          United States Court of Appeals
                     For the First Circuit


No. 17-1041

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    D'HATI COLEMAN, a/k/a Q,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                             Before

                      Howard, Chief Judge,
              Torruella and Selya, Circuit Judges.


     Neil L. Fishman on brief for appellant.
     Halsey B. Frank, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.


                        February 28, 2018
           SELYA, Circuit Judge.     The 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.

           We 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 sentence.

I.   BACKGROUND

           We 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


                                  - 2 -
stipulation, and the transcripts of the sentencing hearings.    See

United States v. D'Angelo, 802 F.3d 205, 206 (1st Cir. 2015).

          On 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 best."

          On 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




                              - 3 -
state charge of possession of narcotics with intent to sell.             See

Conn. Gen. Stat. § 21a-277(a).

            In due 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.

            At a 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




                                   - 4 -
that he had brought a woman from Maine to Connecticut for the

purpose of engaging in prostitution.

              During 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 involved in taking [a woman] to

Connecticut for prostitution."          At no point did counsel suggest

that prostitution-related activities were not relevant conduct

vis-à-vis the offense of conviction.

              When all was said and done, the district court found

that the defendant was engaged in the promotion of prostitution

both in Connecticut and in Maine.             In addition, the court found

that    the   defendant   had   falsely       denied    his    involvement     with

prostitution in Connecticut.           With respect to the defendant's

involvement with prostitution in Maine, the court found that the


                                      - 5 -
defendant had engaged in "an extraordinary amount of game playing

with the court, with probation, with the government, and with his

own counsel."      The court proceeded to deny the defendant an

offense-level reduction for acceptance of responsibility.

            With   acceptance   of    responsibility      removed   from   the

equation,    the   court   tentatively       calculated    the   defendant's

guideline sentencing range (GSR) to be 46 to 57 months.             The court

then gave effect to an amended sentencing stipulation entered into

between the parties, which authorized a time-served credit of 23

months (referable to the defendant's Connecticut conviction) "for

a sentence served on relevant conduct."           This stipulated credit

lowered the defendant's GSR to 23 to 34 months. Finally, the court

imposed a mid-range term of immurement: 32 months.               This timely

appeal followed.

II. ANALYSIS

            Represented by new counsel on appeal, the defendant

argues that the district court erred in refusing to grant him an

offense-level reduction for acceptance of responsibility, see USSG

§3E1.1, which would have produced a lower GSR and presumably a

more lenient sentence.      To be specific, he assigns error to the

district court's determination that his promotion of prostitution

in both Connecticut and Maine constituted relevant conduct for

which he did not accept responsibility.




                                     - 6 -
               We review questions of law, including questions about

the district court's interpretation of the sentencing guidelines,

de novo.       See United States v. Suárez-González, 760 F.3d 96, 99

(1st    Cir.     2014).         "Recognizing     the     special     difficulty     of

discerning, on a cold record, whether a defendant's expressions of

remorse were in earnest," we review the quintessentially factual

determination of whether a defendant has accepted responsibility

for clear error.           United States v. Deppe, 509 F.3d 54, 60 (1st

Cir. 2007).         These standards are altered when an appellant has

failed seasonably to make a particular argument below: in that

event, our review is normally for plain error.                  See United States

v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).                Last — but surely

not    least    —   when    a   party   has    intentionally       relinquished     or

abandoned a particular argument, that argument is deemed waived.

See id.        Waived arguments are not subject to appellate review.

See United States v. Washington, 434 F.3d 7, 11 (1st Cir. 2006);

Rodriguez, 311 F.3d at 437.

               Here, the defendant's primary contention is that the

district       court   should     not   have    denied    him   an    offense-level

reduction for acceptance of responsibility based on what he had

told the court about his involvement in prostitution.                             This




                                        - 7 -
contention is predicated on the notion that such involvement did

not constitute relevant conduct under USSG §1B1.3.1

          In     making      its      acceptance-of-responsibility

determination, the district court was obliged to consider, among

other things, whether the defendant "truthfully admitt[ed] the

conduct comprising the offense[] of conviction, and truthfully

admitt[ed] or [did] not falsely den[y] any additional relevant

conduct for which the defendant is accountable under § 1B1.3."

USSG §3E1.1, comment. (n.1(a)).       As a threshold matter, the

government asserts that the defendant has waived his right to

challenge this determination.2     In the government's view, the

defendant twice relinquished his right to argue that his promotion

of prostitution was not relevant conduct.   First, the government

notes that while the defendant contested the veracity of the PSI

Report's statements to the effect that he had brought a woman from


     1 In drug-trafficking cases, "relevant conduct" includes all
acts and omissions "that were part of the same course of conduct
or common scheme or plan as the offense of conviction."       USSG
§1B1.3(a)(2). The "sweeping" language of section 1B1.3 affords a
sentencing court wide discretion to determine whether particular
conduct falls within the definition. United States v. Watts, 519
U.S. 148, 153-54 (1997)(per curiam); see D'Angelo, 802 F.3d at
210-11 (holding that sentencing court may consider all relevant
conduct regardless of whether such conduct is either charged or
constitutes an element of the offense of conviction).
     2 Waiver is the intentional relinquishment or abandonment of

a claim or defense. See Hamer v. Neighborhood Hous. Serv. Of Chi.,
138 S. Ct. 13, 17 n.1 (2017). Waiver is wholly distinguishable
from forfeiture, which arises when a party has failed to make a
"timely assertion of a right."     Id. (quoting United States v.
Olano, 507 U.S. 725, 733 (1993)).


                              - 8 -
Maine to Connecticut in order to engage in prostitution, he

effectively conceded that such a fact, if true, would constitute

relevant    conduct.     Second,   the     government    asserts   that   the

defendant waived his relevant conduct claim when he joined with

the prosecution in stipulating for a time-served reduction (23

months) to his guideline range "for a sentence served on relevant

conduct."    The events to which the government alludes combine to

justify a finding of waiver.

            The government's first claim of waiver stems from a

statement made by defense counsel during sentencing.                Counsel

acknowledged that even though the defendant denied bringing a woman

to Connecticut for the purpose of prostitution, he did "not dispute

at all that his involvement in this relevant conduct" was something

that — if true — the court should consider.         Counsel's matter-of-

fact   acknowledgement     that    the     allegations     concerning     the

defendant's involvement in prostitution, if found to be true, would

form the basis for a finding of relevant conduct itself seems

sufficient to ground a finding of waiver.           See United States v.

Walker, 538 F.3d 21, 23 (1st Cir. 2008) (holding that defendant

waived any right to claim as error a sentencing rationale that she

had advanced before the district court); United States v. Ramirez-

Rivera, 241 F.3d 37, 39-40 (1st Cir. 2001) (holding that party who

acknowledged district court's discretion to act had waived any

argument to the contrary); United States v. Coady, 809 F.2d 119,


                                   - 9 -
121 (1st Cir. 1987) (rejecting assignment of error based on lack

of entrapment instruction after defense counsel represented to

trial court that entrapment was "not an issue in this case").

           The second building block on which the government erects

its claim of waiver is even sturdier.         Having represented that the

events underlying his Connecticut conviction constituted relevant

conduct in order to secure a reduction in his federal sentence,

the defendant cannot now do an about-face and be heard to complain

that the same conduct should be deemed irrelevant for other

sentencing purposes.      See United States v. Melvin, 730 F.3d 29, 40

(1st Cir. 2013) (concluding that party could not dismiss evidence

as trivial on appeal after having argued below that the same

evidence was prejudicial); Tierney, 760 F.2d at 388 (similar).

           The   doctrine    of   judicial    estoppel    offers     a   useful

perspective.     Though civil in nature, the rationale underlying

judicial estoppel is implicated here.          The doctrine "prevent[s] a

litigant from taking a litigation position that is inconsistent

with a litigation position successfully asserted by him in an

earlier phase of the same case or in an earlier court proceeding."

Perry v. Blum, 629 F.3d 1, 8 (1st Cir. 2010). Viewed in a practical

light,   the   doctrine   protects   the     "integrity   of   the   judicial

process" against a party who "tries to play fast and loose with

the courts."     Id.




                                  - 10 -
            The analogy is both obvious and compelling.        Here, the

defendant    stipulated   that   the   circumstances     underlying   his

Connecticut conviction constituted relevant conduct for sentencing

purposes when such a stipulation worked in his favor.        Thus, it is

eminently fair to preclude him from arguing, at a later stage of

the same case, that the circumstances underlying that conviction

are not relevant conduct.

            Having concluded that principles of waiver foreclose the

defendant's relevant conduct claim, we turn to the defendant's

lone remaining claim of error.         He submits that, regardless of

whether the district court was correct in measuring the dimensions

of his relevant conduct, the court erred in determining that he

had not accepted responsibility within the purview of USSG §3E1.1.

We review this claim for clear error.      See Deppe, 509 F.3d at 60.

            Under section 3E1.1, a defendant may receive an offense-

level reduction if he clearly demonstrates that he has accepted

responsibility for the offense of conviction.          See United States

v. Jordan, 549 F.3d 57, 60 (1st Cir. 2008).            To secure such a

reduction,3 the defendant must show that he "truthfully admitt[ed]


     3 The extent of an offense-level reduction for acceptance of
responsibility may vary.        A defendant who has "clearly
demonstrate[d] acceptance of responsibility" may receive a two-
level reduction. USSG §3E1.1(a). "If the defendant receives this
first-tier adjustment and if [certain other conditions are met],
[a] second tier comes into play."     United States v. Meléndez-
Rivera, 782 F.3d 26, 29 (1st Cir. 2015). When a defendant reaches
that second tier, he may become eligible to receive an additional


                                 - 11 -
the conduct comprising the offense[] of conviction, and truthfully

admitt[ed] or [did] not falsely deny [] any additional relevant

conduct . . . ." USSG §3E1.1, comment. (n.1(a)); see United States

v. Melendez, 775 F.3d 50, 59 (1st Cir. 2014); United States v.

Garrasteguy, 559 F.3d 34, 38 (1st Cir. 2009).                 The devoir of

persuasion rests with the defendant, see Deppe, 509 F.3d at 60,

and he must carry that burden by a preponderance of the evidence,

see United States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990).

           It is common ground that "[a]cceptance of responsibility

entails more than merely mouthing the vocabulary of contrition."

See Deppe, 509 F.3d at 60.        To the contrary, the defendant must

persuade   the     sentencing    court     that   "he   has     taken   full

responsibility for his actions, and he must do so candidly and

with genuine contrition."       United States v. Saxena, 229 F.3d 1, 9

(1st Cir. 2000).

           In the case at hand, the district court found that the

defendant falsely denied his involvement in the prostitution-

related    activities   that     the     court    supportably    determined

constituted relevant conduct.       The defendant's challenge to this

finding contains more cry than wool.

           The record shows, beyond hope of contradiction, that the

defendant — through objections to the PSI Report, arguments at



one-level reduction. See USSG §3E1.1(b)(specifying requirements
for three-level reduction).


                                  - 12 -
sentencing, and positions taken in his sentencing memorandum —

repeatedly denied any involvement in the promotion of prostitution

in Connecticut.    His spurious denials of this relevant conduct,

without more, defenestrate his claim that he should have been given

an offense-level reduction for acceptance of responsibility.

          If more were needed — and we do not think that it is —

the district court also found that the defendant did not accept

responsibility for his promotion of prostitution in Maine.            That

finding is not clearly erroneous.          Even though the defendant

eventually admitted his involvement in prostitution in Maine, he

equivocated on the issue and altered his position several times.

This backing and filling led the district court to conclude

(supportably, we think) that the defendant had engaged in "an

extraordinary    amount   of   game   playing   with   the   court,   with

probation, with the government, and with his own counsel."

          A defendant cannot bob and weave before the sentencing

court, equivocate about whether a material fact is true or is not,

and then lay claim to a credit for acceptance of responsibility by

coming clean at the eleventh hour.        Such a checkered course of

conduct is inconsistent with the requirement that a defendant

"candidly" take responsibility and show "genuine contrition" for

his conduct, and a sentencing court may decline to grant an

offense-level reduction for acceptance of responsibility in such

circumstances.    Saxena, 229 F.3d at 9.


                                 - 13 -
            That ends this aspect of the matter.       We conclude,

without serious question, that the district court did not clearly

err in refusing to grant the defendant an offense-level reduction

for acceptance of responsibility.

III. CONCLUSION

            We need go no further. For the reasons elucidated above,

the defendant's sentence is



Affirmed.




                               - 14 -
