                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0340n.06

                                          No. 14-2391                                 FILED
                                                                                Jun 21, 2016
                                                                            DEBORAH S. HUNT, Clerk
                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA                                )
                                                        )
       Plaintiff-Appellee                               )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
EARL ZHIVAGO COLEMAN                                    )       COURT FOR THE WESTERN
                                                        )       DISTRICT OF MICHIGAN
       Defendant-Appellant                              )
                                                        )
                                                        )



BEFORE:        BOGGS, ROGERS, and STRANCH, Circuit Judges.

       ROGERS, Circuit Judge. Earl Coleman challenges his 248-month sentence for federal

drug and gun violations. Coleman argues that a three-level aggravating-role enhancement under

U.S.S.G. § 3B1.1(b) was applied in error because there were fewer than five participants in his

criminal activities. Coleman also contends that his sentence was substantively unreasonable

because the district court, in determining Coleman’s sentence, relied on the fact that he fathered

children out of wedlock.      The Government in turn argues that Coleman waived, via plea

agreement, his ability to challenge his sentence on direct appeal. The district court did not

clearly err in finding that Coleman’s criminal activity involved at least five participants. The

court also did not base Coleman’s sentence on his having fathered children out of wedlock.

Accordingly, even if Coleman did not waive his right to appeal his sentence, his sentencing

arguments fail on the merits. Coleman’s arguments therefore do not provide a basis for relief.
No. 14-2391
United States v. Coleman

       In 2013, law enforcement began investigating the heroin trafficking activities of Coleman

and his supplier, Quincy Williams. Confidential informants told law enforcement that Williams

was a drug trafficker who had relocated from Kalamazoo, Michigan to Chicago, Illinois.

       In January of 2014, law enforcement officers observed two people, who turned out to be

Coleman and his drug runner, Shawn Clark, leave Coleman’s known stash house at

715 Fairbanks in Kalamazoo, enter a vehicle, and exit the area. After Clark, the driver of the

vehicle, committed a traffic violation, the officers stopped the vehicle. Officers searched both

Clark and Coleman. After finding heroin on both Clark and Coleman, the officers placed both

men under arrest.

       Law enforcement also obtained a warrant to search Coleman’s stash house at

715 Fairbanks. An individual named Cynthia Abrams was inside the residence at the time of the

search. Abrams told the law enforcement that she had a dating history with Coleman, slept at the

residence, and was a heroin user. During the search of the residence, investigators located and

seized heroin, digital scales, drug paraphernalia, and a loaded Glock semiautomatic pistol.

       Later, at the Kalamazoo County Jail, Coleman told law enforcement that he had been

traveling to Chicago to obtain heroin from Williams for several months. Coleman identified

Clark and an individual named Jerry White as runners who sold heroin for him in exchange for

personal quantities of the drug. Coleman also stated that he had purchased—for protection—the

Glock pistol that law enforcement had found in the stash house.

       Clark provided a proffer statement to assist law enforcement. In this statement, Clark

claimed that he drove Coleman to Chicago on at least nine occasions between September 2013

and late January 2014. Clark also stated that “two different females, namely ‘Peaches’ and

Cynthia Abrams, accompanied” him and Coleman to Chicago to obtain heroin from Williams.


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No. 14-2391
United States v. Coleman

According to Clark, once they returned to Kalamazoo, Coleman would arrange heroin deliveries

and purchases and would collect money from sales. Clark also stated that he “was always the

driver for the deliveries” and that Coleman had White “do most of the hand-to-hand deliveries.”

       A grand jury charged Coleman with four offenses: (1) conspiring to traffic heroin in

violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(i) (count one); (2) possession with

intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (count two);

(3) possession of a firearm in furtherance of drug trafficking crimes, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i) (count three); and (4) being a felon in possession of a fireman, in violation of

18 U.S.C. § 922(g)(1) (count four).

       Law enforcement authorities arrested Williams in Chicago in April of 2014. Williams

told law enforcement that he supplied Coleman with heroin between 2013 and January 2014.

Williams also said that Coleman, in addition to using Clark to drive him to and from Chicago to

pick up heroin, used three other individuals to assist him with distributing heroin in Kalamazoo.

Williams also identified his own heroin supplier.

       Coleman subsequently pled guilty to counts two and three, pursuant to a written plea

agreement, in exchange for the Government’s promise to move to dismiss counts one and four.

