United States v. Jack Coppenger, Jr.
775 F.3d 799
6th Cir.2015Background
- Coppenger pled guilty to conspiracy to commit mortgage fraud; plea agreement limited government’s sentencing recommendation to within the advisory range.
- District court calculated a Guidelines range of 78 to 97 months based on substantial assistance and offense level 28, criminal history I.
- Court upwardly varied 23 months using confidential, undisclosed information from co-conspirators’ presentence reports to describe the straw buyers as harmed and deserving punishment.
- Coppenger’s scheme involved a $13.2 million Panama City purchase with 33 straw buyers and mortgage officers; straw buyers falsely represented residence, down payments, and personal responsibility, with funds ultimately returned to Coppenger.
- Loss exceeded $32 million when mortgage payments stopped; thirty-five co-conspirators pled guilty; Coppenger later cooperated with authorities.
- Coppenger challenged both substantive and procedural aspects of the sentence, leading the court to vacate and remand for resentencing to address Rule 32(i)(1)(B) deficiencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether upward variance based on co-conspirators’ impact was permissible | Coppenger argues victimage analysis was impermissible to justify variance | Coppenger contends district court relied on improper victimization of co-conspirators | Procedural/ Substantive error; not plainly improper but affected due process (vacate for remand) |
| Whether Rule 32(h) notice requirements applied to variances | Irizarry controls; no advance notice needed for variance | Rule 32(i)(1)(B) requires opportunity to comment on information used, even if not in report | Plain error found; denial of meaningful opportunity to respond; remand ordered |
| Whether error requires reversal or can be cured on remand | Error affected substantial rights; prejudice shown | Harmless or curable on remand | Remand for resentencing with proper procedures; not harmless error |
Key Cases Cited
- Irizarry v. United States, 553 U.S. 708 (U.S. 2008) (notice requirement applies to departures, not variances, but may require response opportunity when surprise occurs)
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (abuses of discretion standard for sentencing; deferential review)
- Rossi, 422 F. App’x 425 (6th Cir. 2011) (recognizes potential relief where surprise prejudices the defendant under Rule 32(i)(1)(B))
- Hamad, 495 F.3d 241 (6th Cir. 2007) (confidential sentencing information; nondisclosure can render sentence unreasonable)
- Roberge, 565 F.3d 1005 (6th Cir. 2009) (due process concerns with information relied on at sentencing)
- Bostic, 371 F.3d 865 (6th Cir. 2004) (upward variances discussed in context of §3553(a) factors)