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United States v. Coger , 58 F. App'x 575 ( 2003 )


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  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                              No. 02-4568
WILLIAM D. COGER, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CR-01-40)
Submitted: December 17, 2002
Decided: January 22, 2003
Before MOTZ and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Matthew A. Victor, VICTOR, VICTOR & HELGOE, L.L.P.,
Charleston, West Virginia, for Appellant. Thomas E. Johnston,
United States Attorney, Zelda E. Wesley, Assistant United States
Attorney, Clarksburg, West Virginia, for Appellee.
2                       UNITED STATES v. COGER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
William D. Coger appeals from his conviction and forty-one month
sentence for using his employment as a correctional officer to extort
money and other favors from prison inmates, in violation of
    18 U.S.C. § 872
     (2000).
Coger argues the district court erred in granting the Government’s
motion in limine to prevent him from using the entrapment defense.
The district court’s refusal to give an entrapment instruction is a legal
issue reviewed de novo. United States v. Phan,
    121 F.3d 149
    , 154
(4th Cir. 1997). Entrapment is an affirmative defense that has two ele-
ments: (1) government inducement and (2) lack of predisposition by
the defendant to commit the crime. United States v. Sligh,
    142 F.3d 761
    , 762 (4th Cir. 1998). The defendant must first produce some evi-
dence, "more than a scintilla," that the government induced him to
commit the crime.
    Id.
     (quoting United States v. Daniel,
    3 F.3d 775
    ,
778 (4th Cir. 1993)). "‘Inducement’ . . . involves elements of govern-
ment overreaching and conduct sufficiently excessive to implant a
criminal design in the mind of an otherwise innocent party. Solicita-
tion, by contrast, is the provision of an opportunity to commit a crimi-
nal act." Daniel,
    3 F.3d at 778
    .
Coger contends he demonstrated inducement through audio tapes
that would support an entrapment defense at trial. However, Coger
does not cite a single instance in the record where the Government
attempted to entrap him. Thus, he has not met his burden of demon-
strating that the district court erred in denying him the use of the
entrapment defense.
Under U.S. Sentencing Guidelines Manual § 3C1.1 (2000), a defen-
dant’s base offense level will be increased two levels if he willfully
obstructed or impeded, or attempted to obstruct or impede, the admin-
UNITED STATES v. COGER                          3
istration of justice during the course of the investigation, prosecution,
or sentencing of the instant offense. USSG § 3C1.1, comment. (n.2).
Producing or attempting to produce false, altered, or counterfeit docu-
ments or records during an official investigation or judicial proceed-
ing qualifies as obstructive conduct. USSG § 3C1.1, comment. (n.
4(c)). In the district court, Coger argued that he did not obstruct jus-
tice because the documents were not submitted at trial. Based on this
colloquy, however, there is sufficient evidence to show Coger pre-
sented false documents to his counsel, seeking to obstruct justice.
Hence, it was not clearly erroneous for the court to enhance Coger’s
offense level for obstruction of justice. See United States v. Puckett,
    61 F.3d 1092
    , 1095 (4th Cir. 1995).
Coger argues that because he was acquitted of Count 4, he should
not be sentenced for that conduct and given a six-level adjustment for
extortion based on the $90,104 figure. As Coger did not raise this
argument below, we review for plain error. Fed. R. Crim. P. 52(b). To
establish plain error, (1) there must be an error; (2) the error must be
plain; and (3) the error must affect substantial rights. The Court may
then exercise its discretion to notice the error only if the error would
seriously affect the fairness, integrity, or public reputation of judicial
proceedings. United States v. Olano,
    507 U.S. 725
    , 732 (1993) (cita-
tions omitted).
USSG § 1B1.3(a)(2) requires the court to consider all such conduct
done in connection with any larger course of criminal conduct of
which the offense of conviction was a part. Coger argues that allow-
ing acquitted conduct to be considered during sentencing would vio-
late due process. However, courts can consider acquitted conduct, so
long as the conduct is proven by a preponderance of the evidence.
United States v. Watts,
    519 U.S. 148
     (1997); United States v. Carter,
    300 F.3d 415
    , 432 (4th Cir. 2002). Coger looks to Apprendi v. New
Jersey,
    530 U.S. 466
     (2000), arguing that his Fifth and Sixth Amend-
ment rights have been violated because he was imprisoned on the
basis of acquitted conduct. However, Apprendi is not implicated here,
as the increased sentence Coger received based on acquitted conduct
did not exceed the statutory maximum for the underlying offense of
extortion. See United States v. Kinter,
    235 F.3d 192
    , 201 (4th Cir.
2000).
4                     UNITED STATES v. COGER
Therefore we affirm Coger’s conviction and sentence. We dispense
with oral argument because the facts and legal contentions have been
adequately presented in the materials before the court.
AFFIRMED