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Guard Properly Convicted, Sentenced for Extorting Prisoners

The U.S. Fourth Circuit Court of Appeals upheld the sentence of a prison
guard convicted of extorting prisoners.

William D. Coger, a prison guard in West Virginia, was convicted of extorting money and
favors from prisoners in the amount of $90,104. He was sentenced to forty-
one months and appealed both the conviction and sentence.

Coger argued he should have been allowed to plead entrapment based on
certain audio tape evidence. The district court denied that defense. The
appeals court held that Coger cited no instance in the record showing
entrapment by the government, and found the defense was properly denied.
The appeals court also upheld a two-level adjustment to Coger's sentence
base under the United States Sentencing Guidelines (USSG) § 3C1.1. At
trial, Coger attempted to submit false documents but his defense counsel
refused. Nevertheless, the district court properly considered this
attempted obstruction of justice in its upward departure.

Citing USSG § 1B1.3(a)(2), the appeals court affirmed the district court's
consideration of evidence surrounding count 4 of Coger's indictment, on
which count Coger was acquitted. The district court used this acquitted
conduct to set Coger's extortion at $90,104, and raised his offense base
six levels. Though acquitted of the charge, a preponderance of the
evidence showed Coger's guilt, and it was not plain error to consider the
acquitted conduct. The court also held, contrary to Coger's argument, that
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(200), was inapplicable.

The district court's conviction and sentence were affirmed. This case is
published in the Federal Appendix and is subject to rules governing
unpublished cases. See: United States v. Coger, 58 Fed.Appx. 575 (4th Cir.

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Related legal case

United States v. Coger

[U] United States v. Coger, 58 Fed.Appx. 575 (4th Cir. 01/22/2003)


[2] No. 02-4568

[3] 58 Fed.Appx. 575, 2003

[4] January 22, 2003


[6] 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)

[7] Counsel

[8] Matthew A. Victor, VICTOR, VICTOR & Helgoe, L.L.P., Charleston, West Virginia, for Appellant.

[9] Thomas E. Johnston, United States Attorney, Zelda E. Wesley, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee.

[10] Before Motz and Gregory, Circuit Judges, and Hamilton, Senior Circuit Judge.

[11] The opinion of the court was delivered by: Per Curiam


[13] Submitted: December 17, 2002

[14] Affirmed by unpublished per curiam opinion.

[15] Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).


[17] 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).

[18] 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 elements: (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 evidence, "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 government overreaching and conduct sufficiently excessive to implant a criminal design in the mind of an otherwise innocent party. Solicitation, by contrast, is the provision of an opportunity to commit a criminal act." Daniel, 3 F.3d at 778.

[19] 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 demonstrating that the district court erred in denying him the use of the entrapment defense.

[20] Under U.S. Sentencing Guidelines Manual § 3C1.1 (2000), a defendant's base offense level will be increased two levels if he willfully obstructed or impeded, or attempted to obstruct or impede, the administration 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 documents or records during an official investigation or judicial proceeding qualifies as obstructive conduct. USSG § 3C1.1, comment. (n. 4(c)). In the district court, Coger argued that he did not obstruct justice because the documents were not submitted at trial. Based on this colloquy, however, there is sufficient evidence to show Coger presented 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).

[21] 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) (citations omitted).

[22] 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 allowing acquitted conduct to be considered during sentencing would violate 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 Amendment 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).

[23] 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.