       Following Coleman’s guilty plea, the United States Probation Office conducted a

presentence investigation of Coleman and the offense conduct. In the final presentence report,

the probation officer recommended applying a three-level aggravating role enhancement under

U.S.S.G. § 3B1.1(b) based on Coleman’s involvement as a “manager or supervisor of a criminal

activity involving five or more participants.”

       The probation officer also stated that, based on a total offense level of 34 and a criminal

history category of V, the Guidelines range was 235 to 293 months of imprisonment. The


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No. 14-2391
United States v. Coleman

probation officer further explained that the district court must impose a term of at least five years

on count three, to run consecutively to any other term of imprisonment imposed for count two.

The probation officer also noted that Amendment 782, which would lower the base offense level

for Coleman’s drug trafficking offense by two levels, would likely become effective shortly after

Coleman’s sentencing hearing was scheduled. U.S.S.G. Supp. App. C Amend. 782 (eff. Nov. 1,

2014). The probation officer observed that the Amendment 782-adjusted range for count two

would be 188 to 235 months of imprisonment.

       At Coleman’s sentencing hearing, Coleman’s counsel objected to the probation officer’s

recommendation to impose a three-level enhancement under U.S.S.G. § 3B1.1(b), arguing that

the record did not establish that Coleman was a manager or a supervisor of a criminal activity

that involved five or more participants. The district court concluded that Coleman’s heroin-

distribution operation included “Mr. Coleman, Mr. Williams, Mr. Clark, and Cynthia Abrams

and Jerry White, Peaches,” all of whom “apparently came upon the grouping that was at various

time distributing” the heroin. The district court also concluded that Coleman was “right in the

thick of it in terms of understanding what went on.” The district court therefore overruled

Coleman’s objection.

       Coleman also moved for a downward departure, arguing that his criminal history score

overstated the seriousness of his criminal past. In response to Coleman’s motion, the district

court described Coleman’s personal history, beginning with “an unstable background” that gave

rise to a pattern of “nonstop contact with police officers” and criminal activity “in Kalamazoo

and other places over a period of many, many years.” The court then observed that Coleman had

fathered “a number of children born without the benefit of marriage, and therefore, that brings

with it a whole series of other problems for those children as a result.”


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No. 14-2391
United States v. Coleman

       After stating that Coleman was a “reasonably intelligent person” with a “good head on

[his] shoulders,” the district court encouraged him to “get through this experience . . . and make

something of [him]self.” The district court then noted “the repeated nature of the incidents” that

were before the court, Coleman’s “complete” lack of respect for the law, and the need to build

“some kind of an adequate deterrence” into Coleman’s sentence to prevent “this kind of hard

drug delivery out onto the street.” The district court also reasoned that there was a need to

protect the public against Coleman’s criminal activity. To support this conclusion, the district

court explained that Coleman had harmed the people who had bought heroin from him, as well

as children whose fathers or mothers might have died or gone to prison because they used heroin

that Coleman distributed.

       The district court therefore denied Coleman’s motion for a downward departure. The

district court instead sentenced Coleman to 188 months of imprisonment on count two, imposing

a sentence at the low end of the Amendment 782-adjusted range that went into effect shortly

after Coleman’s sentencing hearing, and sentenced Coleman to the mandatory minimum of

60 months on count three. The district court also granted the prosecutor’s motion to dismiss

counts one and four of the superseding indictment pursuant to Coleman’s plea agreement.

       Coleman appeals his sentence.

       The Government contends that Coleman waived, via his plea agreement, his right to

appeal his sentence. In response, Coleman argues that his appeal waiver is invalid because he

did not knowingly and voluntarily waive his right to directly appeal his sentence and because his

plea agreement was obtained through a coercive process. We need not determine whether

Coleman’s appeal waiver is valid because, for the reasons discussed below, Coleman’s

challenges to his sentence fail on the merits. Because “[t]he enforcement of appellate waivers


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No. 14-2391
United States v. Coleman

fits comfortably in the rubric of a mere claim-processing rule,” assuming that a defendant’s

appellate waiver “is unenforceable does not constitute an impermissible assumption of

jurisdiction.” United States v. Caruthers, 458 F.3d 459, 472 n.6 (6th Cir. 2006). Accordingly,

for present purposes we assume without deciding that Coleman’s appellate waiver is not

enforceable, and turn to the merits of Coleman’s sentencing arguments.

       Coleman contends that the district court erred in applying a three-level enhancement

under U.S.S.G. § 3B1.1(b) to his offense level. Under § 3B1.1(b), if the defendant was “a

manager or supervisor (but not an organizer or leader) and the criminal activity involved five or

more participants or was otherwise extensive,” the sentencing court is to apply an increase of

three levels. “The government bears the burden of proving that the enhancement applies by a

preponderance of the evidence.” United States v. Vandeberg, 201 F.3d 805, 811 (6th Cir. 2000).

