United States v. Clarence Cohen , 515 F. App'x 405 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0171n.06
No. 11-1960 FILED
Feb 14, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
CLARENCE HENRY COHEN, )
)
Defendant-Appellant. ) OPINION
_______________________________________)
Before: MOORE, SUTTON, and DONALD, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Clarence Cohen
(“Cohen”) pleaded guilty pursuant to a plea agreement to one count of conspiracy to possess with
intent to distribute and to distribute cocaine, in violation of 21 U.S.C. §§ 841, 846. The district court
held an evidentiary hearing to determine the quantity of drugs attributable to Cohen for sentencing
purposes and found Cohen responsible for at least four kilograms of crack cocaine and at least two
kilograms of powder cocaine. Notwithstanding an appeal-waiver provision in his plea agreement,
Cohen seeks review of the twenty-two-year sentence imposed by the district court. He argues that
the appeal-waiver provision should not be enforced, that the district court erred by failing to grant
his motion for a continuance from the evidentiary hearing, and that his sentence was procedurally
unreasonable. Regardless of whether the appeal-waiver in Cohen’s plea agreement is enforceable
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under the circumstances presented by this case, Cohen’s challenges to his sentence lack merit.
Accordingly, we AFFIRM the judgment of the district court.
I. BACKGROUND
Cohen pleaded guilty, pursuant to a written Rule 11 plea agreement, to one count of
conspiracy to possess with intent to distribute and to distribute in excess of one kilogram of cocaine,
in violation of 21 U.S.C. §§ 841, 846. See R. 356 (Plea Agmt. at 2) (Page ID #811). Cohen was
charged, along with fifteen other co-defendants, for his participation in a drug-distribution
conspiracy spanning from January 2008 to August 2009. R. 94 (First Super. Indict. at 1–2) (Page
ID #79–80).
On October 21, 2010, the district court held a hearing in which the district judge accepted
Cohen’s guilty plea. During the hearing, the district judge asked Cohen whether he had discussed
“this matter,” i.e., the charges against him, with his attorney, to which Cohen responded
affirmatively. R. 434 (Plea Hr’g Tr. at 7) (Page ID #1423). Cohen also confirmed that he signed the
plea agreement being submitted, see id. at 15 (Page ID #1431), but he was not asked whether he read
or discussed the agreement with his attorney. The transcript reflects the following discussion:
THE COURT: All right. Mr. Cohen, how do you plead to the charge of conspiracy
to possess with intent to distribute and to distribute cocaine?
THE DEFENDANT: Plead guilty.
...
THE COURT: Your attorney and the attorney for the government have submitted
to me a Rule 11 Plea Agreement which I’ve entered into the record as Exhibit 4. Did
you sign that agreement?
THE DEFENDANT: Yes, I did.
THE COURT: And is that agreement the basis on which you’re pleading guilty here
today?
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THE DEFENDANT: Yes.
Id. at 14–15 (Page ID #1430–31). The district court then asked the prosecutor to recite the terms of
the plea agreement. The prosecutor stated, in part, “Paragraph 7 of the Rule 11 Plea Agreement
indicates—includes a waiver of appeal which indicates that the defendant waives any right he may
have to appeal his conviction in this matter.” Id. at 16 (Page ID #1432). The district court asked
Cohen, “[D]o you understand and agree with the terms of the plea agreement stated by [the
prosecutor]?,” to which Cohen responded, “Yes.” Id. at 17 (Page ID #1433). The district judge then
accepted Cohen’s guilty plea, and counsel did not raise an objection regarding the district court’s
compliance with Federal Rule of Criminal Procedure 11. Id. at 20–21 (Page ID #1436–37).
Cohen’s plea agreement contained an appeal-waiver provision that was broader than the term
recited by the prosecutor. The waiver provision not only contained a waiver of the right to appeal
Cohen’s conviction, but also included a waiver of the right to appeal his sentence, except in certain
specified circumstances. R. 356 (Plea Agmt. at 7) (Page ID #816). The plea agreement further
called for the district court to determine the appropriate sentence and Sentencing Guideline range
after making determinations regarding relevant conduct and Cohen’s leadership role in the alleged
conspiracy. Id. at 2–3 (Page ID #811–12).
The district court subsequently held an evidentiary hearing on January 19, 2011, to determine
the quantity of drugs attributable to Cohen. On the day of the hearing, the Government provided
defense counsel with a brief summarizing the evidence that it would present during the hearing.
