UNITED STATES OF AMERICA v. JEFFREY BRIAN COHEN
U.S. Court of Appeals for the Fourth Circuit, King, April 25, 2018,
Sentencing – A defendant who receives a sentence below the un-enhanced total he could have received has not had his “substantial rights” affected if one of the sentence enhancements should not have applied.
Facts:
Jeffrey Cohen pled guilty to wire fraud and related charges stemming from an insurance scam that caused losses exceeding $126,000,000.
As part of that guilty plea, Cohen agreed to “waive the right to appeal from your convictions . . . and whatever sentence is imposed, and you agree to withdraw all pending motions and not to file any further motions.”
Cohen was sentenced to 444 months in prison (“substantially less than the Guidelines maximum of 660 months”).
Cohen then appealed on a wide variety of issues, some filed by his appellate attorney and 17 filed by himself outside of his attorney.
One of the issues Cohen raised that was not brought up at trial was that he was charged with making a false statement to an insurance regulator (carrying a 10-year maximum) with an enhancement (raising the maximum to 15 years) due to the statement jeopardizing the “soundness” of the insurer. The facts in the plea, however, did not show that the enhancement should have applied.
Held: The Fourth Circuit dismissed most of his appeals as a violation of his plea agreement or because he filed them without his attorney or because he failed to raise them earlier. The sentence enhancement was denied because, even if it applied, that would have lowered the total sentence guidelines to 600 months. Because this is still higher than what he was actually sentenced to, the Fourth Circuit refused to consider it as “plain error.”
Appeal Waiver – An appeal waiver does not preclude at least three types of claims: (1) challenges that a sentence exceeds the statutory maximum or is based upon a constitutionally infirm factor such as race; (2) appeals from the denial of a motion to withdraw guilty pleas due to
ineffective assistance of counsel; and (3) a contention that “proceedings following entry of the guilty plea were conducted in violation of his Sixth Amendment right to counsel.
Appeal Waiver – An Apprendi issue can fall outside of an appeal waiver