                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 18-2801
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                   MICHAEL KOCH,

                                              Appellant
                                   ________________

                      Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                     (D.C. Criminal Action No. 4-16-cr-00315-001)
                      District Judge: Honorable Matthew W. Brann
                                   ________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    June 17, 2019

              Before: AMBRO, RESTREPO, and FISHER, Circuit Judges

                              (Opinion filed: July 12, 2019 )
                                   ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Michael Koch pled guilty in the District Court to two counts of mailing

threatening communications in violation of 18 U.S.C. § 876(c), and three counts of

threatening a former federal official in violation of 18 U.S.C. § 115(a)(2), for which he

received a within-Guidelines sentence of 96 months’ imprisonment. He appeals to us

raising six claims of error. We do not sustain any of them, so we affirm. We are also

unable to review his claim of ineffective assistance of counsel; to the extent he wishes to

pursue that claim, he will need to do so in the District Court under 28 U.S.C. § 2255.

       I.      Background

       Koch pled guilty to murder in 2003 and has been in federal prison since then. At

some time he was transferred to a high-security federal penitentiary in Lewisburg,

Pennsylvania, where he received treatment from a staff psychologist, D.M. In June 2016,

Koch sent two letters from prison—one to the District Court, and one to the U.S.

Attorney in Seattle, Washington (the office that had prosecuted him for the murder in

2003). In the letters, Koch threatened to kidnap, torture, and maim D.M. The opening

line of his letter to the District Court states:

       As soon as possible I will kidnap [D.M.] from her home, car, place of
       employment or wherever I find it most convenient, by force, I will use duct
       tape to bind her hands and feet, and cover her mouth, I will put [D.M.] in a
       cardboard box and transport her to a location of my choice, there I will use
       many devices to torture [her] and to maim her.

(Letter from Koch to District Court (June 1, 2016).) The letters go on to provide

extensive detail on how Koch planned to carry out this violence against D.M.




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       Based on these letters, the Government charged Koch with two counts of mailing

threatening communications and three counts of threatening a former federal official.

Koch pled guilty without a plea agreement. Before sentencing he filed a motion to

withdraw the guilty plea based on a claim that he never actually intended to carry out the

threats he made in the letters. The District Court denied that motion. As noted, it gave

Koch a within-Guidelines sentence of 96 months’ imprisonment.

       II.      Discussion

       Koch raises six claims of error on appeal. We address each in turn.

             A. Acceptance of Responsibility

       The District Court declined to grant an offense-level reduction for acceptance of

responsibility under U.S. Sentencing Guideline § 3E1.1. That Guideline provides up to a

three-level reduction for a defendant who “clearly demonstrates acceptance of

responsibility for his offense.” U.S.S.G. § 3E1.1(a)–(b). The District Court ruled that

Koch did not qualify for this reduction because he attempted to withdraw his plea on an

unpersuasive ground and did not express an acceptance of fault for the letters he had

written. Koch did not challenge that ruling at his sentencing, so we review it for plain

error. See United States v. Dahl, 833 F.3d 345, 357 (3d Cir. 2016). That means (1) an

error (2) that is “clear or obvious” (3) that “affected the appellant’s substantial rights” and

(4) “seriously affects the fairness, integrity or public reputation of judicial proceedings.”

United States v. Apple MacPro Computer, 851 F.3d 238, 245 (3d Cir. 2017) (internal

brackets and quotation marks omitted). We do not discern a clear error here: before


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sentencing Koch sought to withdraw his guilty plea based on an unpersuasive argument

that he never intended to carry out the threats in his letters. Given those circumstances,

we cannot say the District Court made a “clear” or “obvious” error by declining to grant

an offense-level reduction under U.S.S.G. § 3E1.1.

          B. Intent to Commit Threatened Violence

       The District Court imposed a six-level increase in Koch’s offense level under

U.S.S.G. § 2A6.1. That Guideline calls for this increase when a defendant is convicted of

a crime for threatening communications and “the offense involved any conduct

evidencing an intent to carry out such a threat.” U.S.S.G. § 2A6.1(b)(1). The District

Court found Koch had that intent based on the gruesome detail of his letters and the

similarity between the conduct threatened and the murder for which Koch was convicted

back in 2003. We review this factual finding for clear error. See United States v. Green,

25 F.3d 206, 211 (3d Cir. 1994). We discern no clear error—the level of detail in Koch’s

letters and the similarity to the 2003 murder were enough to support the Court’s finding

of intent. See id. at 210–11; see also United States v. Bohanon, 290 F.3d 869, 875 (7th

Cir. 2002).

          C. Koch’s Criminal History

       The Court calculated Koch’s criminal history as Category III based on his

commission of the offense while imprisoned, U.S.S.G. § 4A1.1(d), and his prior

conviction for murder. Koch contends the murder conviction should not have counted

toward his criminal history because that conviction “lacked an essential element.” (Koch


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Br. at 17.) Specifically, he claims the murder conviction is invalid because his attorney

in that proceeding did not adequately explain to him that “being an Indian” was an

element of the crime before Koch pled guilty to it. (Id.) Thus he believes the conviction

was invalid and should not have counted toward his criminal history here. (Id.) This line

of argument is basically a collateral attack on Koch’s prior conviction, which is not a

valid ground to overrule the District Court’s calculation of his criminal history category.