While Coleman does not contest the district court’s conclusion that he was a manager or

supervisor of criminal activity that included Coleman, his supplier Williams, his delivery man

Clark, and his driver White, Coleman does argue that the district court erred in concluding that

Abrams or “Peaches” qualified as a fifth participant in the criminal activity. Coleman therefore

contends that the district court should not have added a three-level enhancement to his sentence

under § 3B1.1(b). This argument is unavailing.

       The district court properly concluded that the criminal activity involved at least five

participants. This is because the district court’s factual conclusion that Abrams was aware of the

criminal activity at issue and knowingly offered her assistance to Coleman was not clearly

erroneous. See United States v. Moon, 513 F.3d 527, 539−40 (6th Cir. 2008) (stating the scope

of review). Accordingly, the district court properly applied the three-level enhancement under

§ 3B1.1(b).


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No. 14-2391
United States v. Coleman

       Williams’s and Abrams’s statements to the police supported the district court’s

determination that Abrams knowingly assisted in the criminal activity at issue. Abrams told the

police that she was a heroin user who lived with and had an intimate relationship with Coleman.

In his post-arrest statement, Williams stated that Coleman, in addition to using Clark’s assistance

to travel to and from Chicago to obtain heroin, “use[d] . . . three other individuals to assist him in

heroin distribution in Kalamazoo.” The addendum included in the final presentencing record

clarified that these three individuals were White, Abrams, and a woman called “Peaches.” For

the purposes of § 3B1.1, a participant is “a person who is criminally responsible for the

commission of the offense, but need not have been convicted.” United States v. Anthony,

280 F.3d 694, 698 (6th Cir. 2002) (quoting U.S.S.G. § 3B1.1, cmt. n.1). Persons “who were

(i) aware of the criminal objective, and (ii) knowingly offered their assistance” are considered

participants for the purposes of § 3B1.1. Id. It was not clearly erroneous for the district court to

conclude, based on Abrams’s and Williams’s statements, that Abrams was aware of Coleman’s

criminal objective and knowingly offered to assist him in distributing heroin in Kalamazoo. The

district court therefore properly determined that Abrams qualified as a fifth participant in the

criminal activity.

       Coleman argues that because Clark and Williams provided inconsistent statements about

Abrams’s role in Coleman’s heroin distribution activities, the Government failed to establish by

a preponderance of the evidence that there were at least five participants in the criminal activity.

To support this argument, Coleman notes that although Clark stated that Abrams rode along with

him and Coleman on their trips to buy heroin in Chicago, Clark did not indicate that Abrams was

responsible for the distribution of the drugs in Kalamazoo. This argument lacks merit. This is

because Clark did not contradict Williams’s statement that Abrams assisted Coleman in


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No. 14-2391
United States v. Coleman

distributing heroin. Although Clark stated that he performed driving deliveries for Coleman and

that White performed hand-to-hand deliveries, Clark never stated that he and White were the

only people who assisted Coleman in distributing heroin in Kalamazoo. Clark also never stated

that Abrams’s involvement in the criminal activity was limited to accompanying the other

members of the group on their trips to Chicago. The district court could therefore conclude,

consistent with Clark’s statement, that Abrams knowingly assisted Coleman in distributing

heroin in Kalamazoo.

       The district court’s application of the three-level enhancement under § 3B1.1(b) must be

upheld because the district court’s conclusion that there were at least five participants in the

criminal activity was not clearly erroneous. Because the record supports the district court’s

conclusion that Abrams qualified as a fifth participant in the criminal activity, we do not reach

the issue of whether the woman known as “Peaches” and Williams’s heroin supplier also

qualified as participants. We also do not reach the issue of whether the criminal activity at issue

was “otherwise extensive” for the purposes of § 3B1.1(b).

       In addition to arguing that the district court improperly enhanced his sentence under

§ 3B1.1(b), Coleman argues that the district court weighed an impermissible factor at the

sentencing hearing by considering Coleman’s parentage of children born out of wedlock.

Coleman contends that the district court’s weighing of this impermissible factor resulted in a

substantively unreasonable sentence. This argument is unavailing.

       Although a sentence may be substantively unreasonable “when the district court . . . bases

the sentence on impermissible factors,” United States v. Borho, 485 F.3d 904, 908 (6th Cir.

