United States v. Cory Cadieux

U
                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 21a0131n.06

                                         Case No. 20-1689

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                                                   Mar 15, 2021
 UNITED STATES OF AMERICA,                         )                           DEBORAH S. HUNT, Clerk
                                                   )
         Plaintiff-Appellee,                       )
                                                   )          ON APPEAL FROM THE UNITED
 v.                                                )          STATES DISTRICT COURT FOR
                                                   )          THE WESTERN DISTRICT OF
 CORY KARL CADIEUX,                                )          MICHIGAN
                                                   )
         Defendant-Appellant.                      )                       OPINION




BEFORE: STRANCH, LARSEN, and NALBANDIAN, Circuit Judges.

       NALBANDIAN, Circuit Judge. When Cory Cadieux called the “Free Beer and Hot

Wings” morning radio show shortly after pleading guilty to drug-trafficking charges, he said he

was “just [a] weed man.” (R. 173, Presentencing Report, PageID 330.) But in many ways Cadieux

was also the model cooperative defendant. Just days after being charged, he told the government

that he would cooperate with them. And he did just that by giving the government information,

testifying before a grand jury, and pleading guilty at the earliest available opportunity.

       Because he was so cooperative in so many ways, Cadieux now argues that the district court

erred in calculating his guidelines range when it refused to grant a reduction for acceptance of

responsibility and included an enhancement for obstruction of justice. But because Cadieux’s

conduct while out on bond supports the district court’s decision, we AFFIRM.
No. 20-1689, United States v. Cadieux


                                                  I.

       Cadieux was involved in a Michigan conspiracy to distribute marijuana in which he grew

and then sold at least 100 pounds of processed marijuana over the course of two years to Andrew

Bravo who then sold the drugs to others. Cadieux was arrested and charged in December 2019 for

his role in this drug-trafficking conspiracy.

       He was very cooperative in the case against him. Shortly after his arrest, he gave the

government information and testified before a grand jury. And after the court released him on

bond, Cadieux entered into a plea agreement and pled guilty to conspiracy to manufacture,

distribute, and possess with intent to distribute 50 kilograms or more of marijuana.

       While out on bond, however, Cadieux also made some poor choices. First, he violated his

conditions of release when he ate a marijuana brownie, tested positive for marijuana three times,

and took two Adderall pills prescribed to someone else. Second, he discussed details of his

pending criminal investigation on a local radio show, “Free Beer and Hot Wings,”1 after the hosts

asked listeners about the easiest money they had ever made. Cadieux told the hosts that he had

made about three million dollars in past three years growing and selling marijuana.                He

acknowledged that he was going to prison for it. But he said “it was worth it” because he was only

going to prison for 15 to 24 months, and he could keep the money he made because he was “good

at hiding” it. (R. 173, Presentencing Report, PageID 331.) He told them his plan was to “get out

and do it again,” but he said that the next time he was “gonna do it legally . . . but in [his] wife’s

name” because he couldn’t “do it in [his] name no more.” (First Call.) One of the hosts responded,

“yeah, you’ll be a felon . . . .” (Id.) Third, after realizing the call had been a mistake, Cadieux

called again and asked the show to “dump a cup of coffee on the sound board and get rid of the



       1
           See https://www.freebeerandhotwings.com/.


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No. 20-1689, United States v. Cadieux


call” because the call had upset his attorney. (R. 185, Sentencing Hearing, PageID 597.) He

offered to pay for a replacement.

       After Cadieux’s call to “Free Beer and Hot Wings,” the government investigated Cadieux’s

concealment of drug money. It “identified significant sums of unexplained cash hid[den] in his

bank accounts.” (Id. at 602.) And Cadieux agreed to voluntarily forfeit $75,000, which the

government believed more accurately represented his drug profits than Cadiux’s statements on the

air.

       Considering Cadieux’s behavior on bond, probation’s presentence report (PSR)

recommended an enhancement for obstruction of justice and refused to recommend a reduction

for acceptance of responsibility. Cadieux objected, asserting that he was entitled to an acceptance-

of-responsibility reduction and should not be saddled with an obstruction-of-justice enhancement.

In response, the government disagreed with probation’s recommendation to deny the

responsibility-acceptance reduction, but it agreed with the recommendation to apply the

obstruction-of-justice enhancement.

       The sentencing court rejected both of Cadieux’s objections, adopting the PSR’s

recommendations concerning acceptance of responsibility and obstruction of justice. It found that

Cadieux was not entitled to the acceptance-of-responsibility reduction for two reasons: 1)

Cadieux’s statements on the radio show indicating his intent to “go right back to it” coupled with

his attempts to destroy the recording and 2) Cadieux’s continued drug use in violation of bond

conditions. (Id. at 609-11.) It found the obstruction enhancement appropriate because “the phone

calls were relevant for sentencing”; it was particularly troubled by “the request of the radio station

to ditch the tape.” (Id. at 610.) The court sentenced him to 37 months.




                                                  3
No. 20-1689, United States v. Cadieux


       On appeal, Cadieux challenges the district court’s denial of the acceptance-of-

responsibility reduction under U.S.S.G. § 3E1.1 and its application of the obstruction enhancement

under U.S.S.G. § 3C1.1.

                                                II.

       There is no clear consensus in our cases about what standard of review applies in appeals

challenging the application of either guideline. United States v. Thomas, 

933 F.3d 605

, 608-11

(6th Cir. 2019). Some of our cases say that de novo review applies, while others say that a more

deferential standard does. See

id. (providing a detailed

description of the mixed signals embedded

in our caselaw). Because Cadieux’s arguments fail even under de novo review (the most favorable

standard to him), we “leave resolution of the standard of review for another day.”

Id. at 610. III.

       Cadieux first argues that the district court erred in denying him an acceptance-of-

responsibility reduction under U.S.S.G. § 3E1.1, which provides for a two or three level reduction

“[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.”

Id. Cadieux points to

the many ways that he rapidly cooperated with the government after his arrest as evidence

of his acceptance of responsibility, including giving information to the government, testifying

before a grand jury, and pleading guilty. And he says that after release from jail he stopped

growing marijuana and had no contact with Bravo.

       Taken in isolation, this behavior no doubt supports Cadieux’s contention that he was

entitled to a § 3E1.1 reduction. Indeed, “[a]n acceptance of responsibility adjustment is generally

awarded to a defendant who admits guilt at a timely-entered guilty plea proceeding.” United States

v. Truman, 

304 F.3d 586

, 592 (6th Cir. 2002); see also U.S.S.G. § 3E1.1, cmt. n.3 (“Entry of a

plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct




                                                4
No. 20-1689, United States v. Cadieux


comprising the offense of conviction . . . will constitute significant evidence of acceptance of

responsibility . . . .”).2 But Cadieux’s focus on his actions consistent with acceptancy of

responsibility minimizes his conduct that was not.

       While conduct like pleading guilty early supports the adjustment, that conduct may be

outweighed by “conduct clearly demonstrated in the record that is inconsistent with the defendant’s

specific acknowledgment of responsibility.” 

Truman, 304 F.3d at 592

. And that is the case here.

       Although Cadieux cooperated with the government at virtually every turn leading up to his

guilty plea, he also called into a radio show while out on bond and said that the prison sentence he

expected “was worth it” because he was “good at hiding [his] money.” (R. 173, Presentencing

Report, PageID 331.) And he said he planned to “get out and do it again.” (Id.) True, he said he

would do it legally next time. (Id.) But immediately thereafter he said he would need to do it in

his wife’s name because he could not “do it in [his] name no more,” presumably based on his

understanding of the impact of his felony conviction on his ability to do so and belying his assertion

that his future conduct would be lawful. (First Call.) Making matters worse, he later called again

and asked the show to delete the previous call by having the DJ spill coffee on the soundboard.

He also violated his conditions of release when he ate a marijuana brownie, tested positive for

marijuana three times, and took two Adderall pills prescribed to someone else.

       This conduct undercuts Cadieux’s claim for the reduction. In United States v. Castillo-

Garcia, we held that “[l]ack of true remorse is a valid consideration under § 3E1.1.” 

205 F.3d 887

, 889 (6th Cir. 2000); see also United States v. Morrison, 

983 F.2d 730

, 735 (6th Cir. 1993)

(“[T]rue remorse for specific criminal behavior is the issue.”). And Cadieux’s statements on the



       2
          It bears repeating that guideline “[c]ommentary binds courts only ‘if the guideline which
the commentary interprets will bear the construction.’” United States v. Havis, 

927 F.3d 382

, 386
(6th Cir. 2019) (en banc) (quoting Stinson v. United States, 

508 U.S. 36

, 46 (1993)).


                                                  5
No. 20-1689, United States v. Cadieux


air evince a “[l]ack of true remorse.” 

Castillo-Garcia, 205 F.3d at 889

. Not only did he say that

committing the crime “was worth it” because he had made millions, he also said he wanted to

produce and distribute marijuana again.3 (R. 173, Presentencing Report, PageID 331.) These

statements are inconsistent with remorse and thus acceptance of responsibility.

       Even assuming that the initial call to the radio station is not enough in isolation to justify

withholding the reduction, his attempt to cover up his imprudent call also supports the district

court’s decision. Because of the call, the government began to investigate possible concealment

of drug proceeds, and Cadieux ultimately agreed to forfeit $75,000. The call viewed along with

the financial investigation and forfeiture suggests that Cadieux may not have been completely

forthright before the call, realized that, and desired to keep bad information off the government’s

radar. Minimization like this appears to be, at the very least, inconsistent with acceptance of

responsibility. See U.S.S.G. 3E1.1, cmt. n.3 (noting that “truthfully admitting the conduct

comprising the offense of conviction” supports the reduction). Furthermore, the application notes

to the guidelines explain that “[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing

or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted

responsibility for his criminal conduct.” U.S.S.G. 3E1.1, cmt. n.4. And as explained below in

Part IV, Cadieux’s second call to the radio show triggers the § 3C1.1 enhancement.



       3
          That Cadieux stated that he intended to distribute legally in the future does not greatly
help his cause. First, distribution of marijuana remains a felony under federal law. See 21 U.S.C.
§ 841(a)(1). Next, immediately after saying that he intended to distribute legally, he said he would
set up a marijuana operation in his wife’s name presumably based on his belief about his felony’s
impact on his ability to distribute marijuana under state law. And this suggests that he planned to
break both state and federal law again. Moreover, in Castillo-Garcia, we upheld a district court’s
decision in a similar case where the defendant who was being deported stated that he intended to
return after deportation even though the defendant also stated, “[a]fter a pause, . . . that he would
try to get permission” 

first. 205 F.3d at 889

n.2. And regardless of his future intentions, the
statement that his crime was “worth it” because of massive financial gains is the opposite of
remorse and is likely enough to support the district court’s decision in isolation. (First Call.)


                                                 6
No. 20-1689, United States v. Cadieux


       But wait, there is even more. Assuming all the above is insufficient, Cadieux’s drug use

out on bond also supports the district court’s decision. The guideline notes state that “voluntary

termination or withdrawal from criminal conduct or associations” is an “appropriate

consideration[]” in determining acceptance of responsibility. U.S.S.G. § 3E1.1, cmt. n.1(B).

Relying on this language, we have explained that persisting in “related” criminal conduct is

inconsistent with the § 3E1.1 reduction. 

Morrison, 983 F.2d at 734-35

. And “where a defendant

is convicted of a crime involving drugs, such as conspiracy to distribute, and later tests positive

for use of that drug while on bond, we have found the offense of conviction and post-plea conduct

sufficiently related to deny the acceptance-of-responsibility reduction.” United States v. Searer,

636 F. App’x 258, 260 (6th Cir. 2016); see also United States v. Walker, 

182 F.3d 485

, 489 (6th

Cir. 1999) (holding that “the district court properly found that Walker failed to accept

responsibility for his criminal conduct (i.e., conspiracy to distribute cocaine)” given his cocaine

use on bond). Cadieux tested positive three times for marijuana, ate a marijuana brownie, and took

two Adderall pills prescribed to someone else while out on bond. This related criminal conduct

cuts against his acceptance of responsibility.

       The district court got it right. The evidence of acceptance of responsibility is outweighed

by Cadieux’s inconsistent conduct while out on bond.4


       4
         Two of Cadieux’s acceptance-of-responsibility arguments remain unaddressed. First, in
his reply brief he argues that his plea agreement did not abrogate his freedom of speech and that
his speech, imprudent as it may have been, is “too ephemeral to support a factual finding” that he
did not accept responsibility. Cadieux forfeited this argument by raising it for the first time in his
reply. See Island Creek Coal Co. v. Wilkerson, 

910 F.3d 254

, 256 (6th Cir. 2018) (“Time, time,
and time again, we have reminded litigants that we will treat an ‘argument’ as ‘forfeited when it
was not raised in the opening brief.’” (citations omitted)).
       Second, he argues that we should ignore the government’s arguments on appeal because
the government took a contrary position below. Fair enough. Waiver bars litigants from taking
contrary positions on appeal. See Berkshire v. Beauvais, 

928 F.3d 520

, 530 (6th Cir. 2019)
(explaining a party “waives an argument by, for instance, . . . stating that a proposition is not


                                                  7
No. 20-1689, United States v. Cadieux


                                                 IV.

       Cadieux next argues that the district court erroneously applied the obstruction-of-justice

enhancement under U.S.S.G. § 3C1.1 based on his second call. Section 3C1.1 calls for a two-level

enhancement if the defendant “attempted to obstruct or impede[] the administration of justice with

respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2)

the obstructive conduct related to . . . the defendant’s offense of conviction and any relevant

conduct.” The guideline notes provide a non-exhaustive list of examples that includes “directing

or procuring another person to destroy or conceal evidence that is material to . . . [a] judicial

proceeding . . . or attempting to do so.”

Id., cmt. n.4(D). The

notes define material evidence as

“evidence, fact, statement, or information that, if believed, would tend to influence or affect the

issue under determination.”

Id., cmt. n.6. So

in the sentencing context, that means that evidence

is material if it would “‘tend to influence or affect’ a sentencing decision (such as the proper prison

term).” 

Thomas, 933 F.3d at 610

(quoting U.S.S.G. § 3C1.1, cmt. n.6).

       Cadieux’s second call fits squarely within § 3C1.1. First, the statements on the first call

were material to sentencing. As explained above, when Cadieux first called “Free Beer and Hot

Wings,” he made statements wildly inconsistent with acceptance of responsibility by stating that

his federal charge and likely sentence were “worth it” because he was “good at hiding” his money.

(R. 173, Presentencing Report, PageID 331.) Those statements were material to sentencing—an

important “issue under determination” at the time of the call under U.S.S.G. § 3C1.1, cmt. n.6—

because they undercut his entitlement to a three-level reduction. Indeed, the statements did



disputed, or stating that they are not pressing an argument” (citation omitted)). But even if some
form of that argument could restrict the government here that does not mean that Cadieux simply
wins. He is appealing a district court’s sentencing decision, and we must review that decision on
appeal, not the government’s arguments below. And we hold that the district court made the right
decision on acceptance of responsibility for the reasons explained above.


                                                  8
No. 20-1689, United States v. Cadieux


partially influence sentencing when the court overruled Cadieux’s acceptance-of-responsibility

objection. So contrary to Cadieux’s argument, the phone conversations were important to and did

affect the offense-level calculation. The statements were also relevant to considerations under

18 U.S.C. § 3553. For example, even though some statements were likely exaggerated, the initial

call shed additional light on “the nature and circumstances” and “seriousness of the offense” by

showing that Cadieux may have concealed drug proceeds.

Id. § 3553(a). And

Cadieux’s bragging

was relevant to crafting a sentence that would “afford adequate deterrence to criminal conduct”

and the need “protect the public from further crimes of the defendant.”

Id. So Cadieux “attempted

to obstruct or impede[] the administration of justice with respect to

. . . sentencing” when he tried to have evidence “related to . . . relevant conduct” destroyed.

U.S.S.G. § 3C1.1. Contrary to Cadieux’s argument, § 3C1.1 does not require “conduct directly

related to information provided to any person serving in an official capacity.” (Appellant Br. at

25.) Indeed, his actions closely track an example of conduct triggering the enhancement provided

in the guideline notes; his second call was an “attempt[]” to “direct[] . . . another person to destroy

or conceal evidence material to . . . [a] judicial proceeding.” U.S.S.G. § 3C1.1, cmt. n.4(D). And

Cadieux’s argument that the enhancement was improper because his request was a “not an actual

attempt at all”—because spilling coffee on a soundboard could not destroy a recording—is not

well taken. (Appellant Br. at 26.) Section 3C1.1. does not limit its reach to skilled attempts at

obstruction.

                                                  V

       Because Cadieux is not entitled to the acceptance-of-responsibility reduction and the

district court correctly applied the obstruction enhancement, we AFFIRM.




                                                  9

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