PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 15-4780


UNITED STATES OF AMERICA,

                    Plaintiff – Appellee,

             v.

JEFFREY BRIAN COHEN,

                    Defendant – Appellant.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
William D. Quarles Jr., District Judge. (1:14-cr-00310-WDQ-1)


Argued: January 25, 2018                                       Decided: April 25, 2018
                               Amended: April 25, 2018


Before KING, FLOYD, and THACKER, Circuit Judges.


Dismissed in part and affirmed in part by published opinion. Judge King wrote the
opinion, in which Judge Floyd and Judge Thacker joined.


ARGUED: Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Clarksburg, West Virginia, for Appellant. Harry Mason Gruber, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Joyce K. McDonald, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
KING, Circuit Judge:

       Jeffrey Brian Cohen appeals the criminal judgment entered against him in the

District of Maryland in December 2015. Cohen, who represented himself pro se during

most of the protracted criminal proceedings in the district court, pleaded guilty in June

2015 to the offenses of wire fraud, aggravated identity theft, making false statements to

insurance regulators, and obstruction of justice. Those offenses were among thirty-one

charges lodged against him by the grand jury, all stemming from a massive insurance

scam that caused losses exceeding $100,000,000. Cohen was sentenced to an aggregate

term of 444 months in prison. Notwithstanding the appeal waiver in his plea agreement

with the United States Attorney, Cohen pursues this appeal. The issues we must resolve

include the applicability of Cohen’s appeal waiver, plus a right-to-counsel contention

relating to his sentencing. As explained below, we dismiss in part and affirm in part.



                                            I.

                                            A.

       During the relevant period, Cohen was the president and chairman of an entity

named Indemnity Insurance Corporation RRG, and he had previously controlled its

predecessor, Indemnity Insurance Corporation of DC, RRG (collectively “IIC”). IIC

marketed and sold general liability and other types of insurance to individuals and

businesses in the entertainment industry. As such, IIC was obliged to submit quarterly

and yearly financial statements to insurance regulators. Such regulators are responsible

for protecting policyholders and the public through their oversight of the insurance

                                            2
industry and by making certain that insurers such as IIC are able to perform their

coverage obligations.

       Beginning in 2008 and continuing through at least 2013, Cohen engaged in a

multi-faceted scheme to defraud IIC policyholders and the public by misrepresenting the

financial status of IIC.   In furtherance thereof, Cohen created a web of false and

fraudulent financial documents, including bank statements, letters of credit, reinsurance

documents, financial statements, and account balances. In carrying out his fraud scheme,

Cohen sent misleading and fraudulent representations to auditing firms and others,

seeking and securing favorable opinions on the financial standing of IIC. Cohen then

touted IIC’s false financial standing and inflated ratings to current and potential

policyholders. As a result of the scheme, IIC received more than $100,000,000 in

insurance premiums.

       On June 24, 2014, after ferreting out Cohen’s fraud scheme and related criminal

activities, the FBI and the federal prosecutors in Maryland secured an indictment against

Cohen from the grand jury in Baltimore. According to the authorities, that indictment

and Cohen’s arrest upended his intentions to harm public officials.         During their

investigation, federal agents discovered that Cohen had purchased such items as a long

range tactical rifle, plus ammunition and a night vision device.        The agents also

ascertained that Cohen had researched homemade bombs, purchased ammonium nitrate,

and made audio recordings about plans to attack public officials. As a result, Cohen has

been in federal custody since his arrest in June 2014.



                                             3
       The third superseding indictment of December 2, 2014 — the operative indictment

in this appeal — charged Cohen with thirty-one offenses (the “Indictment”). J.A. 68-92. 1

According to the Indictment, Cohen transmitted by wire a vast number of false and

misleading communications in furtherance of his fraud scheme. Cohen also fraudulently

used the identities of other persons to lend credibility to false financial documents. To

conceal the actual financial condition of IIC, Cohen presented fraudulent financial

statements to insurance regulators in both Delaware and the District of Columbia. As his

fraud scheme began to unravel, Cohen threatened witnesses in an endeavor to obstruct

their communications of his wrongdoing to the authorities. The Indictment exposed

Cohen to the forfeiture of more than $100,000,000.

