                       NOT RECOMMENDED FOR PUBLICATION

                                          No. 17-5910

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                 FILED
 UNITED STATES OF AMERICA,                              )                   Jun 06, 2018
                                                        )               DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,                             )
                                                        )
                                                             ON APPEAL FROM THE
                v.                                      )
                                                             UNITED STATES DISTRICT
                                                        )
                                                             COURT FOR THE WESTERN
 LOUIS CHARLTON,                                        )
                                                             DISTRICT OF KENTUCKY
                                                        )
        Defendant-Appellant.                            )
                                                        )



BEFORE: BOGGS and GRIFFIN, Circuit Judges; HOOD, District Judge.*1

       GRIFFIN, Circuit Judge.

       After defendant Louis Charlton was caught selling drugs out of his house, a jury convicted

him of numerous drug and firearm crimes. On appeal, he requests that we vacate his convictions

and sentence, arguing that the government promised him immunity and that he deserves a lower

sentence because he accepted responsibility for his actions. We disagree, and affirm.


                                               I.

       In November 2015, Charlton sold crack cocaine to a police informant. Because the sale

took place in Charlton’s house, the police obtained a warrant and searched the home. During the

search, they found two pistols, 50 grams of powder cocaine, a small amount of crack cocaine,

63 grams of marijuana, more than $90,000 in cash, and other gun and drug paraphernalia.


      *The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 17-5910
United States v. Charlton


       Thereafter, Charlton was arrested and advised of his Miranda rights. He waived them, and

admitted that the drugs and guns were his. He also said he was worried about his family’s safety,

and in response a detective said that she would watch out for his family and would give her phone

number to his wife.

       Police then took Charlton to the station for a second interview, which they recorded.

Defendant again admitted to selling drugs. He also gave up information about others involved in

drug trafficking. And a detective said that if police decided to work with Charlton, she would try

to get him released on bond.

       A few days later, police spoke with Charlton a third time. Defendant again waived his

Miranda rights, and police again recorded the interview. Charlton provided much of the same

information he had given during his previous interviews. And police reiterated that they would

try to help him, but made no specific promises.

       As it turned out, this wasn’t defendant’s first offense. In 2011, and again in January 2015,

Charlton had been caught selling drugs and had served as a police informant. Both times he entered

into cooperation agreements. The first time, his felony charges were reduced to a misdemeanor.

The second time, he was never charged with a crime—he even got to keep his drug money.

       But this time was different. Police decided not to use him as an informant because his

information was stale. Even though they talked with him about his potential cooperation, and

although he claims there was an oral agreement, they never offered him a written cooperation

agreement.

       Instead, the government charged Charlton with seven crimes: Distributing crack cocaine,

a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 1); Carrying a firearm during and in

relation to a drug-trafficking crime, a violation of 18 U.S.C. § 924(c)(1)(A) (Count 2); Possession

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United States v. Charlton


with the intent to distribute controlled substances (cocaine, marijuana, and crack cocaine,

respectively), violations of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts 3, 4, and 5); Possessing

firearms in furtherance of drug trafficking crimes, a violation of 18 U.S.C. § 924(c)(1)(A) (Count

6); and Possessing firearms as a felon, a violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) (Count

7).

       Charlton moved to dismiss the indictment, or in the alternative to suppress his confession,

arguing that the government had promised him immunity and that the promise had coerced his

confession. After holding an evidentiary hearing, the district court ruled that the government had

never promised Charlton immunity and that he confessed voluntarily. So the district court denied

the motion.

       Before trial, the government moved to exclude arguments regarding jury nullification. In

response, Charlton advised the district court that he planned to ask the jury to acquit him on the

basis of the alleged immunity agreement. As part of that strategy, he wanted the district court to

issue a modified entrapment-by-estoppel jury instruction. The district court ruled that Charlton’s

proposed defense was not viable, and accordingly granted the government’s motion (thus rejecting

Charlton’s proposed instruction).

       The jury ultimately convicted Charlton on all counts except the two armed-drug-trafficker

offenses (Counts 2 and 6). At sentencing, Charlton moved for a reduction to his offense level

because of acceptance of responsibility. The district court denied the motion on the grounds that

Charlton had not demonstrated acceptance of responsibility.




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United States v. Charlton


                                                II.

       Charlton now challenges the district court’s refusal to:       (1) dismiss the indictment;

(2) suppress his confession; (3) issue a modified entrapment-by-estoppel jury instruction; and

(4) reduce his offense level. We address each in turn.


                                                A.

       Charlton first appeals the district court’s denial of his motion to dismiss the indictment,

arguing that the government promised him immunity. The district court denied the motion on the

grounds that there was no immunity agreement. We review that factual finding for clear error.

See United States v. Orlando, 281 F.3d 586, 593 (6th Cir. 2002). To reverse, we must have a

definite and firm conviction that the district court made a mistake. Id.

       Charlton claims that the government granted him immunity in two ways.              First, he

contends, the government granted him immunity when a detective told him: “[W]hen you get out,

call me, and I’m going to give you your phone and everything back.” And second, he argues, his

two prior cooperation agreements required him to repeatedly give officers information, and thus

provided immunity when he spoke with officers after they searched his house.

       Neither argument has merit. After reviewing the record, we find no promise of immunity.

Although a detective did discuss what she would do “when” Charlton got out (which implied that

he would get out), earlier in the conversation the same detective made clear that she would “try”

to get Charlton out. Other officers made similar, non-committal statements—they said they would

do what they could to help Charlton, but never promised him immunity.

