18-654-cr
United States v. Coolbaugh

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

               At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 15th day of March, two thousand nineteen.

PRESENT:
                  ROBERT A. KATZMANN,
                       Chief Judge,
                  DEBRA ANN LIVINGSTON,
                  CHRISTOPHER F. DRONEY,
                       Circuit Judges.


UNITED STATES OF AMERICA,

                             Appellee,

                  v.                                                     No. 18-654-cr

KEVIN COOLBAUGH,

                             Defendant-Appellant.


 For Defendant-Appellant:                               Elizabeth M. Johnson, Law Offices of
                                                        Elizabeth M. Johnson, New York, NY.

 For Appellee:                                          Miroslav Lovric, Carina H. Schoenberger,
                                                        Assistant United States Attorneys, for Grant
                                                        C. Jaquith, United States Attorney for the
                                                        Northern District of New York, Syracuse,
                                                        NY.

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       Appeal from a judgment of the United States District Court for the Northern District of

New York (McAvoy, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Kevin Coolbaugh appeals from a judgment of the United States District Court for the

Northern District of New York (McAvoy, J.) entered March 6, 2018 sentencing him principally to

36 months’ imprisonment for violating the terms of his supervised release. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

       Coolbaugh argues that his sentence is procedurally unreasonable because the district court

incorrectly determined that his New York State conviction for unlawful manufacture of

methamphetamine in the third degree in violation of N.Y. Penal Law § 220.73(1) constituted a

Grade A violation of the terms of his supervised release pursuant to § 7B1.1(a)(1) of the United

States Sentencing Guidelines (the “Guidelines” or “U.S.S.G.”). According to Coolbaugh, the

district court did not make any findings as to his actual conduct but merely concluded that his New

York offense constituted “manufacture of a controlled substance” as defined by U.S.S.G.

§4B1.2(b) even though N.Y. Penal Law § 220.73(1) can be violated by someone who possessed

no controlled substance as defined under federal law.

       We need not reach the merits of Coolbaugh’s argument because Coolbaugh waived it by

affirmatively representing to the district court that his underlying offense conduct constituted a

Grade A violation under the sentencing guidelines. See App. at 61 (informing the district court that

the “conduct that [Coolbaugh] admitted to in county court encompasses allegation number one,

and that [Coolbaugh] will be prepared to admit to allegation number one here as being that he

admitted he committed that conduct, same as he admitted in county court, and that … then the



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Court would be free to sentence him under an A violation”); United States v. Spruill, 808 F.3d 585,

597 (2d Cir. 2015) (waiver exists where a “defendant, through counsel, acted intentionally in

pursuing, or not pursuing, a particular course of action”). Coolbaugh cannot now argue that the

district court should have adduced further evidence regarding his conduct to determine whether or

not his conduct qualified as a Grade A violation.

       We have considered all of Coolbaugh’s remaining contentions on appeal and have found

in them no basis for reversal. Accordingly, the judgment of the district court is AFFIRMED.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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