2007), the district court did not base Coleman’s sentence on an impermissible factor. The

district court therefore did not abuse its discretion when it sentenced Coleman. See Gall v.


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No. 14-2391
United States v. Coleman

United States, 552 U.S. 38, 41 (2007) (stating scope of review). It is true that the district court,

while describing Coleman’s personal history, observed that Coleman had “a number of children

born without the benefit of marriage, and therefore, that brings with it a whole series of other

problems for those children as a result.” However, the district court mentioned Coleman’s

fathering of children out of wedlock not to support the court’s chosen sentence, but rather to

provide an illustration, as one of several examples, of the type of irresponsible behavior that

Coleman had engaged in throughout his life. Prior to observing that Coleman had fathered

children out of wedlock, the district court stated that Coleman’s “irresponsibility” had begun at

“a very young age.” The district court then explained that Coleman’s irresponsible behavior

included “nonstop contact with police officers” in “Kalamazoo and other places over a period of

many, many years,” as well as fathering “a number of children born without the benefit of

marriage.”    The district court therefore mentioned Coleman’s fathering of children out of

wedlock in order to provide an illustration of Coleman’s irresponsible behavior. Taking note of

an irrelevant, discouraged, or forbidden factor, as opposed to relying on that factor to support a

sentence, is not an abuse of discretion. See United States v. Christman, 607 F.3d 1110, 1119 (6th

Cir. 2010).

        The district court did not rely on Coleman’s fathering of children out of wedlock in

determining Coleman’s sentence. The court did not refer to Coleman’s fathering of children out

of wedlock at the point in the hearing when it explained its chosen sentence. Instead, the district

court described Coleman’s repeated engagement in criminal activity, his “complete lack of

respect for law,” the need to build “adequate deterrence” into his sentence to prevent the delivery

of “hard drug[s] . . . out onto the street,” and the need to protect the public.




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No. 14-2391
United States v. Coleman

       The district court also did not refer to Coleman’s fathering of children born out of

wedlock when it explained why there was a need to protect the public against Coleman’s

criminal activities. Rather, the district court reasoned that Coleman had “made a mess of [his

customers’] lives” by selling heroin to them. The district court also observed that Coleman may

have harmed children whose fathers or mothers may have died or gone to prison because they

used heroin that Coleman had sold to them. The district court’s explanation of Coleman’s

sentence therefore did not indicate, much less prove, that the district court was using Coleman’s

status as the father of children born out of wedlock to determine his sentence. This record,

moreover, leads to the conclusion that the district court would have imposed the same sentence

absent Coleman’s parental status.

       Moreover, the district court sentenced Coleman at the bottom of the Amendment 782-

adjusted range that went into effect shortly after Coleman’s sentencing hearing. “In evaluating

the substantive aspect of a sentence, we may apply a rebuttable presumption of reasonableness to

sentences within the Guidelines,” United States v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008), and

also may presume that a below-Guidelines sentence is not unreasonably severe, United States v.

Curry, 536 F.3d 571, 573 (6th Cir. 2008). Thus, a rebuttable presumption of reasonableness

attaches to Coleman’s sentence. Because the district court did not base Coleman’s sentence on

an impermissible factor, Coleman has failed to rebut the presumption that his sentence was

reasonable.

       Our decision in United States v. Barahona-Montenegro, 565 F.3d 980 (6th Cir. 2009),

does not require a different result. In Barahona-Montenegro, this court held that the defendant’s

sentence was procedurally unreasonable in part because the district court failed to “properly

calculate the Guidelines range or adequately explain the chosen sentence,” and “what little


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No. 14-2391
United States v. Coleman

explanation the district court did provide referenced irrelevant factors such as the fact that [the

defendant] had five children who had been born out of wedlock.” Id. at 983, 985. Here, in

contrast, the district court properly calculated the Guidelines range and thoughtfully explained its

chosen sentence. Further, the district court did not rely on Coleman’s marital status when he

fathered children in determining his sentence, but merely observed that Coleman had fathered

children out of wedlock when describing Coleman’s personal history. Barahona-Montenegro is

therefore inapposite.

       When taking note of elements of a defendant’s history and personal circumstances,

district courts should of course use care to avoid leaving an impression that irrelevant factors

may have affected the sentence.        However, a review of the entire sentencing transcript

establishes that the district court here did not rely on Coleman’s status as the father of children

out of wedlock when it determined his sentence. Accordingly, Coleman has failed to rebut the

presumption that his sentence was substantively reasonable.

       The judgment of the district court is affirmed.




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