United States v. Coker ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0043p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 06-6504
v.
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NATALIE COKER, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 05-00232—Robert L. Echols, District Judge.
Argued: October 26, 2007
Decided and Filed: January 24, 2008
Before: BOGGS; Chief Judge; KENNEDY, Circuit Judge; and JORDAN, District Judge.*
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COUNSEL
ARGUED: Richard J. Braun, BRAUN & CROTWELL, Nashville, Tennessee, for Appellant. Eli
Richardson, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.
ON BRIEF: Richard J. Braun, BRAUN & CROTWELL, Nashville, Tennessee, for Appellant. Eli
Richardson, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.
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OPINION
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BOGGS, Chief Judge. A grand jury indicted Natalie Coker on five counts of conspiring to
defraud the United States, taking bribes, and violating the federal conflict of interest laws. Coker
pleaded guilty to a single count of committing an illegal conflict of interest, in return for having the
other charges dropped. The district judge sentenced her to forty-six months of imprisonment. Coker
appeals, arguing that prosecutorial misconduct and incorrect guidelines calculations warrant
vacating her sentence. We affirm because her various arguments are either waived, withdrawn, or
meritless.
*
The Honorable R. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
1
No. 06-6504 United States v. Coker Page 2
I
Natalie Coker worked as the Assistant Director of the Veteran’s Administration’s
Consolidated Mail Outpatient Pharmacy (“CMOP”) in Murfreesboro, Tennessee. Her supervisor
was Joseph Haymond. CMOP mailed subsidized prescription drugs to veterans. In 1999, Coker and
Haymond, aided by several co-conspirators, began exploiting their public jobs for personal gain.
A
One co-conspirator, Michael Walsh, owned Industrial Supply Company. In 1999, he learned
from a business associate, Dick Pruett, that CMOP was looking for someone to supply security tape
at a lower price than the $18.50 per roll CMOP was paying 3M. Walsh found a vendor in New
Jersey, CGM, willing to sell tape for $2.50 a roll.1 After Haymond approved samples of the tape,
Pruett arranged a meeting on August 19, 1999, between himself, Haymond, Coker, and Walsh to
discuss the sale. At the meeting, Haymond told Walsh to sell the tape to CMOP for $6.51 per roll,
pay Haymond and Coker each a kickback of $1 per roll, and keep the rest. Coker told Walsh to
subdivide each order into smaller parts to circumvent official purchasing rules and facilitate the
kickback.
Soon afterwards, Walsh began selling tape to the CMOP. He later raised his price to $6.90
to help cover the taxes he was paying on the sales. Coker and Haymond knew of, and did not object
to, the price increase. Walsh testified that his usual markup was 30% and, absent the kickbacks, he
would have sold the tape for between $3.40 and $3.50 a roll. Over the next 22 months, Walsh sold
over 115,000 rolls of tape to CMOP, and paid Coker and Haymond over $115,000 each in
kickbacks. The scheme ended in 2001 when the VA’s regional purchasing department took over
the tape purchases.
Walsh continued to sell other supplies to CMOP after the tape conspiracy ended. In early
2004, Haymond told Walsh that CMOP had sixteen extra pallets of six-by-nine mailer bags and
asked if Walsh could sell them elsewhere. Walsh contacted Jay Cooper, Director of the Dallas
CMOP. Walsh knew Cooper from previous deals, unrelated to CMOP, where Walsh had paid
kickbacks to Cooper, and this time Walsh convinced Cooper to buy five of the pallets from CMOP.
After the sale, Haymond sought his usual kickback, and told Walsh to pay Coker her cut
immediately because she “needed the money.” Coker’s share was $3500. Coker then ordered
Walsh to write, on Walsh’s stationary, a letter explaining the sale that would help Coker justify the
sale in case the CMOP was ever audited. Walsh complied. In fall 2005, Walsh began cooperating
with the FBI’s investigation into the CMOP and agreed to wear a wire during his conversations with
Haymond and Coker.
Another co-conspirator, Michael Barrett, practiced law in Alabama until he was disbarred
for, as he euphemistically put it, “using some client funds to pay bills.” He then entered the
consulting business with his partner Kevin Bowling. They founded EconoGenesys, which made
money by helping other businesses win government contracts and then taking a commission on the
contract. Around January 2002, another VA employee referred Coker and Haymond to Barrett for
advice. Several months later, Barrett began connecting contractors with the CMOP. From 2000–03,
about ninety percent of EconoGenesys’s revenue came from placing clients with the CMOP. Coker
and Haymond knew about the contracts, and they hired Barrett as a temporary employee of the
CMOP from July to October 2002.