R. 435 (Evid. Hr’g Tr. at 3–4) (Page ID #1442–43). The brief indicated that two of Cohen’s co-
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defendants, Salina Carter (“Carter”) and Shawntea Brown (“Brown”), would testify, and it included
summaries of their proffer interviews. The submission also included a proffer statement from Gary
Bryant, an individual who purportedly aided Cohen in cooking crack cocaine. The Government
planned to call ATF Special Agent Terry Schimke (“Schimke”) to testify regarding Bryant’s
statements about Cohen’s possession and distribution of cocaine. Further, the Government’s
submission contained summaries of several inculpatory telephone calls which had been intercepted
previously during the investigation of the conspiracy. Defense counsel asked for a one-week
continuance of the hearing, so that he would have adequate time to review the information contained
in the Government’s brief, and so that he could prepare to cross-examine the witnesses. See id. The
district court denied the motion for a continuance, stating that neither Brown nor Carter wished to
speak with Cohen’s counsel, and that because the witnesses were already at the court and were
prepared to testify, the district judge would proceed as planned. Id. at 5 (Page ID #1444).
Carter testified that she delivered packages of cocaine to Cohen several times, and that, on
more than one occasion, she saw Cohen cooking powder cocaine into crack cocaine. See id. at 9–14
(Page ID #1448–53). Carter’s proffer statement, which she testified to the accuracy of, see id. at 19(Page ID #1458), indicated that on two occasions when she delivered cocaine for Cohen, it was in
the amount of a half-kilogram. When Brown took the witness stand, she stated that she would be
willing to talk with defense counsel. Id. at 45 (Page ID #1484). When this information was
revealed, the district court permitted a continuance of the hearing to give defense counsel an
opportunity to speak with Brown with her attorney present, and allowed Cohen to re-call Brown at
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a later date to testify. See id. at 46–48 (Page ID #1485–87). Cohen chose not to re-call Brown. See
R. 387 (Dist. Ct. Order) (Page ID #1027). During direct examination, Brown stated that she
witnessed Cohen cooking powder cocaine into crack cocaine twice in her apartment. R. 435 (Evid.
Hr’g Tr. at 37–41) (Page ID #1476–80). Brown also testified that Cohen directed her to pick up
drugs. Id. at 43 (Page ID #1482). Brown’s proffer statement, which she testified to the accuracy of,
see id. at 44 (Page ID #1483), stated that she transported at least two one-kilogram packages of
cocaine for Cohen.
Agent Schimke provided testimony summarizing a proffer interview with Bryant. Schimke
relayed that Bryant stated that he had cooked “around four kilograms” of crack cocaine for Cohen.
Id. at 65 (Page ID #1504). He also testified that, based on his investigation of the drug-distribution
scheme, Cohen was involved in trafficking “from two kilograms a month up to 30-plus kilograms
per month” of crack cocaine. Id. at 72 (Page ID #1511). The Government also played several
intercepted telephone conversations for the district court in which Cohen was heard discussing
selling crack cocaine during June 2009.
The district court found, based on the statements of Carter, Brown, and Bryant, as well as the
recorded telephone conversations, that Cohen was responsible for at least four kilograms of crack
cocaine and two kilograms of powder cocaine. R. 392 (Dist. Ct. Order at 1–2) (Page ID #1171–72).
The court also found that Cohen maintained a leadership role in the cocaine distribution operation.
Id. As a result, the district judge sentenced Cohen to twenty-two years of imprisonment followed
by four years of supervised release. R. 460 (Judgment at 2–3) (Page ID #1657–58). Cohen now
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appeals his sentence. R. 458 (Notice of Appeal) (Page ID #1654). This court has jurisdiction
pursuant to 28 U.S.C. § 1291.
II. ANALYSIS
A. Waiver of Appeal
The first issue we must address is whether the appeal-waiver provision in Cohen’s plea
agreement is enforceable. Cohen argues that his appeal-waiver is not enforceable because at the plea
colloquy the district judge violated Rule 11 by not explaining fully the scope of the appeal-waiver
provision in the plea agreement. A plea agreement is valid and enforceable only if the defendant
entered into it knowingly and voluntarily. United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003).
