FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. John A. Woodcock, Jr., U.S. District
L. Fishman on brief for appellant.
B. Frank, United States Attorney, and Benjamin M. Block,
Assistant United States Attorney, on brief for appellee.
Howard, Chief Judge, Torruella and Selya, Circuit Judges.
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.
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
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 stipulation, and the transcripts of the sentencing
hearings. See United States v.
D'Angelo, 802 F.3d 205, 206 (1st Cir. 2015).
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
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 state charge
of possession of narcotics with intent to sell. See
Conn. Gen. Stat. § 21a-277(a).
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.
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 that he had brought a woman from
Maine to Connecticut for the purpose of engaging in
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 ...