Per the Guidelines, the District Court correctly included the valid prior conviction to

calculate Koch’s criminal history. See U.S.S.G. § 4A1.1–.2.

          D. Interstate Agreement on Detainers Act

       Koch claims his indictment should have been dismissed under the Interstate

Agreement on Detainers Act, 18 U.S.C. app. 2 § 2.      It concerns prisoner transfers that

are prompted by one jurisdiction’s prosecution of criminal charges against a person

detained by another jurisdiction. See 18 U.S.C. app. 2 § 2; United States ex rel. Esola v.

Groomes, 520 F.2d 830, 833–34 (3d Cir. 1975). But this argument “fails to recognize the

fundamental principle that entry of a guilty plea acts as a waiver of the provisions of the

[Detainers Act].” United States v. Fulford, 825 F.2d 3, 10 (3d Cir. 1987). Moreover, the

Act applies only where the detaining jurisdiction and the prosecuting jurisdiction are

different, see 18 U.S.C. app. 2 § 2; Esola, 520 F.2d at 833–34, whereas here they are the

same (the federal government).




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          E. Speedy Trial Act

       Koch contends the District Court should have dismissed his indictment for

violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. It “generally requires a

federal criminal trial to begin within 70 days after a defendant is charged or appears in

the court where the charges are pending, whichever is later.” United States v. Reese, 917

F.3d 177, 181 (3d Cir. 2019). However, it also contains a series of provisions for

excluding time from the clock. See id.

       Koch asserts that more than 266 days expired on the 70–day clock before he

moved to dismiss the indictment under the Act. But his calculation does not exclude time

during which a motion was pending, see 18 U.S.C. § 3161(h)(1)(D), and also does not

exclude the continuances his attorney received on Koch’s motion “for the ends of justice”

under 18 U.S.C. § 3161(h)(7)(A). Properly excluding those days, we discern only five

unexcluded days under the Speedy Trial Act. Koch appeared for his arraignment on

November 8, 2016, and then he stopped the clock by filing a motion five days later. With

the clock still stopped, Koch’s attorney moved several times for continuances in the

interests of justice to prepare for trial, and the court granted those motions, excluding

time continuously until September 11, 2017, when Koch entered his guilty plea. In short,

we discern no violation of the Speedy Trial Act on the current record.

       As an alternative argument, Koch contends that his trial counsel rendered

ineffective assistance in connection with the Speedy Trial Act. Specifically, he says that

counsel did not have his consent to file various motions to continue trial. Therefore,


                                              6
Koch claims, his attorney gave ineffective assistance. However, we are unable to review

this argument on direct appeal. It is premised on factual assertions—namely, that Koch’s

trial attorney filed continuance motions without his consent—that are not before us. It is

a “well-settled rule” that our Court does not entertain such claims on direct appeal.

Government of Virgin Islands v. Lewis, 620 F.3d 359, 371 (3d Cir. 2010). We recognize

a narrow exception to this rule only when “the record is sufficient to allow determination

of ineffective assistance of counsel, [and] an evidentiary hearing to develop the facts is

not needed.” United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). That

exception does not apply here. If Koch wishes to pursue a claim of ineffective assistance

of counsel, he would need to do so through a post-conviction collateral proceeding,

perhaps under 28 U.S.C. § 2255.

          F. Removal from Courtroom

       Koch claims he should receive a resentencing because he was removed from the

courtroom during his sentencing. To be sure, Federal Rule of Criminal Procedure 43

generally requires a defendant’s presence during sentencing. See Fed. R. Crim. P.

43(a)(3). But the Rule also provides that a defendant who was present for his guilty plea

(as Koch was here) “waives the right to be present . . . when the court warns the

defendant that it will remove the defendant from the courtroom for disruptive behavior,

but the defendant persists in conduct that justifies removal from the courtroom.” Fed. R.

Crim. P. 43(c)(1)(C). That is what happened here. During sentencing the Court gave

Koch an opportunity to speak. He used that opportunity to make arguments about his


                                             7
murder conviction; he did not discuss the crimes for which he was being sentenced. At

the end, the Court asked Koch whether he had anything else to say. Koch responded,

“I’m not staying for the rest of this. I’m done. I won’t do this shit.” (A43.) He then

became belligerent, talking over the District Judge and the courtroom security officer.

Finally the Judge told Koch to calm down or he would be moved to another courtroom

with videoconference. Koch said “Let’s do that. Let’s go to another courtroom.” (A47.)

There was thus no error in Koch participating in the remainder of the sentencing by

videoconference.

                              *      *      *      *      *

       We cannot sustain any of Koch’s claims of error and thus affirm.




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