                                            B.

       Cohen initially retained his defense counsel, but those lawyers withdrew after the

grand jury returned its initial indictment. The district court then appointed the federal

public defender to represent Cohen. In early November 2014, Cohen moved to terminate

his counsel and to represent himself pro se. The public defender then moved to withdraw

from the representation, advising the court that Cohen’s request to represent himself was

unequivocal.




       1
         Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by
the parties in this appeal.


                                             4
       The district court referred the representation motions to a magistrate judge.

During a so-called Faretta hearing, 2 Cohen confirmed to the magistrate judge the

following:

       •      he had studied law and previously represented himself in court;

       •      he understood the charges in the Indictment, the maximum
              permissible penalties, and that the Sentencing Guidelines applied;

       •      he understood that the trial judge could not provide legal advice or
              assist him on how to proceed; and

       •      he knew that the proceedings would be complex, conducted
              according to the rules of evidence and criminal procedure, and that a
              trained lawyer might better represent him.

See J.A. 97-100. Cohen advised the magistrate judge that he had decided to represent

himself voluntarily “after much thought and deliberation.” 

At the hearing’s

conclusion on November 17, 2014, the judge granted the public defender’s motion to

withdraw and authorized Cohen to represent himself pro se. Nevertheless, the judge

appointed a “standby counsel” to assist Cohen’s pro se efforts during the proceedings. 3


       2
        A Faretta hearing draws its name from a 1975 Supreme Court decision relating
to pro se representation in criminal proceedings. Such a hearing seeks to determine
whether the accused, who is seeking to manage his own defense, understands the
consequences of waiving his Sixth Amendment right to counsel and is relinquishing that
right knowingly and intelligently. See Faretta v. California, 

, 835 (1975).
Cohen convinced the magistrate judge that the Faretta criteria had been satisfied.
       3
         In McKaskle v. Wiggins, the Supreme Court sought to define the role of a
standby counsel. See 

, 184 (1984). As explained therein, the standby
counsel’s duties include relieving the judge of the obligation to “explain and enforce
basic rules of courtroom protocol” and assisting the defendant in “overcoming routine
obstacles that stand in the way of the defendant’s achievement of his own clearly
indicated goals.” 

a standby counsel for Cohen, the magistrate judge
(Continued)
                                            

.

       In late November 2014, after the district court authorized his pro se self-

representation, Cohen challenged the pretrial seizures of his assets by the federal

authorities and sought relief therefrom. Cohen asserted, inter alia, that the grand jury had

been rigged and contended that there was no nexus between the alleged offenses and the

seized assets. The government, on the other hand, emphasized that the seizures had been

made pursuant to duly issued warrants and were predicated on judicial findings of

probable cause. On January 22, 2015, the magistrate judge conducted proceedings on

several pending issues, including the seized property questions.          The judge then

recommended the denial of that challenge, concluding that the pretrial seizures had been

properly made. Although Cohen sought reconsideration, the court adopted the magistrate

judge’s recommendation.

                                             2.

       Cohen made other efforts to gain access to the seized assets. In February 2015, he

moved for another hearing on the propriety of those seizures, relying on our decision in




explained that the standby lawyer would not actually defend Cohen in the criminal
proceedings and that the judge would not offer him legal advice. The judge emphasized
that, because Cohen was being detained pending trial, the standby counsel would be
available to answer questions, assist with discovery, and perform other tasks that are
difficult for an accused in custody.


                                             6
United States v. Farmer, 

(4th Cir. 2001). 4 Cohen requested the district

court to rule that the government had restrained his untainted assets without probable

cause, thereby undermining his use of those assets to hire standby counsel of his choice.

Cohen argued that he was entitled to a Farmer hearing because he wanted to terminate

his appointed standby counsel, and he could not afford to hire a standby counsel of his

choice without the seized assets.

       The government opposed Cohen’s Farmer hearing request, explaining that the

asset seizures were supported by probable cause and that Cohen had failed to show that

the seized assets would not be subject to forfeiture should he be convicted.            The

prosecutors emphasized that Cohen had already waived his right to counsel.

Acknowledging that Cohen could change his mind and again request an appointed

lawyer, the prosecutors asked the district court to assess whether Cohen intended to

abandon his pro se status and reassert his right to counsel.        The government thus

suggested that an additional Faretta inquiry would best ensure that Cohen understood his

right to counsel and his waiver of that right.

       Cohen opposed another Faretta hearing being conducted by the district court,

arguing that the prosecutor’s suggestion was simply an effort to “obstruct [his] right to

       4
         In our Farmer decision in 2001, we recognized that, although an accused does
not have a Sixth Amendment right to use illegally procured funds to secure legal
representation, due process requires a pretrial hearing on the propriety of an asset seizure
if the accused can show that a portion of the restrained assets are untainted. To trigger a
Farmer hearing, the defendant must show that he needs the restrained assets to retain a
lawyer of his choice, and that the government seized his untainted assets without
probable cause. See United States v. Farmer, 

, 803-805 (4th Cir. 2001).


                                                 7
self representation.” J.A. 2280. Cohen maintained that the prosecutors had “no right to

question [his] ability to properly defend himself” and that “any further action . . . on [the

Faretta] issue would be a waste of court resources.” 

that he would

continue to represent himself and that he was fully aware of his rights and the risks of

self-representation. 

that, by his Farmer hearing request, he

sought “funds to pay for a new standby counsel” of his choice. 

asserted

that he needed the Farmer hearing because his appointed standby counsel was

“incompetent” and “unprofessional.” 

17, 2015, the magistrate judge authorized Cohen’s standby counsel to

withdraw, but denied his Farmer hearing motion. The judge explained that Cohen had

failed to make a prima facie showing that the seized assets were untainted. When again

asked if he wanted to continue to represent himself, Cohen reconfirmed that position.

Cohen then appealed those rulings to the district court which, in early May 2015,

sustained the magistrate judge and denied the Farmer hearing request. In so ruling, the

court explicitly recognized that Cohen was seeking only to hire his standby counsel, and

emphasized that Cohen was not seeking to retain an attorney to actually defend him. In

the court’s view, the Farmer decision was unavailing for Cohen because, as the Supreme

Court has recognized, there is no constitutional right to a standby counsel of a

defendant’s choosing. See United States v. Cohen, No. 1:14-cr-0310 (D. Md. May 7,

2015), ECF No. 324 at 90 (relying on Mckaskle v. Wiggins, 

, 183 (1984)).




                                             8
On April 20, 2015, the court nevertheless appointed a new standby counsel to assist

Cohen in the district court proceedings. 

.

       On June 1, 2015, Cohen went to trial before a jury in Baltimore. Four days later,

Cohen entered into a plea agreement with the United States Attorney, agreeing to plead

guilty to Counts One, Twenty, Twenty-Four, and Twenty-Eight of the Indictment (the

“Plea Agreement”). J.A. 322-36. Those offenses included wire fraud, in violation of 18

U.S.C. § 1343 (Count One); aggravated identity theft, in violation of 18 U.S.C. § 1028A

(Count Twenty); making false statements to an insurance regulator, in violation of

18 U.S.C. § 1033(a) (Count Twenty-Four); and obstruction of justice, in violation of 18

U.S.C. § 1512(b) (Count Twenty-Eight).            The Plea Agreement contains a fulsome

statement of admitted facts that readily establish Cohen’s guilt on each of the four

offenses. 6


       5
         During the district court proceedings, the court appointed three separate lawyers
to serve as Cohen’s standby counsel. The first two appointees were authorized by the
court to withdraw from their standby service of Cohen. Cohen’s third standby counsel
later served briefly as his first appointed counsel in this appeal.
       6
          By paragraph 6 of the Plea Agreement of June 5, 2015, the United States
Attorney and Cohen recite, “This Office and the defendant understand, agree and
stipulate to the Statement of Facts set forth in Attachment A, which this Office would
prove beyond a reasonable doubt.” The referenced Attachment A, entitled “Cohen
Factual Stipulation,” constitutes five pages of the fifteen-page Plea Agreement. See J.A.
332-36. Cohen therein admitted to a litany of incriminating facts underpinning each of
the offenses to which he pleaded guilty. For example, Cohen acknowledged that he had
knowingly devised and implemented a massive fraud scheme to obtain insurance
(Continued)
                                             9
       The Plea Agreement contains two sentencing stipulations. That is, Cohen was

subject to a base offense level of 7 on Count One and a mandatory consecutive sentence

of two years on Count Twenty. There are no stipulations as to sentencing on Counts

Twenty-Four and Twenty-Eight. The right of the parties to seek Guidelines adjustments

was reserved, including possible adjustments for loss amount, number of victims,

sophisticated means, leadership role, and obstruction of justice.

       The Plea Agreement includes two waiver provisions. First, Cohen waived his trial

related rights by pleading guilty. The Plea Agreement also explains Cohen’s waiver of

appeal by specifying that if he

       were found guilty after a trial, [Cohen] would have the right to appeal the
       verdict and the [c]ourt’s pretrial and trial decisions on the admissibility of
       evidence. . . . By pleading guilty, [Cohen] knowingly gives up the right to
       appeal the verdict and the [c]ourt’s decisions.

J.A. 325-26 (emphasis added). The Plea Agreement provides that, “[b]y pleading guilty,

[Cohen] will be giving up all of these rights, except the right set forth in the ‘Waiver of



premiums by false and fraudulent pretenses. In Cohen’s words, he engaged in a “mini
Ponzi thing” with another insurance company in order to obtain operating cash. In
carrying out his fraud scheme, Cohen identified fake policyholders and created fake
financing applications for those phony policyholders. He also fabricated a fake business
manager, to manage those fake insurance financing applicants, by falsely using the
identity of a former IIC attorney and stamping that attorney’s name on spurious
documents used to further the scheme. Cohen then submitted phony confirmations —
misusing the identity of a bank employee — to defeat legitimate efforts made by
insurance regulators to verify IIC’s assets. When the Insurance Commissioner of
Delaware instituted civil proceedings against IIC, Cohen threatened that State’s
investigators in an endeavor to corruptly derail a criminal probe of his fraudulent
activities.



                                            10
Appeal’ paragraph below, to appeal an illegal sentence.” 

That waiver of

appeal paragraph provides in relevant part as follows:

      In exchange for the concessions made by [the United States Attorney], the
      defendant waives his rights to appeal as follows: the defendant knowingly
      waives all right, pursuant to 28 U.S.C. § 1291, or otherwise, to appeal the
      defendant’s conviction and whatever sentence is imposed.

(emphasis added).

      During the Rule 11 plea hearing, the district court ascertained that Cohen fully

understood the charges, the potential penalties, and the rights he was waiving by pleading

guilty. J.A 285-93. Cohen confirmed that he was giving up the right to “challenge any

defect in the indictment, any evidence that was seized, any statements that [he] made, or

anything of that nature.” 

Cohen also agreed that he was entering his guilty

pleas voluntarily and had not been coerced to do so. 

Cohen’s then standby

lawyer advised the court that Cohen understood the Plea Agreement, that Cohen had

personally negotiated the Agreement and the supporting statement of facts, and that

Cohen was “well aware of all the facts in both.” 

Importantly, the court

explicitly addressed the appeal waiver, advising Cohen, “there is a waiver of appeal

provision. You 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.” 

(emphasis added). Cohen confirmed that he understood the

court’s explanation and the terms of the Plea Agreement and that he “want[ed] to do

this.” 

304-05. The court then accepted each of Cohen’s guilty pleas.




                                            11
                                            2.

      Two months later, on August 3, 2015, Cohen had a change of heart and moved to

withdraw his guilty pleas. Cohen contended, inter alia, that he was legally innocent of

the aggravated identify theft offense in Count Twenty and that the prosecutors had

improperly induced him to enter into the Plea Agreement. More specifically, Cohen

claimed that the stipulated facts in his Plea Agreement were not specific enough to

support his conviction for aggravated identity theft. Cohen also asserted that he was

wrongly induced to plead guilty by material misrepresentations made by the prosecutors

at the plea hearing concerning the seizure of a bank account in his wife’s name.

      On September 8, 2015, the district court conducted an evidentiary hearing on the

motion to withdraw.      Cohen himself, his final standby attorney, and two of the

prosecutors testified. J.A. 337-440. After assessing the evidence and the applicable legal

principles, the court denied Cohen’s motion to withdraw his guilty pleas. The court

explained that Cohen had not credibly demonstrated his innocence to aggravated identity

theft and that he had failed to prove that the prosecution had engaged in “egregiously

impermissible conduct that induce[d] the guilty plea[s].” 

440. The court

emphasized that the alleged misrepresentations about the bank account during plea

negotiations was simply a misunderstanding and was not egregious.           As the court

explained, Cohen had not shown that a reasonable defendant in his circumstances would

have gone to trial had he known of the bank account misunderstanding.




                                            12
                                             E.

                                             1.

       Cohen’s presentence report (the “PSR”) was thereafter drafted, and it was

submitted to the district court in July 2015. J.A. 1952-84. In September and November

2015, the court conducted six days of evidentiary sentencing hearings, allowing the

parties to fully litigate the sentencing issues. The government called seven witnesses,

Cohen testified at some length, and a litany of exhibits were presented. After conducting

those sentencing proceedings, the court advised the parties that it would soon make

advisory Guidelines calculations and revise the PSR accordingly.

       On November 10, 2015, the district court issued its advisory Guidelines

calculations. Pursuant to the Plea Agreement, the court applied a base offense level of 7

to Count One and a mandatory two-year consecutive sentence on Count Twenty. The

court found the loss amount attributable to Cohen’s insurance fraud scheme to be at least

$126,000,000, and as much as $137,000,000. J.A. 1986-88. Those findings on loss

amount resulted in a twenty-four-level upward adjustment. The court then imposed

seven additional upward adjustments: for causing substantial financial hardship to five or

more victims; for violating court orders; for using sophisticated means; for jeopardizing

the safety and soundness of a financial institution; for maintaining a leadership role; for

abusing a position of private trust; and for obstructing justice. 

       After the PSR was revised to comport with the district court’s Guidelines

calculations, the parties made additional submissions. Applying a total offense level of

51 and a criminal history category of I, Cohen’s advisory Guidelines range was life in

                                             13
prison. The PSR capped the advisory sentencing range at 660 months, however, to

comport with the statutory maximum penalties. J.A. 1974. On November 10, 2015, the

court filed its Guidelines calculations and adopted the PSR. The court then scheduled the

final sentencing hearing for December 10, 2015.

                                             2.

       On November 23, 2015 — with his sentencing about to be finalized — Cohen

moved to rescind his pro se self-representation status. He also moved the district court to

appoint a defense lawyer to represent him at the final sentencing hearing (the “motion to

rescind pro se status and appoint counsel”). The court promptly referred Cohen’s motion

to rescind pro se status and appoint counsel to the magistrate judge.

       On December 1, 2015, during a hearing on Cohen’s new motion, the magistrate

judge commented in some detail on Cohen’s pro se representation efforts throughout the

district court proceedings. He observed that Cohen had submitted some of the best

arguments the judge had seen “that deal with sentencing guidelines.” J.A. 1838. The

judge identified multiple aspects of the proceedings where Cohen had performed capably

in representing himself, including numerous motions, several days of trial, plea

negotiations and plea proceedings, efforts to withdraw his guilty pleas, and contested

sentencing hearings.

       Cohen testified at the hearing that, although he had a great deal of experience with

trials and motions, he was nevertheless “very uncomfortable” in the sentencing

proceedings. J.A. 1839. When the magistrate judge asked Cohen why he had not raised

that discomfort earlier, Cohen responded that the sentencing hearings had not unfolded as

                                            14
expected. Cohen also said he was “in unknown territory” and uncomfortable going

forward “without counsel to say, okay, this is proceeding properly.” 

The

magistrate judge found that, because Cohen had not succeeded on his Guidelines

arguments, he was seeking an appointed lawyer to “start over again.” 