1
The price difference reflects a quality difference. 3M’s tape was “tamper evident” and Walsh initially told
CGM that he wanted “tamper evident” tape, but the tape Walsh ended up buying and reselling to CMOP was not in fact
“tamper evident.”
No. 06-6504 United States v. Coker Page 3
Sometime during Barrett’s temporary employment, Haymond and Coker gave Barrett a
spreadsheet showing all the contracts that Barrett had set up with CMOP. They demanded that
Barrett pay them half of his profits. Barrett protested that if he paid them half, he would end up
losing money after taxes. Coker responded that the taxes were Barrett’s problem, and that if he did
not pay, he “would be out of the CMOP and she would tell everyone what a sorry bastard [he] was.”
The three of them met again several weeks later, and Barrett agreed to pay the kickbacks as
demanded. Barrett began making payments and continued to do so until the end of 2003. He paid
Haymond and Coker a combined total of between $60,000 and $90,000.
Around the time of Barrett’s temporary work for CMOP, Coker and Haymond also asked
Barrett to find a reliable company to repack, or prepack, prescription drugs into specific quantities
and then ship the drugs to patients. When Barrett told his business partner Kevin Bowling of the
request, Bowling suggested that Bowling’s father-in-law Bob Allen might be interested in forming
a company to handle the job. Barrett, Bowling, Allen, Coker, and Haymond met to discuss the
details of the operation, and then Bowling, Allen, and two other minor investors formed PrePak
Systems, Inc. (“PrePak”) to handle the job. Coker helped PrePak with initial logistical and
regulatory issues and wrote a formal letter to help PrePak obtain credit. PrePak received the contract
in May 2003.
At the same time that Coker was advising PrePak’s start-up operations and helping PrePak
win the CMOP contract, Coker began to negotiate with PrePak for employment. These negotiations
took place over e-mail between November 7 and November 15. The parties discussed extensively
the terms of employment, but Coker ended up declining the offer because she did not want to move.
B
Coker and Haymond were arrested on November 29, 2005. Haymond killed himself the next
day. A grand jury indicted Coker on December 28, 2005, and issued a superseding indictment on
February 22, 2006. The superseding indictment charged Coker with one count of conspiring with
Haymond and Walsh to defraud the United States, in violation of 18 U.S.C. § 371, three counts of
bribery, in violation of 18 U.S.C. § 201(b)(2), and one count of having an illegal conflict of interest
by negotiating for employment with PrePak when that company had official business before her as
a government employee, in violation of 18 U.S.C. §§ 208(a) and 216(a)(2). On March 24, 2006,
Coker pleaded guilty to the illegal conflict of interest count in return for having the other counts
dropped.
The plea agreement stated that the maximum punishment was five years of imprisonment.
It also contained two other paragraphs pertinent to this appeal. First, Coker explicitly waived her
right to appeal her sentence for any reason other than involuntariness, ineffective assistance of
counsel, prosecutorial misconduct, or an upward departure from the guidelines. Second, the plea
stated that while the base offense level for her crime was 6 under U.S.S.G. § 2C1.3(a), no agreement
between the parties existed as to “whether the cross-reference in U.S.S.G. § 2C1.3(c)(1) for an
offense involving a bribe would apply as related conduct.” The district court established that Coker
acted knowingly and voluntarily when she signed her plea and that she knew the terms of the plea
agreement.
The PSR estimated the total loss from Coker’s corruption at $417,120. It reached this figure
by multiplying 115,480, the number of rolls Walsh sold the CMOP, by the inflated price he charged
to get $782,026, then by multiplying 115,480 by $3.45, the price for which the government said the
tape could have been purchased elsewhere, to get $398,406, and finally by subtracting $398,406
from $782,026 to get $383,620. The PSR added $30,000 for Coker’s kickbacks on contract
commissions from Barrett and $3500 for Coker’s kickback on the mailer bags from Walsh to reach
a final loss amount of $417,120.