We review de novo “‘the question of whether a defendant waived his right to appeal his sentence in
a valid plea agreement.’” United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005) (quoting
Smith, 344 F.3d at 483). Because Cohen did not object before the district court regarding a Rule 11
violation, plain-error review applies. See United States v. Vonn, 535 U.S. 55, 59 (2002); Murdock,
398 F.3d at 496. Under the plain-error standard, “[t]he defendant ‘must show that there is (1) error,
(2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate
court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects
the fairness, integrity, or reputation of judicial proceedings.” United States v. Lalonde, 509 F.3d 750,
757–58 (6th Cir. 2007) (quoting Murdock, 398 F.3d at 496); see United States v. Robinson, 455 F.3d
602, 610 (6th Cir. 2006).
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Rule 11 states that the district court “must inform the defendant of, and determine that the
defendant understands, . . . the terms of any plea-agreement provision waiving the right to appeal.”
Fed. R. Crim. P. 11(b)(1)(N). A failure of the district court to comply with this explicit requirement
is “error that [i]s plain.” Murdock, 398 F.3d at 497. In this case, like in Murdock, the district court
failed to comply with the explicit mandate of Rule 11 by not directly addressing Cohen regarding
the full scope of the appeal-waiver provision, and by not determining whether Cohen understood the
provision. Accordingly, the district court committed error, and the error was plain. See id.Nonetheless, this kind of plain error does not always warrant reversal, because the failure of
a district court to abide by Rule 11’s requirements does not necessarily affect the defendant’s
substantial rights. In order to determine whether the error here affected Cohen’s substantial rights,
we ask whether there was a “functional substitute” for the “key safeguard” in Rule 11(b)(1)(N) that
is sufficient to show that Cohen’s waiver of the right to appeal was knowing and voluntary.
Murdock, 398 F.3d at 497; see Robinson, 455 F.3d at 610. Functional substitutes have been found
when, for example, the prosecutor adequately explains the waiver provision, or when the defendant
states that he read and understood the terms of the plea agreement and discussed it with his attorney.
See, e.g., Robinson, 455 F.3d at 610; United States v. Sharp, 442 F.3d 946, 950–52 (6th Cir. 2006);
United States v. Wilson, 438 F.3d 672, 674 (6th Cir. 2006).
We note that the prosecutor’s apparent mistake in failing to read correctly the scope of the
appeal-waiver weighs against a finding that the defendant’s waiver was knowing and voluntary. This
court, in an unpublished opinion, has refused to enforce an appeal-waiver when the district court
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misstated the waiver provision in the plea agreement, stating that when “the court’s misstatement
comes before the plea is accepted and in circumstances that cause the defendant to misunderstand
the terms based on the court’s explanation, the defendant cannot be said to have knowingly and
voluntarily waived the right[]” to appeal. Sarlog v. United States, 422 F. App’x 399, 403 (6th Cir.
2011). Other courts of appeals have reached the same conclusion. See, e.g., United States v.
Saferstein, 673 F.3d 237, 242–43 (3d Cir. 2012) (narrowing the construction of an appeal-waiver
provision in light of the district court’s mischaracterization of the plea agreement’s provisions during
the plea colloquy); United States v. Manigan, 592 F.3d 621, 628 (4th Cir. 2010) (refusing to enforce
an appeal-waiver in a plea agreement when the district court, during the plea colloquy, did not
specifically mention the appeal-waiver provision and mistakenly told the defendant that he had a
right to appeal); United States v. Wilken, 498 F.3d 1160, 1167–69 (10th Cir. 2007) (refusing to
enforce an appeal-waiver when the district court misstated the scope of the waiver at the plea
hearing); United States v. Bushert, 997 F.2d 1343, 1352–53 (11th Cir. 1993) (refusing to enforce an
appeal-waiver when the district court “did not clearly convey to [the defendant] that he was giving
up his right to appeal under most circumstances”).
Whether functional substitutes for the Rule 11 safeguards were present in this case is a close
question. On the one hand, the appeal-waiver provision was misstated by the prosecutor, and Cohen
confirmed only that he agreed to and understood the provision as explained by the prosecutor. See
R. 434 (Plea Hr’g Tr. at 17) (Page ID #1433). Especially given that we narrowly construe plea
agreements against the government, see United States v. Caruthers, 458 F.3d 459, 470 (6th Cir.
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2006), the prosecutor’s failure to state or explain the full scope of the waiver counsels against
enforcing the parts of the waiver not discussed in open court. Cohen’s signature on the plea
agreement is not alone sufficient to negate the incompleteness of the explanation at the plea hearing
or to demonstrate that the waiver of the right to appeal the sentence was knowing and voluntary. See
Murdock, 398 F.3d at 498 (“In the absence of a discussion of the appellate waiver provision in open
court, we will not rely on a defendant’s self-assessment of his understanding of a plea agreement in
determining the knowingness of that plea.”).
On the other hand, whether the district court confirmed that Cohen understood the full plea
agreement and reviewed it with his attorney, which could constitute functional substitutes for
compliance with Rule 11(b)(1)(N), is not clear from the parties’ arguments. Our review of the
transcript indicates that Cohen did not testify that he read or understood the written plea agreement,
or that he reviewed it with his attorney. He was asked only whether he signed the written agreement,
and whether he understood and agreed with the terms of the plea agreement as stated by the
prosecutor—terms that did not include the waiver of the right to appeal the sentence. R. 434 (Plea
Hearing Tr. at 15, 17) (Page ID #1431, 1433). Cohen makes conflicting assertions on this point:
in one part of his brief, he states that at the plea hearing he “acknowledged that he discussed the Rule
11 Plea Agreement with counsel,” see Appellant Br. at 4, but later argues that “the record discloses
that the district court did not ascertain if Mr. Cohen reviewed and discussed the specific provisions
of the Rule 11 Agreement with his counsel, but only asked him if he signed the agreement.” Id. at
19–20. The Government asserts only that Cohen stated that he “discussed the guilty plea with
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counsel.” Appellee Br. at 6. Further, there is some indication that Cohen requested that his counsel
withdraw because counsel failed to explain fully the scope of the appeal-waiver, which is evidence
that Cohen may not have understood the scope of the appeal-waiver. See R. 473 (Hr’g Tr., Mot. to
Withdraw as Counsel at 4) (Page ID #1763). Ultimately, we need not decide the question of whether
Cohen’s waiver of his right to appeal was knowing and voluntary, because even assuming that the
appeal-waiver is not enforceable, Cohen’s challenges to his sentence fail, as we explain below. See
Caruthers, 458 F.3d at 472 (assuming an appeal-waiver was unenforceable and concluding that the
defendant’s challenges to his sentence failed on the merits).
B. Motion for a Continuance
Cohen argues that the district court erred by denying the continuance that he requested prior
to the start of the evidentiary hearing. District courts have discretion in determining when to grant
motions for continuances. See Broom v. Mitchell, 441 F.3d 392, 414 (6th Cir. 2006) (quoting Ungar
v. Sarafite, 376 U.S. 575, 589 (1964)). Accordingly, we review for abuse of discretion the denial
of a motion for a continuance. United States v. Garner, 507 F.3d 399, 408 (6th Cir. 2007). “To
demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to
his defense.” Id.; see Broom, 441 F.3d at 414. Actual prejudice can be established if the defendant
shows “that a continuance would have made relevant witnesses available or added something to the
defense.” United States v. King, 127 F.3d 483, 487 (6th Cir. 1997).
There was no abuse of discretion in the district court’s denial of Cohen’s motion to continue
the evidentiary hearing. Cohen argues that he was prejudiced by a lack of time to review four items
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contained in the Government’s brief, which was received by defense counsel on the day of the
hearing, and that, as a result, defense counsel could not adequately prepare for the hearing. See
Appellant Br. at 25. The four items that defense counsel purportedly did not have time to review
were: (i) “detailed summaries of 25 intercepted telephone conversations”; (ii) the proffer statement
of Carter; (iii) the proffer statement of Brown; and (iv) the proffer statement by Bryant, to be relayed
to the court through Schimke. Id. at 24–25. As a preliminary matter, contrary to Cohen’s
contentions, the district court’s denial of the motion for a continuance did not violate Federal Rule
of Criminal Procedure 32. Rule 32(i)(2) incorporates Rule 26.2’s provisions regarding witness
statements and testimony during sentencing proceedings. See Fed. R. Crim. P. 32(i)(2). In turn,
Rule 26.2 provides that prior statements of testifying witnesses need not be produced until after the
testimony, and it further provides that the court, in its discretion, “may recess the proceedings to
allow time for a party to examine the statement and prepare for its use.” Fed. R. Crim. P. 26.2(a),
(d) (emphasis added). The Government provided the proffer statements just prior to the testimony
of Brown and Carter, and the district court was not required by Rule 26.2(d) to recess the
proceedings prior to the hearing. Further, Cohen was permitted to review the statements and submit
comments through a Sentencing Memorandum following the evidentiary hearing. See R. 387 (Dist.
Ct. Order) (Page ID #1027). We thus do not see how the district court proceedings violated Rule
32.
Cohen’s argument that his counsel was unfairly prejudiced by not receiving the summaries
of the intercepted telephone calls lacks merit because Cohen admits that he received copies of all of
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the intercepted calls well in advance of the hearing. See Appellant Reply Br. at 7. Accordingly,
Cohen and his counsel had an adequate opportunity to review the calls and anticipate particularly
damaging calls that the Government likely would bring to the district court’s attention. Similarly,
Cohen admits that prior to the evidentiary hearing, he had a copy of a redacted report regarding
Carter’s testimony. See Appellant Reply Br. at 7. Carter also testified that, as was discussed prior
to the hearing, she did not want to speak with Cohen’s counsel. R. 435 (Sent. Hr’g Tr. at 21) (Page
ID #1460). Cohen’s counsel would not have been able to interview the witness even if the district
court had granted the continuance, and Cohen thus was not prejudiced regarding inadequate time to
prepare for Carter’s testimony.
With respect to Brown’s testimony, upon learning that Brown was willing to speak with
Cohen’s counsel, the district judge continued the hearing to permit Cohen’s counsel to speak with
Brown with her counsel present, and then gave Cohen the opportunity to re-call Brown to testify.
See id. at 46–48 (Page ID #1485–87). Cohen chose not to do so. See R. 387 (Dist. Ct. Order) (Page
ID #1027). Thus, Cohen was granted the relief requested with respect to Brown.
Finally, Cohen has not demonstrated that he was prejudiced because his counsel did not have
adequate time to review Bryant’s proffer statement. Cohen does not explain how a continuance
would have aided his strategy regarding Bryant’s statements, other than to argue that he would have
been able to “properly review and comment on Mr. Bryant’s proffer.” Appellant Br. at 29. Cohen’s
counsel was able to bring out on cross-examination that Bryant may have been biased against Cohen,
a point which Cohen was able to emphasize further in his supplemental sentencing memorandum.
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See R. 455 (Def.’s Supp. Sentencing Memo. at 10–11) (Page ID #1638–39). The district court thus
did give Cohen a “reasonable opportunity” to review and comment on Bryant’s statement, as
required by Rule 32(i)(1)(B). Because Cohen has not demonstrated actual prejudice, we hold that
there was no reversible error in the district court’s denial of Cohen’s motion for a continuance.
C. Procedural Reasonableness of Cohen’s Sentence
Cohen argues that his sentence was procedurally unreasonable. A district court’s sentencing
determinations are reviewed for reasonableness under a deferential abuse-of-discretion standard.
United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). “A district court necessarily abuses its
sentencing discretion if it ‘commit[s] [a] significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, . . . [or] selecting a sentence based on clearly erroneous
facts.” Id. at 579 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). The district court’s factual
findings at sentencing, including findings of drug quantity, are reviewed for clear error. United
States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008). Clear error occurs if, “having reviewed all of
the evidence, we are left with the definite and firm conviction that a mistake has been made.” Id.
at 569. An estimate is permissible as a finding of fact for drug quantity, but the finding must be
supported by a preponderance of the evidence. See United States v. Walton, 908 F.2d 1289, 1302
(6th Cir. 1990); United States v. Anderson, 526 F.3d 319, 326 (6th Cir. 2008); see also United States
v. Hernandez, 227 F.3d 686, 699 (6th Cir. 2000) (“District courts may approximate the quantity of
drugs for sentencing purposes based upon circumstantial evidence as long as they err on the side of
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caution.”). Finally, de novo review applies to the district court’s “application and interpretation of
the Guidelines.” Jeross, 521 F.3d at 569 (citation omitted).
We find no clear error in the district court’s drug-quantity determination that Cohen was
responsible for at least four kilograms of crack cocaine and at least two kilograms of powder cocaine.
Schimke’s testimony summarizing his interview with Bryant indicated that Bryant cooked around
four kilograms of crack cocaine for Cohen. R. 435 (Evid. Hr’g Tr. at 65) (Page ID #1504). It was
not clear error for the district court to rely on Schimke’s hearsay testimony regarding Bryant’s proffer
interview. Hearsay evidence is generally admissible in sentencing proceedings, because the Federal
Rules of Evidence do not apply. See Fed. R. Evid. 1101(d)(3); United States v. Katzopoulos, 437
F.3d 569, 576 (6th Cir. 2006). As long as the admitted hearsay testimony has “some minimal
indicium of reliability beyond mere allegation,” a district court may rely on the testimony without
violating due process. United States v. Silverman, 976 F.2d 1502, 1504, 1506 (6th Cir. 1992) (en
banc) (internal quotation marks omitted); see also U.S.S.G. § 6A1.3(a) (“In resolving any dispute
concerning a factor important to the sentencing determination, the court may consider relevant
information without regard to its admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability to support its probable accuracy.”).
“This standard presents a relatively low hurdle,” United States v. Manis, 344 F. App’x 160, 165 (6th
Cir. 2009) (internal quotation marks omitted), and in this case there was sufficient corroboration to
permit the district court to rely on Schimke’s testimony about Bryant’s statements. See United States
v. Hunt, 487 F.3d 347, 353 (6th Cir. 2007) (explaining that corroborating evidence can provide
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sufficient indicia of reliability); see also United States v. Hankton, 432 F.3d 779, 790–91 (7th Cir.
2005) (holding that the district court did not err in relying on hearsay testimony of a law-enforcement
agent, when the district court found the agent to be a “credible witness,” and when portions of the
agent’s testimony were corroborated by other evidence). For instance, Brown testified that Bryant
was present at least once in her apartment cooking crack cocaine for Cohen. R. 435 (Evid. Hr’g Tr.
at 38) (Page ID #1477). The intercepted telephone calls also corroborated Schimke’s testimony. The
district court did not commit clear error in relying on Schimke’s testimony regarding interviews
conducted with co-conspirators. See United States v. Walker, 399 F. App’x 75, 83 (6th Cir. 2010)
(permitting reliance on law-enforcement agent’s testimony regarding interviews with witnesses
concerning drug quantity).
Carter and Brown’s testimony also supports the district court’s findings. Carter testified that
she took two trips to Ohio to deliver drugs to Cohen, and that she witnessed on various occasions
Cohen cooking powder cocaine into crack cocaine. The drug amount that Carter referred to was
approximated to be one-half kilogram each time. See R. 390 (Gov’t Sent. Memo. at 11–12) (Page
ID #1058–59). Brown also testified to the accuracy of her proffer statement, see id. at 44, which
stated that she transported cocaine for Cohen multiple times in the amount of at least two kilograms
of cocaine. The district court may rely on information provided in co-defendants’ proffer statements,
so long as “it is not obvious that the statements were untruthful.” United States v. Milan, 398 F.3d
445, 457 (6th Cir. 2005). Further, numerous recordings of telephone calls, as well as Cohen’s guilty
plea, corroborated the witnesses’ testimony that Cohen was involved in the sale and distribution of
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powder and crack cocaine during the time of the alleged conspiracy. See United States v. Bates, 315
F. App’x 591, 594–95 (6th Cir. 2009).
Cohen’s argument that the district court erroneously attributed to him conduct that occurred
in 1999-2000, see Appellant Br. at 45–46, well outside the scope of the charged conspiracy, is not
supported by the record. In this case, there is no indication that the testimony regarding events
occurring in 1999-2000 was part of the basis on which the district court made its drug-quantity
findings. See Gov’t Evid. Br. (filed Jan. 19, 2011). Although Carter testified that she saw Cohen
cooking crack around 2000, this event was not directly relied upon by the district court. Thus,
although it is true that there are limits on the extent to which uncharged conduct may be considered
relevant conduct, see United States v. Gill, 348 F.3d 147, 155 (6th Cir. 2003) (“[S]eparate incidents
of possession with intent to distribute can be included within the scope of relevant conduct for the
purpose of determining drug quantity when they qualify as part of a ‘common scheme or plan’ or
constitute the ‘same course of conduct.’” (quoting U.S.S.G. § 1B1.3)), those limitations are not a
concern in Cohen’s case. We reject Cohen’s contention that his sentence reflects conduct that
occurred years before the charged conspiracy.
In sum, we hold that the district court’s findings of fact regarding the quantity of drugs
attributable to Cohen for sentencing purposes were not clearly erroneous. Cohen’s sentence was thus
procedurally reasonable.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
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