.1 (2017). Waiver is wholly distinguishable
from forfeiture, which arises when a party has failed to make a
"timely assertion of a right." Id. (quoting United States v.
Olano, 507 U.S. 725, 733 (1993)).
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Maine to Connecticut in order to engage in prostitution, he
effectively conceded that such a fact, if true, would constitute
relevant conduct. Second, the government asserts that the
defendant waived his relevant conduct claim when he joined with
the prosecution in stipulating for a time-served reduction (23
months) to his guideline range "for a sentence served on relevant
conduct." The events to which the government alludes combine to
justify a finding of waiver.
The government's first claim of waiver stems from a
statement made by defense counsel during sentencing. Counsel
acknowledged that even though the defendant denied bringing a woman
to Connecticut for the purpose of prostitution, he did "not dispute
at all that his involvement in this relevant conduct" was something
that — if true — the court should consider. Counsel's matter-offact
acknowledgement that the allegations concerning the
defendant's involvement in prostitution, if found to be true, would
form the basis for a finding of relevant conduct itself seems
sufficient to ground a finding of waiver. See United States v.
Walker, 538 F.3d 21, 23 (1st Cir. 2008) (holding that defendant
waived any right to claim as error a sentencing rationale that she
had advanced before the district court); United States v. Ramirez-
Rivera, 241 F.3d 37, 39-40 (1st Cir. 2001) (holding that party who
acknowledged district court's discretion to act had waived any
argument to the contrary); United States v. Coady, 809 F.2d 119,
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121 (1st Cir. 1987) (rejecting assignment of error based on lack
of entrapment instruction after defense counsel represented to
trial court that entrapment was "not an issue in this case").
The second building block on which the government erects
its claim of waiver is even sturdier. Having represented that the
events underlying his Connecticut conviction constituted relevant
conduct in order to secure a reduction in his federal sentence,
the defendant cannot now do an about-face and be heard to complain
that the same conduct should be deemed irrelevant for other
sentencing purposes. See United States v. Melvin, 730 F.3d 29, 40
(1st Cir. 2013) (concluding that party could not dismiss evidence
as trivial on appeal after having argued below that the same
evidence was prejudicial); Tierney, 760 F.2d at 388 (similar).
The doctrine of judicial estoppel offers a useful
perspective. Though civil in nature, the rationale underlying
judicial estoppel is implicated here. The doctrine "prevent[s] a
litigant from taking a litigation position that is inconsistent
with a litigation position successfully asserted by him in an
earlier phase of the same case or in an earlier court proceeding."
Perry v. Blum, 629 F.3d 1, 8 (1st Cir. 2010). Viewed in a practical
light, the doctrine protects the "integrity of the judicial
process" against a party who "tries to play fast and loose with
the courts." Id.
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The analogy is both obvious and compelling. Here, the
defendant stipulated that the circumstances underlying his
Connecticut conviction constituted relevant conduct for sentencing
purposes when such a stipulation worked in his favor. Thus, it is
eminently fair to preclude him from arguing, at a later stage of
the same case, that the circumstances underlying that conviction
are not relevant conduct.
Having concluded that principles of waiver foreclose the
defendant's relevant conduct claim, we turn to the defendant's
lone remaining claim of error. He submits that, regardless of
whether the district court was correct in measuring the dimensions
of his relevant conduct, the court erred in determining that he
had not accepted responsibility within the purview of USSG §3E1.1.
We review this claim for clear error. See Deppe, 509 F.3d at 60.
Under section 3E1.1, a defendant may receive an offenselevel
reduction if he clearly demonstrates that he has accepted
responsibility for the offense of conviction. See United States
v. Jordan, 549 F.3d 57, 60 (1st Cir. 2008). To secure such a
reduction,3 the defendant must show that he "truthfully admitt[ed]
3 The extent of an offense-level reduction for acceptance of
responsibility may vary. A defendant who has "clearly
demonstrate[d] acceptance of responsibility" may receive a twolevel
reduction. USSG §3E1.1(a). "If the defendant receives this
first-tier adjustment and if [certain other conditions are met],
[a] second tier comes into play." United States v. Meléndez-
Rivera, 782 F.3d 26, 29 (1st Cir. 2015). When a defendant reaches
that second tier, he may become eligible to receive an additional
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the conduct comprising the offense[] of conviction, and truthfully
admitt[ed] or [did] not falsely deny [] any additional relevant
conduct . . . ." USSG §3E1.1, comment. (n.1(a)); see United States
v. Melendez, 775 F.3d 50, 59 (1st Cir. 2014); United States v.
Garrasteguy, 559 F.3d 34, 38 (1st Cir. 2009). The devoir of
persuasion rests with the defendant, see Deppe, 509 F.3d at 60,
and he must carry that burden by a preponderance of the evidence,
see United States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990).
It is common ground that "[a]cceptance of responsibility
entails more than merely mouthing the vocabulary of contrition."
See Deppe, 509 F.3d at 60. To the contrary, the defendant must
persuade the sentencing court that "he has taken full
responsibility for his actions, and he must do so candidly and
with genuine contrition." United States v. Saxena, 229 F.3d 1, 9
(1st Cir. 2000).
In the case at hand, the district court found that the
defendant falsely denied his involvement in the prostitutionrelated
activities that the court supportably determined
constituted relevant conduct. The defendant's challenge to this
finding contains more cry than wool.
The record shows, beyond hope of contradiction, that the
defendant — through objections to the PSI Report, arguments at
one-level reduction. See USSG §3E1.1(b)(specifying requirements
for three-level reduction).
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sentencing, and positions taken in his sentencing memorandum —
repeatedly denied any involvement in the promotion of prostitution
in Connecticut. His spurious denials of this relevant conduct,
without more, defenestrate his claim that he should have been given
an offense-level reduction for acceptance of responsibility.
If more were needed — and we do not think that it is —
the district court also found that the defendant did not accept
responsibility for his promotion of prostitution in Maine. That
finding is not clearly erroneous. Even though the defendant
eventually admitted his involvement in prostitution in Maine, he
equivocated on the issue and altered his position several times.
This backing and filling led the district court to conclude
(supportably, we think) that the defendant had engaged in "an
extraordinary amount of game playing with the court, with
probation, with the government, and with his own counsel."
A defendant cannot bob and weave before the sentencing
court, equivocate about whether a material fact is true or is not,
and then lay claim to a credit for acceptance of responsibility by
coming clean at the eleventh hour. Such a checkered course of
conduct is inconsistent with the requirement that a defendant
"candidly" take responsibility and show "genuine contrition" for
his conduct, and a sentencing court may decline to grant an
offense-level reduction for acceptance of responsibility in such
circumstances. Saxena, 229 F.3d at 9.
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That ends this aspect of the matter. We conclude,
without serious question, that the district court did not clearly
err in refusing to grant the defendant an offense-level reduction
for acceptance of responsibility.

Outcome: We need go no further. For the reasons elucidated above,
the defendant's sentence is

Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: