United States v. Nathaniel Coles ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-2590
_____________
UNITED STATES OF AMERICA
v.
NATHANIEL DA-MEIR COLES
a/k/a DAZ, a/k/a D,
Appellant
_______________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 2-14-cr-0496-003)
District Judge: Honorable Gerald A. McHugh
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
February 9, 2023
Before: JORDAN, HARDIMAN, and MATEY, Circuit Judges
(Filed: March 20, 2023)
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OPINION ∗
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∗
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Nathaniel Coles challenges the sentence he received after being convicted of
conspiracy. He argues he is entitled to a reduction for acceptance of responsibility and
that the career offender enhancement under the Sentencing Guidelines does not apply to
him. We will affirm.
I. BACKGROUND
We recently detailed the facts surrounding the conspiracy at issue when we
resolved the appeal of one of Coles’s co-conspirators, Donald Womack, Sr. 1 Because we
write solely for the parties, and Coles does not challenge his factual guilt before us, a
more streamlined discussion of those facts will suffice.
“In January 2014, federal authorities in the midst of a narcotics investigation in
Chester, Pennsylvania uncovered … ‘a conspiracy to import several kilograms of cocaine
from Mexico[.]’” United States v. Womack, 2022 WL 4376073, at *1 (3d Cir. Sept. 22,
2022) (citation omitted). At that point federal agents had already been authorized to
wiretap Womack’s cousin, Paris Church, “after [Church] had been identified as part of a
1
That appeal, No. 19-1900, was initially consolidated with the instant appeal when
Coles also challenged the sufficiency of the evidence at that same trial. We have since
granted Coles’s request that his counsel be removed and the brief she filed be withdrawn.
Coles, now proceeding pro se, contends he did not challenge his factual guilt at trial and
does not do so now. Because Coles does not cite to a trial transcript in his brief, we
partly draw on our opinion in United States v. Womack, 2022 WL 4376073 (3d Cir. Sept.
22, 2022), and the appendix filed in Womack’s appeal, which the government likewise
cites in its discussion of trial evidence. Aside from trial evidence, like the government,
we cite to the appendix submitted in connection with the since-withdrawn opening brief,
as we authorized the parties to cite to it. All references herein to the Answering Brief are
to the one that answers Coles’s Pro Se Opening Brief.
2
separate, larger investigation.”2 Id. at *1 n.1. The government captured a number of
communications by Coles, Womack, Church, and a fourth conspirator, Michael Pinkney,
as the four tried to obtain cocaine from a person, known only as Daniel, who ostensibly
was a cocaine supplier in Mexico.
Ultimately those efforts, which lasted about a week, were unsuccessful. Church
initially had difficulty connecting with Daniel by phone, but Coles and Womack each
successfully got in touch with Daniel. After that, Daniel called Church and they
discussed a plan for Daniel to get a shipment of cocaine across the border using a courier
who would pass the drugs to Church in Houston, Texas. Daniel promised the courier
would deliver 18 to 20 kilograms of cocaine and that he would contact him again once he
finalized the plans for his courier to get to Houston.
Two days later, Daniel called Church, after Coles had asked Daniel to do so at
Church’s prompting. Daniel told Church that the courier could be in Houston the
following evening, but, before then, Church had to wire $300 to the courier via Western
Union. Church wired the money after discussing the request with Womack. Two days
later, Church heard from Daniel, who said the courier was almost ready. But the drugs
never arrived and that was the last the conspirators ever heard from Daniel, despite
Church, Womack, and Coles unsuccessfully trying to contact him over the following
2
The wiretap permitted the government “to intercept both calls and text messages
to and from Church’s phones, capturing data about the intercepted communications,
including dates, times, phone numbers, and audio in the case of calls.” Womack, 2022
WL 4376073, at *1 n.1.
3
several days. At that point, the conspirators came to the realization Daniel would not
carry out his part of the deal despite having taken some money.
In September 2014, Coles, Womack, Church, and Pinkney were charged in a
single-count indictment for conspiring to possess with intent to distribute at least five
kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Pinkney
pled guilty. Coles, Womack, and Church were convicted after a five-day jury trial, in
which “[t]he government relied on the conversations federal authorities had intercepted,
as well as testimony from Pinkney[.]” Womack, 2022 WL 4376073, at *2. “[T]he
District Court denied Womack’s and Cole’s mid-trial and post-trial motions for
judgments of acquittal.” Id.Coles was sentenced to a below-guidelines sentence of 240 months. 3 The PSR
calculated that his offense level under the guidelines would have been 32 with a criminal
history level of V, except that he was a career offender under U.S.S.G. § 4B1.1 due to his
two prior convictions for controlled substance offenses. The District Court determined,
without objection from Cole’s counsel, that his career offender status increased his
offense level to 37 and criminal history level to VI, yielding a guidelines range of 360
months to life. The District Court then rejected Coles’s contention that he should receive
3
Coles’s jury-trial conviction, Cr. No. 14-0496, was consolidated for purposes of
sentencing with a second case, Cr. No. 14-516, in which he pled guilty to conspiracy to
distribute 500 grams or more of cocaine under Federal Rule of Criminal Procedure Rule
11(c)(1)(C), with a recommended a sentence of 120 months. Coles received that
recommended sentence to run concurrently with his 240-month sentence. Coles has not
challenged any aspect of his plea or sentence in Cr. No. 14-516 and, so, we will not
discuss it here.