No. 06-6504 United States v. Coker Page 4
The sentencing hearing took place on October 13 and 16, 2006. The government introduced
extensive testimony to prove Coker’s kickbacks as “relevant conduct” for sentence enhancement
purposes. The court accepted the facts in the PSR, found Coker’s kickbacks to be relevant conduct,
and therefore determined that her crime of conviction involved a bribe. Based on this conclusion,
the court applied the cross-reference in U.S.S.G. § 2C1.3 (governing Coker’s crime of conviction)
to U.S.S.G. § 2C1.1. This boosted Coker’s base offense level from 6 to 10. The court added two
levels under U.S.S.G. § 2C1.1(b)(1) because more than one bribe occurred, and then added fourteen
more levels under § 2C1.1(b)(2) because the amount of loss was between $400,000 and $1,000,000.
The court then subtracted three levels for acceptance of responsibility to reach a final offense level
of 23. Her guideline range was 46–57 months because her Criminal History Level was I. The court
described Coker’s culpability as “severe,” but chose the lowest sentence within the guidelines, rather
than the 57-month sentence the government requested, because of the court’s analysis of the § 3553
factors and its mild discomfort with the government’s decision to bring Coker’s other conduct in
“through the back door” of sentence enhancements.
Walsh pleaded guilty on March 23, 2006, the day before Coker pleaded guilty, to one count
of conspiring to defraud the United States. His plea agreement listed a base offense level of 10 and
an eight-level enhancement for a loss that exceeded $200,000. Although the agreement does not so
state, Walsh testified that he was also cooperating with the government against Jay Cooper and was
not going to be prosecuted for his payment of kickbacks to Cooper. Walsh’s PSR recommended that
Walsh receive only a two-year sentence because of his extensive cooperation.
Walsh’s sentencing hearing took place on January 12, 2007. At the hearing, the government
stipulated to a loss amount of $263,000, based on the estimated $120,000 in taxes that Walsh paid
on his revenue from the tape sales. The government also asked the court to depart downward
because of Walsh’s substantial assistance to the government. The court did depart downward, and
sentenced Walsh to three years of probation.
Coker now appeals her sentence. We have jurisdiction under 28 U.S.C. § 1291.
II
Coker asks us to vacate her sentence on grounds of prosecutorial misconduct, erroneous
sentence calculations, and ineffective assistance of counsel. We consider only her prosecutorial
misconduct claims on their merits; as will be explained later, she has waived her sentencing claim
and withdrawn her ineffective assistance claim.
A
We usually review claims of prosecutorial misconduct de novo. United States v. Green, 305
F.3d 422, 429 (6th Cir. 2001). However, if the defendant did not raise the misconduct claim below,
we review the record only for plain error. United States v. Emuegbunam, 268 F.3d 377, 406 (6th
Cir. 2001). Proving plain error requires proving that: “(1) an error occurred in the district court; (2)
the error was obvious or clear; (3) the error affected the defendant’s substantial rights; and (4) this
adverse impact seriously affected the fairness, integrity, or public reputation of the judicial
proceedings.” Emuegbunam, 268 F.3d at 406. Coker did not raise her claim of prosecutorial
misconduct below; therefore, we review only for plain error. We reject her appeal because we hold
that no prosecutorial misconduct occurred, let alone misconduct sufficient to constitute plain error.
B
Coker complains about three incidents of misconduct. She argues that misconduct occurred
when the government: 1) stipulated with Walsh to a lower loss than the government argued that she
No. 06-6504 United States v. Coker Page 5
was responsible for; 2) violated Brady by failing to disclose this stipulation; and 3) tried to prove
the loss amount at the sentencing hearing in a manner inconsistent with the PSR.
Coker raises an unusual prosecutorial misconduct claim. Most claims of prosecutorial
misconduct address the prosecutor’s conduct at trial rather than at sentencing. See, e.g., United
States v. Garcia-Meza, 403 F.3d 364, 373 (6th Cir. 2005) (discussing and applying test for whether
prosecutor’s statements during closing argument constituted misconduct). The few misconduct
claims addressing conduct at a sentencing hearing usually deal with the prosecutor’s comments at
the sentencing phase of a death penalty case, not the sentencing hearing in a run-of-the-mill fraud
case. See, e.g., Bates v. Bell, 402 F.3d 635, 649 (6th Cir. 2005) (discussing prosecutorial misconduct
at death-penalty sentencing hearings).
The reason for Coker’s novel prosecutorial misconduct claims is easily found. Her plea
agreement waived her right to appeal any issues except prosecutorial misconduct, ineffective
assistance, and an upward departure from the guidelines. She seeks to “dress up” her arguments “in
the guise of ‘prosecutorial misconduct’ . . . in an effort to circumvent the waiver in he[r] plea
agreement.” United States v. Cook, 89 F. App’x 988, 1001 (6th Cir. 2004). Coker will not be
permitted by artful pleading to evade the plain language in her plea agreement, so we will consider
first whether each incident she identifies is a type that can ever constitute prosecutorial misconduct
before we consider whether any misconduct occurred in her case.
Furthermore, we note that “not every error [by a prosecutor] amounts to misconduct.”
United States v. Montgomery, 990 F.2d 266, 271 (7th Cir. 1993). Coker must show prosecutorial
misconduct, not merely some error by a prosecutor. Prosecutorial misconduct requires showing
prejudice, United States v. Layne, 192 F.3d 556, 579 (6th Cir. 1999), so absent prejudice, Coker
cannot prevail.
1. Stipulation of Loss Amount
The government argued at Coker’s sentencing hearing that the loss amount from Coker’s
kickbacks with the red tape was $383,000. Three months later, at Walsh’s sentencing hearing, the
government asked the district court to find that the loss amount for Walsh’s involvement in the same
scheme was $263,000. The lower amount reflected the estimated $120,000 in taxes that Walsh paid
to the government on the $383,000 he made on the tape sales.
The taxes Walsh paid were factored into Walsh’s loss amount because the guidelines state
that the loss amount should be reduced by “[t]he money returned . . . by the defendant or other
persons acting jointly with the defendant, to the victim before the offense was detected.” U.S.S.G.
§ 2B1.1 comment (n.2(E)(i)). Coker assumes that she is entitled to the same credit because she
“acted jointly” with Walsh in committing the crime. She misreads the provision. It refers to those
who act jointly to ameliorate the crime, not to commit it. Walsh paid taxes on his ill-gotten gains;
Coker neither paid nor helped Walsh pay his taxes, and she cannot take advantage of the provision.
Coker argues that these “inconsistent” loss amounts between herself and Walsh constitute
prosecutorial misconduct because one of the stipulations must be “inaccurate.” Cf. United States
Attorneys’ Manual § 9–16.300 (prohibiting government attorneys from stipulating to a fact that is
not accurate). The argument initially fails to recognize that two different loss amounts, for two
different defendants, can both be accurate because the different loss amounts reflect the different
loss for which each defendant was responsible.
Furthermore, the government’s different loss calculations cannot be prosecutorial
misconduct—let alone misconduct that rises to plain error—because the government has no
obligation to stipulate to identical loss amounts with co-conspirators. United States v. Pierce, 409
F.3d 228, 233–34 (4th Cir. 2005) (holding loss stipulation of between $70,000 and $120,000 with
No. 06-6504 United States v. Coker Page 6
one defendant and between $120,000 and $200,000 with co-conspirator permissible in a mail fraud
case). Our circuit has approved a government stipulation to a lower amount of drugs with one
defendant in a drug conspiracy than the government attributed to another defendant who was
convicted at trial. McCoy v. United States, No. 96-2384, 1998 WL 252762, at *2 (6th Cir. May 11,
1998). McCoy followed cases from other circuits that had held the doctrine of non-mutual collateral
estoppel inapplicable in criminal cases. Ibid. (citing United States v. Valdez-Soto, 31 F.3d 1467,
1476 (9th Cir. 1994), and United States v. Montes, 976 F.2d 235, 239 (5th Cir. 1992)).
The prosecutor’s decision to give Walsh a credit for the taxes he paid as “money returned
to the victim” under U.S.S.G. § 2B1.1 comment (n.2(E)(i)) was not required by the Guidelines.
Walsh’s payment of taxes can be seen as Walsh covering his tracks and avoiding a tax fraud
prosecution as easily as it can be seen as returning money to the victim. The reduction was more
likely part of a deal between Walsh and the prosecution in return for Walsh’s cooperation. But this
does not help Coker, because while the provision is only arguably applicable to Walsh, it is clearly
inapplicable to her. She returned nothing. Given this fact, and, more importantly, the clear
irrelevance of non-mutual collateral estoppel in criminal cases, we hold that the government’s
decision to stipulate a different loss amount with Walsh than it argued for at Coker’s sentening
hearing was not only not prosecutorial misconduct, but was legitimate and acceptable prosecutorial
conduct.
2. Disclosure of Loss Amount
Coker next argues that the government violated Brady because the stipulation with Walsh
was material to her sentencing but not provided to her.2 The Supreme Court has held that in order
to be a Brady violation, “[t]he evidence at issue must be favorable to the accused, either because it
is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued. Strickler v. Greene, 527 U.S. 263,
281–82 (1999). Furthermore, the evidence must be “material to guilt or punishment” before
nondisclosure warrants reversal. United States v. Bencs, 28 F.3d 555, 560 (6th Cir. 1994). Evidence
is material for Brady purposes only “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley,
514 U.S. 419, 433–34 (1995).
A threshold problem with Coker’s Brady claim is that it may be barred by her guilty plea.
Prior cases have explicitly declined to decide whether and to what extent a federal defendant who
pleads guilty may raise a Brady claim. United States v. Ross, 245 F.3d 577, 583 (6th Cir. 2001); see
also United States v. Matthews, 168 F.3d 1234, 1242 (11th Cir. 1999) (declining to decide whether
guilty plea barred subsequent Brady claim because claim was meritless). We need not tackle this
question in Coker’s case because it is easier to assume that she may raise a Brady claim and then
reject the claim. She appears to view three pieces of information as Brady material: 1) that Walsh
paid taxes on his ill-gotten gains; 2) that the Guidelines might permit her to reduce the loss amount
based on the taxes paid; and 3) the government’s stipulation with Walsh to reduce his loss on based
on the taxes he paid.
Coker knew about the information in 1) before her sentencing hearing. Walsh’s plea
agreement, which was disclosed to Coker, and which she specifically referenced at her sentencing
2
One court of appeals has stated that “Brady violations do not constitute prosecutorial misconduct per se.”
United States v. Vinyard, 266 F.3d 320, 331 n.9 (4th Cir. 2001). The Supreme Court has since held that the “three
essential elements of a Brady prosecutorial misconduct claim” are: 1) evidence favorable to the accused; 2) suppression
of that evidence; and 3) prejudice. Banks v. Dretke, 540 U.S. 668, 691 (2004). These are the three elements of Brady
itself, Brady v. Maryland, 373 U.S. 83, 87–88 (1963), so we will assume that a Brady violation can be prosecutorial
misconduct.
No. 06-6504 United States v. Coker Page 7
hearing, stated that Walsh “was having to pay taxes on the entire amount of revenue received from
the CMOP.” Furthermore, Walsh discussed taxes with Coker while the fraud was still ongoing, and
later testified at Coker’s sentencing hearing that he raised his price “approximately a year after the
initial order because [he] was paying all the taxes.” Brady does not apply “when the information
is readily available to the defense from another source.” Matthews v. Ishee, 486 F.3d 883, 891 (6th
Cir. 2007). Here, Coker had access to the information about Walsh’s tax payments from multiple
other sources, and therefore this information is not covered by Brady.
The information in 2) is not Brady material because it is not a “fact,” but a potential legal
argument. Brady obligates the government to disclose “evidence favorable to the accused.” Brady,
373 U.S. at 87 (emphasis added). It does not obligate the government to give the defendant legal
theories. Compare Hickman v. Taylor, 329 U.S. 495, 516 (1947) (“[d]iscovery was hardly intended
to enable a learned profession to perform its functions either without wits or on wits borrowed from
the adversary.”).
As to 3), the stipulation with Walsh, Coker cannot even prove that the agreement existed at
the time of her sentencing hearing. Walsh’s plea agreement, signed before both Coker’s and
Walsh’s sentencing hearing, stipulates that the loss amount for Walsh’s crime was between $200,000
and $400,000. No specific figure is given. Coker points to Walsh’s counsel’s comments at Walsh’s
sentencing hearing as evidence that Walsh and the government had an unwritten agreement that they
failed to disclose, but the statements only indicate a general agreement and not a specific figure.
Walsh’s final loss amount was $263,000, a figure consistent with his plea agreement. Absent a
specific figure that contradicts the plea agreement, there is no proof of an unwritten agreement and
no Brady evidence to disclose.
Even if this isolated comment proved that a specific stipulation existed, that stipulation
would not meet Brady’s materiality requirement because it is not “reasonab[ly] probabl[e], had the
evidence been disclosed to the defense, that the result of the proceeding would have been different.”
Kyles, 514 U.S. at 433-34. The information would not have helped Coker make a collateral estoppel
argument because, as explained earlier, that doctrine does not apply in criminal cases. She says that
it would have been useful to impeach Walsh, but the record shows that her counsel used a copy of
Walsh’s plea agreement to impeach Walsh at the sentencing hearing, and that Walsh freely admitted
to cooperating with the government in order to get a lower sentence. This cross-examination
rendered any undisclosed stipulation irrelevant and immaterial. United States v. Soto-Beniquez, 356
F.3d 1, 40 (1st Cir. 2003) (no Brady violation when details of plea agreement were not disclosed
because cross-examination showed that witness was receiving favorable treatment from government
in return for testimony); United States v. Jones, 160 F.3d 473, 479 (8th Cir. 1998) (holding that
disclosure of plea agreement would not have led to different result because cross-examination
showed that witness was receiving favorable treatment from the government).
3. Calculation of Loss Amount
The PSR stated in paragraph 25 that the loss from the tape kickback scheme was $383,620,
the amount the government overpaid for the tape, because the tape could have been purchased “by”
other vendors for approximately $3.45 a roll. At the sentencing hearing, the government arguably
relied on a different theory, the price at which the tape could have been purchased “from” other
vendors. Walsh testified that he would have sold the tape to the government for between $3.40 and
$3.50 a roll but for the kickback scheme. Coker considers Walsh’s testimony an “eleventh-hour
shift” in the government’s calculation of loss theory and therefore prosecutorial misconduct. She
speculates that, if she had known that the government would rely on Walsh’s testimony, she could
have shown that Walsh could not have sold the tape at that price and made a profit.
No. 06-6504 United States v. Coker Page 8
Coker relies on cases suggesting that the PSR works like a pretrial stipulation in a civil case
and therefore the government cannot deviate from the PSR at the sentencing hearing. See, e.g.,
United States v. Butler, 41 F.3d 1435, 1444 (11th Cir. 1995). These cases do not help her; they
discuss only the facts contained in the PSR, not the theories by which the government seeks to prove
those facts. Butler explains that the PSR “facilitates the identification of factual and legal issues that
remain in dispute.” Ibid. (emphasis added). Coker identifies no case holding that the government
can prove a fact contained in the PSR only through the particular method identified in the PSR. If
this argument were accepted, it would force prosecutors to oversee the details of every PSR and
encourage them to cram the PSR with every possible theory on which the government might rely
at sentencing. We decline to adopt such an impractical rule.
Furthermore, any “shift in the government’s theory” could not have resulted in the
“prejudice” necessary for prosecutorial misconduct. Layne, 192 F.3d at 579. As the government
correctly points out, the PSR’s use of “by” other vendors instead of “from” other vendors appears
to be a clerical error. Logically, the price at which the tape could have been purchased by other
vendors cannot be relevant to the loss calculation; what matters is how much the government would
have had to pay to get the tape from other vendors. The very evidence Coker says the government
prevented her from introducing, Walsh’s costs of doing business, assumes that the PSR should read
“from” other vendors because Walsh’s costs are only relevant if the government is buying tape from
Walsh. Likewise, the only evidence Coker introduced before the government allegedly changed its
theory, an affidavit from the tape’s manufacturer claiming that he would not have sold the
government tape for $3.40 to $3.50 a roll, also assumes that the relevant price is the price at which
the government could have bought the tape from other vendors. When Coker herself relies on theory
to which the government “switched,” any “switch,” if it was impermissible, was not prejudicial.
III
Coker also objects to the manner in which her sentence was calculated, and asserts that she
suffered ineffective assistance of counsel. We decline to address the merits of either argument
because she has withdrawn her ineffective assistance claim and waived her sentencing objections.
A
In Coker’s first brief, her trial counsel, who continues to represent her on appeal (with
Coker’s apparent approval), argued that his own performance at trial was constitutionally deficient.
After the government pointed out that claims of ineffective assistance are not generally cognizable
on direct appeal, but must be brought later under 28 U.S.C. § 2255, this claim was withdrawn.
Therefore, we need not consider it further. United States v. Quinlan, 473 F.3d 273, 279 (6th Cir.
2007).
B
Coker’s plea agreement waived the right to appeal “the sentence imposed and the manner
in which it was determined” unless the court “depart[ed] upwards” from the sentencing guidelines.
Despite this provision, she complains that her sentence is too long.
A defendant may waive any right, including a constitutional right, in a plea agreement so
long as the waiver is knowing and voluntary. United States v. Calderon, 388 F.3d 197, 199 (6th Cir.
2004). As mentioned previously, Coker does not claim that her plea agreement was involuntary or
made in ignorance, nor could she given her discussion of the plea agreement with Judge Echols. We
have repeatedly enforced plea agreements waiving specific appellate rights under similar
circumstances, United States v. Sharp, 442 F.3d 946, 949, 952 (6th Cir. 2006); United States v.
McGilvery, 403 F.3d 361, 363 (6th Cir. 2005) (holding a waiver valid and “strongly encouraging”
No. 06-6504 United States v. Coker Page 9
the government to file a motion to dismiss the appeal in similar future cases to avoid wasting time
and resources), and we enforce the agreement before us today.
Contrary to Coker’s accusation, the district court did not depart upwards and open the door
to Coker’s appeal. Rather, the court adjusted the base offence level for her illegal conflict of
interest by finding that her other crimes were “relevant conduct.” After adjustments, her final
offense level was 23 and her guideline range was 46–57 months. Her sentence of 46 months is
within—indeed, it is at the bottom of—the guideline range and thus not an appealable upward
departure.
Despite Coker’s attempt to conflate the two, “upward adjustments” (also known as “sentence
enhancements”) and “upward departures” are two different things. The Guidelines Manual explains
that “adjustments” are applied first to calculate a defendant’s guideline range, U.S.S.G. § 1B1.1(c),
(e), while “departures” are given only at the end of the sentencing process and after all adjustments
have been applied. Id. at § 1B1.1(i). An “upward departure” is “a sentence greater than a sentence
that could be imposed under the applicable guidelines range,” id. at § 1B1.1 comment (n.1), while
“adjustments” are factored into the guidelines range. Id. at § 1B1.1(c). The Guidelines Manual
discusses “adjustments” and “departures” in different sections and recognizes that grounds for
granting one are not always grounds for granting the other. Compare U.S.S.G. § 3 (discussing
“Adjustments”) with U.S.S.G. § 5K (discussing “Departures”).
Our court has previously differentiated between sentence adjustments (enhancements) and
upward departures. United States v. Roberts, 64 F. App’x 473, 474 (6th Cir. 2003) (rejecting
defendant’s argument that he deserved a downward adjustment for acceptance of responsibility
while upholding district judge’s decision to depart upward based on defendant’s criminal history);
United States v. Wright, 119 F.3d 390, 393 (6th Cir. 1997) (holding that court did not abuse its
discretion by departing upwards where upward adjustment did not adequately reflect defendant’s
torture of victim). At least three other courts of appeal have held that a defendant who waives the
right to challenge her sentence unless the court “departs upward” cannot challenge the district
court’s calculation of sentence enhancements. United States v. Fogg, 409 F.3d 1022, 1025 (8th Cir.
2005) (holding appeal of enhancement under U.S.S.G. § 3A1.1(b) waived because it “was an
‘adjustment’ rather than an ‘upward departure.’”); United States v. Flint, 156 F. App’x 252 (11th
Cir. 2005) (holding that waiver of right to appeal sentence unless its was an upward departure barred
appeal of sentence within guidelines range); United States v. McMillion, 151 F. App’x 693, 694
(10th Cir. 2005) (holding that “sentencing ‘enhancements’ and sentencing ‘departures’ are not
synonymous” and that a “waiver for upward departures imposed by the court does not permit the
challenging of sentence enhancements.”). The Fifth Circuit declared an attempt to combine
“adjustments” and “departures” frivolous and sanctioned counsel for making the same argument
Coker is making. United States v. Gaitan, 171 F.3d 222, 224 (5th Cir. 1999) (per curiam).
We follow these decisions today and hold that by disputing the district court’s sentence
enhancements, Coker is appealing precisely what her plea agreement says that she cannot appeal.
We further note that Coker cannot pretend to be surprised at the government’s decision to enhance
her sentence through relevant conduct. Her plea agreement states explicitly that there was “no
agreement between the parties” as to whether her other crimes constitute relevant conduct. If she
wanted to appeal the finding of relevant conduct, she could have, and should have, insisted on
signing a different plea bargain. She did not; she signed a bargain waiving her right to appeal “the
manner in which [her sentence] was determined.” The government is entitled to the benefit of the
plea bargain.
No. 06-6504 United States v. Coker Page 10
IV
No prosecutorial misconduct occurred at Coker’s trial. She has withdrawn her ineffective
assistance claim and waived her sentencing claim. We therefore affirm the district court’s decision.