       The magistrate judge related during the hearing that Cohen’s standby counsel

could continue to answer questions for him regarding practices and procedures,

emphasizing that a restart of the sentencing proceedings was impractical “and probably

would never happen.” J.A. 1841-42. Relying on our 1989 decision in United States v.

West, the judge also correctly recognized that, once waived, an accused’s Sixth

Amendment right to counsel is no longer absolute. 

(citing 

(4th Cir. 1989)). The magistrate judge emphasized that, more than a year before these

events, Cohen had made a knowing and intelligent decision to represent himself pro se.

The judge also explained that Cohen had represented himself “for a significant period of

time, in the crucible of trials and sentencing hearings” and had done so “zealously and

with a great deal of advocacy.” 

context, Cohen’s motion to rescind pro se

status and appoint counsel was being made at the eleventh hour and only after he learned

that the advisory Guidelines calculations were “off the charts.” 

judge therefore denied Cohen’s motion to rescind pro se status and

appoint counsel. That ruling was predicated on three specific findings: (1) Cohen’s

motion was untimely; (2) Cohen had not shown any good reason for an appointment of

counsel; and (3) such an appointment would not serve “the speedy and timely

administration of justice and the court’s schedule.” J.A. 1848-51. Emphasizing his third

                                            15
finding, the judge again observed that the final sentencing hearing was not likely to be

postponed. He explained that it would be “impossible for any new attorney . . . to get up

to speed” to maintain the scheduled hearing. 

Later that very day, the

magistrate judge entered an order confirming his bench ruling. Of importance, Cohen did

not seek to appeal the magistrate judge’s ruling to the district court, nor did he file any

objections to it. 7

                                             3.

        On December 10, 2015, the district court convened Cohen’s final sentencing

hearing. After considering the positions of the parties and the entire record, the court

concluded that “this case requires the imposition of a severe punishment.” J.A. 1939.

Nevertheless, the court varied downward from “what would be essentially a life sentence

for Mr. Cohen” and imposed a sentence that was “sufficient but not greater than

necessary to reflect the seriousness of these offenses, provide just punishment and

adequate deterrence, and to protect the public from further crimes of the Defendant.” 

With those concerns guiding the court, Cohen was sentenced to an aggregate

term of 444 months in prison. His sentences on the four offenses of conviction were as

follows:


        7
         Pursuant to 28 U.S.C. § 636(b), the local rules of the District of Maryland
provide that a district judge may “designate a full-time magistrate to hear and determine
(including the passage of final orders as to all or any part of) any pretrial matter pending
before the Court . . . .” See D. Md. L.R. 301.5(a). Those rules provide that an appeal
from a magistrate judge’s ruling “shall be made to the District Court within fourteen (14)
days from entry of the decision.” 

      •      240 months on the mail fraud offense in Count One;

      •      180 months for making false statements to an insurance regulator, as
             charged in Count Twenty-Four, to run consecutive to the 240 months
             imposed on Count One;

      •      240 months on the obstruction of justice offense in Count Twenty-
             Eight, to run concurrently with the 420 months imposed on Counts
             One and Twenty-Four; and

      •      24 months on the aggravated identity theft offense in Count Twenty,
             to run consecutive to the 420 months imposed on Counts One,
             Twenty-Four, and Twenty-Eight.

See J.A. 1940, 1946. Cohen’s aggregate sentence of 444 months — totalling 37 years —

was substantially less than the Guidelines maximum of 660 months. Finally, the court

determined that the sentence imposed would best serve the ends of justice.



                                           II.

      As a general proposition, we review a district court’s legal conclusions de novo

and its factual findings for clear error. See United States v. Layton, 

, 334

(4th Cir. 2009). We also review de novo an issue concerning the validity of an appeal

waiver. See United States v. Cohen, 

, 494 (4th Cir. 2006). Any contention

of appellate error that was not pursued and preserved in the district court, however, is

reviewed for plain error only. See United States v. Olano, 

, 731-32 (1993).



                                           III.

      Cohen has timely appealed from his criminal judgment, seeking to challenge his

convictions and sentences. We possess jurisdiction pursuant to 28 U.S.C. § 1291. Cohen
                                           17
has been represented by appointed appellate counsel during the entirety of this appeal. 8

Cohen has also sought to personally participate in the appeal by way of seventeen pro se

submissions. After first assessing the issues presented by Cohen’s appellate counsel, we

will dispose of his pending pro se submissions.

