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United States Court of Appeals, Second Circuit.

UNITED STATES of America, Appellee, v. Kevin COOLBAUGH, Defendant-Appellant.

No. 18-654-cr

Decided: March 15, 2019

PRESENT: ROBERT A. KATZMANN, Chief Judge, DEBRA ANN LIVINGSTON, CHRISTOPHER F. DRONEY, Circuit Judges. For Defendant-Appellant: Elizabeth M. Johnson, Law Offices of Elizabeth M. Johnson, New York, NY. For Appellee: Miroslav Lovric, Carina H. Schoenberger, Assistant United States Attorneys, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY.


Kevin Coolbaugh appeals from a judgment of the United States District Court for the Northern District of New York (McAvoy, J.) entered March 6, 2018 sentencing him principally to 36 months’ imprisonment for violating the terms of his supervised release. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Coolbaugh argues that his sentence is procedurally unreasonable because the district court incorrectly determined that his New York State conviction for unlawful manufacture of methamphetamine in the third degree in violation of N.Y. Penal Law § 220.73(1) constituted a Grade A violation of the terms of his supervised release pursuant to § 7B1.1(a)(1) of the United States Sentencing Guidelines (the “Guidelines” or “U.S.S.G.”). According to Coolbaugh, the district court did not make any findings as to his actual conduct but merely concluded that his New York offense constituted “manufacture of a controlled substance” as defined by U.S.S.G. § 4B1.2(b) even though N.Y. Penal Law § 220.73(1) can be violated by someone who possessed no controlled substance as defined under federal law.

We need not reach the merits of Coolbaugh’s argument because Coolbaugh waived it by affirmatively representing to the district court that his underlying offense conduct constituted a Grade A violation under the sentencing guidelines. See App. at 61 (informing the district court that the “conduct that [Coolbaugh] admitted to in county court encompasses allegation number one, and that [Coolbaugh] will be prepared to admit to allegation number one here as being that he admitted he committed that conduct, same as he admitted in county court, and that ․ then the Court would be free to sentence him under an A violation”); United States v. Spruill, 808 F.3d 585, 597 (2d Cir. 2015) (waiver exists where a “defendant, through counsel, acted intentionally in pursuing, or not pursuing, a particular course of action”). Coolbaugh cannot now argue that the district court should have adduced further evidence regarding his conduct to determine whether or not his conduct qualified as a Grade A violation.

We have considered all of Coolbaugh’s remaining contentions on appeal and have found in them no basis for reversal. Accordingly, the judgment of the district court is AFFIRMED.

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