       Second, Charlton’s contention that his prior cooperation agreements granted him immunity

for future crimes lacks any basis in logic or fact. He admits that those agreements warned that the


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United States v. Charlton


government might prosecute him for future crimes. Indeed, the January 2015 agreement went

further by stating:

       ATF cannot promise or agree to any immunity from federal prosecution or specific
       consideration, since that benefit lies solely with the United States Attorney’s Office
       and the court.

So, although the government ultimately never prosecuted Charlton for the crimes he allegedly

committed in January 2015, his cooperation agreement never promised him immunity for those

crimes—much less for future crimes. In short, the district court did not commit clear error in

finding that no immunity agreement existed for Charlton’s crimes in this case.


                                                B.

       Charlton also challenges the district court’s refusal to suppress his confession, arguing that

police coerced him to confess involuntarily through promises of immunity and protection for his

family. We review the district court’s factual findings for clear error and its legal conclusions de

novo. United States v. Meyer, 359 F.3d 820, 824 (6th Cir. 2004). To determine whether police

coerced a confession, we ask whether (1) what police did was objectively coercive; (2) the coercion

was sufficient to overpower the defendant’s will; and (3) the alleged misconduct was the crucial

motivating factor in the defendant’s decision to confess. See United States v. Binford, 818 F.3d

261, 271 (6th Cir. 2016).

       Charlton contends that the immunity agreement and the offers to protect his family “make

it clear” that the officers’ “manipulative and coercive behavior” caused him to confess. Although

he mentions the three-part test we apply to claims of coerced confessions, he never explains why

what happened here meets any of those parts.




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United States v. Charlton


       Charlton’s argument fails because the officers’ conduct was not objectively coercive.

Although promises of leniency can be objectively coercive, see United States v. Johnson, 351 F.3d

254, 261 (6th Cir. 2003), as explained above, the district court did not clearly err by finding that

officers never promised Charlton leniency. Instead, they simply offered (1) to try to help him if

they could and (2) to try to protect his family. Charlton has identified no case holding that such

non-committal statements are objectively coercive, and we have found no authority saying as

much. To “coerce” means to “compel by force or threat.” Black’s Law Dictionary 315 (10th ed.

2014). Here, the officers’ offers to attempt to help Charlton neither forced him to confess nor

threatened him if he didn’t. Coercion is not the same as persuasion, and what the officers did fell

into the latter category, not the former. Charlton confessed voluntarily.


                                                  C.

       Next, Charlton challenges the district court’s refusal to give his requested, modified

entrapment-by-estoppel instruction. We review the district court’s decision for an abuse of

discretion. United States v. Geisen, 612 F.3d 471, 485 (6th Cir. 2010). And we will reverse only

if (1) the rejected instruction correctly stated the law; (2) other instructions did not cover the same

information; and (3) the rejection impaired Charlton’s theory of the case. See United States v.

Newcomb, 6 F.3d 1129, 1132 (6th Cir. 1993).

       Charlton contends that whether he had an immunity agreement was a factual issue he

should have been able to present to the jury. He argues that he had a viable defense if the

government promised him immunity, he relied on that promise, his reliance was reasonable, and

his reliance made his conviction unfair. And he submits that he presented sufficient evidence for

a jury to find his defense persuasive.


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United States v. Charlton


       The district court correctly rejected Charlton’s proposed instruction because it lacked

evidentiary support. See United States v. Morgan, 216 F.3d 557, 566 (6th Cir. 2000). As discussed

above, no officer ever promised him immunity. And his prior cooperation agreements never

promised him immunity, either—not even for the crimes they related to. Instead, they stated

explicitly that the government might prosecute him for future crimes. Charlton’s claim fails.


                                                 D.

       Finally, Charlton challenges the district court’s refusal to reduce his offense level for

acceptance of responsibility. For us to reverse, Charlton must show by a preponderance of the

evidence that a reduction was warranted. See United States v. Denson, 728 F.3d 603, 614 (6th Cir.

2013). When reviewing the district court’s decision, we give great deference to factual findings;

we will not disturb them unless they are clearly erroneous. United States v. Hollis, 823 F.3d 1045,

1047 (6th Cir. 2016) (per curiam).

       Charlton argues that he is entitled to the reduction because he (1) admitted that he

committed the crimes and (2) only went to trial to assert a legal defense to his guilt: the alleged

immunity agreement.

       We reject this argument. When a defendant goes to trial, a district court determines

whether the acceptance-of-responsibility reduction applies by looking to pretrial conduct, see

U.S.S.G. § 3E1.1, Application Note 2 (2016), which includes both conduct that demonstrates

acceptance and conduct that is inconsistent with it. See Hollis, 823 F.3d at 1047. Here, the district

court concluded that Charlton’s pretrial conduct did not demonstrate acceptance of responsibility.

Part of that conduct was Charlton’s claim that police told him his case would disappear—a

statement the district court found to be untruthful when it determined that police never promised


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United States v. Charlton


Charlton leniency. To fabricate evidence in an attempt to escape conviction is conduct inconsistent

with acceptance of responsibility. On this record, we cannot conclude that the district court clearly

erred in finding that the officers did not promise immunity or leniency, and thus that Charlton

should not get credit for acceptance of responsibility. Charlton has not met his burden.

                                                III.

       For these reasons, we affirm Charlton’s convictions and sentence.




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