4
a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 as
inconsistent with Coles’s position at trial. The Court did, however, find that Coles was
entitled to a two-level reduction for playing a relatively minor role in the conspiracy
under U.S.S.G. § 3B1.2(b). 4 The District Court calculated the guidelines range to be 292
to 365 months using an offense level of 35 and criminal history level of VI. 5 But the
District Court found that a below-guidelines range sentence was appropriate considering
several factors advanced by Coles’s sentencing counsel, including that he was
comparatively less culpable, that he possessed positive qualities evidenced by letters from
his supporters, that he demonstrated good conduct and efforts toward rehabilitation while
in prison, and that Womack had negatively influenced the younger Coles. 6 [19-2590
App. at 948-53.]
4
Coles sought a four-level reduction under U.S.S.G. § 3B1.2(a) for having a
minimal role, but he does not challenge on appeal the District Court’s determination that
only a two-level reduction for minor role was appropriate.
5
Given the District Court’s rulings on acceptance of responsibility and minor role,
the parties did not object that an offense level of 35 resulted or that it yielded such a
range with a criminal history of VI. The government now identifies that calculation as an
error that benefited Coles. The government correctly observes that the parties and the
District Court overlooked that the adjustment of Coles’s offense level due to his career
offender designation should have been accounted for after the reduction for his minor
role in the conspiracy. The correct result therefore should have been that Coles’s offense
level would have remained at 37 with a range of 360 months to life. See U.S.S.G. §§
1B1.1(a)(2), (3), and (6) (explaining that base offense level and adjustments for role are
applied before adjustments in Part B of Chapter Four, including § 4B1.1 (“Career
Offender”)). That said, the government believes the District Court would have reached
the same result by variance and, so, does not press this point.
6
Between trial and sentencing Coles switched attorneys, so we refer to them as
trial counsel and sentencing counsel respectively.
5
This appeal followed.
II. DISCUSSION 7
A. Coles Did Not Clearly Accept Responsibility
Coles argues the District Court erred in denying him a two-level reduction in his
offense level under the Sentencing Guidelines for having accepted responsibility. 8 As we
have recently observed, “[t]his adjustment is not intended to apply to a defendant who
puts the government to its burden of proof at trial by denying the essential factual
elements of guilt ....” United States v. Womack, 55 F.4th 219, 240-41 (3d Cir. 2022)
(quoting U.S.S.G. § 3E1.1 app. note 2). But “[i]n rare situations” a defendant who
proceeds to trial may, nevertheless, “clearly demonstrate an acceptance of responsibility”
such as when he does so to “assert and preserve issues that do not relate to factual guilt
(e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a
statute to his conduct).” U.S.S.G. § 3E1.1 app. note 2. In such a rare situation, the
“determination that a defendant has accepted responsibility will be based primarily upon
pre-trial statements and conduct.” Id.
7
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.
8
A defendant is entitled to such a reduction when he “clearly demonstrates
acceptance of responsibility for his offense[.]” U.S.S.G. § 3E1.1. Whether a defendant
has accepted responsibility is a factual question, thus we review denial of that adjustment
for clear error. United States v. Womack, 55 F.4th 219, 240 (3d Cir. 2022). Indeed, it is
well-settled that “we give great deference on review to a sentencing judge’s decision not
to apply the two-level reduction for acceptance of responsibility to a particular
defendant” “[b]ecause the sentencing judge ‘is in a unique position to evaluate a
defendant’s acceptance of responsibility[.]’” United States v. Barr, 963 F.2d 641, 657
(3d Cir. 1992) (quoting U.S.S.G. § 3E1.1 app. note 5).
6
Coles’s motions for judgment of acquittal and his closing arguments make clear
that he factually contested his guilt at trial and, so, plainly does not meet the standard for
clear acceptance of responsibility. Coles’s trial counsel emphasized that the
government “ha[s] to prove that he was a conspirator[ 9], … not just [he] maybe knew
what was going on, but he was a conspirator, he was a participant. He had a stake in the
venture, none which they’ve proven.” (19-2590 App. at 656). But counsel went further,
arguing that Coles, in fact, “didn’t know what the heck was going on” and, at most, “may
have thought that Mr. Church might be trying to do something[.]” 10 (19-2590 App. at
652.) Thus, he argued, Coles “was innocent” and “remains innocent” because “because
he wasn’t part of the conspiracy.” (19-2590 App. at 656.) Coles’s arguments before us,
like those advanced by his sentencing counsel before the District Court, are premised on
the mischaracterization that Coles had not factually contested his guilt.
9
To prove that Coles was a member of a drug-trafficking conspiracy in violation
of 21 U.S.C. § 846, the government needed to establish “(1) a shared unity of purpose
between the alleged conspirators, (2) an intent to achieve a common goal, and (3) an
agreement to work together toward that goal.” United States v. Bailey, 840 F.3d 99, 108
(3d Cir. 2016). The third element is the conspiratorial agreement. United States v.
Tyson, 653 F.3d 192, 206 (3d Cir. 2011).
10
To that end, Coles’s trial counsel argued that Coles was only captured speaking
on “four calls out of … a thousand [recorded] sessions” (19-2590 App at 654), and those
calls did not discuss the particulars of the proposed drug transaction. Coles’s trial
counsel also argued that the jury should reject the government’s contention that Coles
was more involved within the conspiracy due to supposed references by other
conspirators to him and communications he had with Daniel that were not captured.
7
For completeness, we will address two additional points. 11 First, Coles obliquely
references that his sentencing counsel brought to the District Court’s attention that Coles
had one or more proffer sessions with the government, when he may have discussed the
possibility of a guilty plea. 12 But, as we have explained, we give the District Court “great
deference” in making the factual determination of acceptance of responsibility given its
“unique position” to evaluate the circumstances surrounding whether Coles clearly
accepted responsibility. United States v. Barr, 963 F.2d 641, 657 (3d Cir. 1992) (quoting
U.S.S.G. § 3E1.1 app. note 5). Given Coles so clearly challenged his factual guilt, the
fact that he had meetings with the government that apparently came to nothing does not
provide a basis for finding the District Court erred, let alone clearly erred.
Second, Coles suggests that his sentencing counsel argued he had demonstrated
acceptance of responsibility due to his good conduct and efforts at rehabilitation while
incarcerated before sentencing. That is simply not so. Coles’s sentencing counsel made
that argument to obtain a downward variance. And Coles, indeed, received a variance of
52 months below the guidelines range as understood by the District Court, relying in part
on Coles’s pre-sentencing efforts while incarcerated. Since Coles did not raise this as a
11
Sentencing counsel did not represent Coles at trial and was ostensibly relying on
her review of the record for these assertions but cited nothing to show he did not factually
contest his guilt.
12
The government indicates that any such meeting would have been off-the-record
and required them to prove “Coles[’s] guilt at trial without the use of his statements”
during that meeting. (Answering Br. at 25 n.15.) Thus, the government argues “an
admission made under this arrangement hardly establishes acceptance of
responsibility[.]” (Id.)
8
basis for acceptance of responsibility before the District Court, he would need to
demonstrate the more stringent plain error standard has been satisfied. 13 See United
States v. Kwasnik, 55 F.4th 212, 217 (3d Cir. 2022) (explaining that plain error review
applies to such an unpreserved argument). He has made no such argument. Even if he
had, there simply is no plain error here in light of his having challenged his factual guilt.
B. Coles Is A Career Offender Under The Sentencing Guidelines
Coles argues that the District Court erred in applying the career offender
enhancement to him under U.S.S.G. § 4B1.1 because he believes that sentencing counsel
did not have “the case numbers so that [his sentencing counsel] could challenge[] them as
qualifying predicate offenses under the career offender Guideline.” (Pro Se Opening Br.
at 17.) As relevant here, application of the career offender guideline requires that the
defendant have “at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a). Coles’s assertion about a lack of
identifying information about his earlier convictions is simply wrong; the case numbers
appear in his PSR. 14 Moreover, the broader contention that the Court’s application of the
13
“To satisfy the rigorous plain-error standard, a defendant must show that (1) the
district court erred, (2) the district court’s error was plain ‒ obvious under the law at the
time of the error, and (3) the error affected his substantial rights ‒ meaning, the
proceeding’s outcome. When all three elements are satisfied, we have discretion to
remedy the error only if it ‘seriously affects the fairness, integrity, or public reputation of
judicial proceedings.’” United States v. Kwasnik, 55 F.4th 212, 217 (3d Cir. 2022)
(citation omitted).
Both cases are from Delaware County’s Court of Common Pleas in
14
Pennsylvania. The case numbers are CP-23-CR-0003302-2004 and CP-23-CR-0007578-
2006.
9
career offender classification was made in error fails for the two reasons offered by the
government. First, Coles waived that argument and, second, even if he had not, plain
error review would apply and cannot be satisfied because he was properly classified as a
career offender.
III. CONCLUSION
For the foregoing reasons, we will affirm.
10