                                              A.

           Through his counsel, Cohen pursues four contentions of appellate error identified

in his opening appellate brief:

       •        First, Cohen maintains that the district court erred in failing to
                conduct a Farmer hearing on his asset seizure allegations (the
                “Farmer hearing issue);

       •        Second, Cohen contends that his Sixth Amendment right to counsel
                was contravened by the magistrate judge’s denial of his request to
                revoke his pro se status and have a lawyer appointed for his final
                sentencing hearing (the “Sixth Amendment issue”);

       •        Third, Cohen argues that the appeal waiver in his Plea Agreement is
                flawed and unenforceable (the “appeal waiver issue”); and

       •        Finally, Cohen maintains that the district court erred in making
                factual findings with respect to his sentencing and in applying
                multiple Guidelines enhancements (the “sentencing issue”).

       After Cohen’s opening appellate brief was filed, the government moved to dismiss

Cohen’s appeal in substantial part, interposing the appeal waiver contained in his Plea

       8
         Although we initially appointed Cohen’s final standby lawyer in the district court
to serve as his counsel in this appeal, that lawyer soon sought and secured court approval
for his withdrawal from the appeal. Two other appellate lawyers were thereafter
appointed and subsequently relieved from their representations of Cohen. On June 16,
2016, six months after his appeal was noted, we appointed the public defender for
northern West Virginia to represent Cohen. The defender continues to serve as Cohen’s
counsel in this appeal.


                                              18
Agreement. More specifically, the government sought the dismissal of three of the four

contentions identified in Cohen’s opening brief. As an exception, the government did not

— and does not — seek to apply the appeal waiver to the Sixth Amendment issue.

       On March 15, 2017, we granted in part the government’s motion to dismiss

Cohen’s appeal. See United States v. Cohen, No. 15-4780 (4th Cir. Mar. 15, 2017), ECF

No. 72 (the “Appeal Waiver Ruling”). That Ruling provided as follows:

       We have thoroughly reviewed the parties’ submissions and the record on
       appeal. Considering the totality of the circumstances — including the
       language of the plea agreement, the transcript of the plea colloquy, and
       Cohen’s representations during the proceedings below — we conclude that
       Cohen knowingly and intelligently waived his rights to appeal both his
       convictions and sentence. Further, we conclude that Issue IV [the
       sentencing issue] in Cohen’s opening appellate brief falls squarely within
       the waiver’s broad compass. However, we defer ruling on the remainder of
       the motion pending completion of the merits briefing.

the Appeal Waiver Ruling explicitly dismissed from this appeal the multi-

faceted sentencing issue. 

resolved the appeal waiver issue argued in Cohen’s

opening brief, concluding that the appeal waiver is valid and enforceable. 

of the appeal waiver’s applicability to the Farmer hearing issue, however, has

been reserved and is not yet resolved.

       Thereafter, in April 2017, the government submitted its merits brief in this appeal.

The government argued that the Sixth Amendment issue is without merit and sought to

extend the appeal waiver to completely bar the Farmer hearing issue. In Cohen’s reply

brief, he also focused on the merits of the Sixth Amendment issue and the Farmer

hearing issue. We thus turn to and resolve those appellate contentions.



                                            19
                                             B.

       As an overview of where the unresolved issues stand, we recognize that Cohen’s

Sixth Amendment issue is not barred by the appeal waiver. And the government agrees

with that proposition and does not seek to apply the appeal waiver to that issue. As for

Cohen’s Farmer issue, the prosecutors maintain that the appeal waiver and Cohen’s

guilty pleas each serve as a bar to our review.

       The prosecutors also argue that the district court did not err on the merits in its

denial of Cohen’s request for a Farmer hearing. In that respect, they argue that Cohen

had only sought to obtain funds to retain a standby counsel of his choice, and that he

failed to make a sufficient prima facie showing to justify a Farmer hearing. Cohen, on

the other hand, maintains that the appeal waiver does not apply to the Farmer hearing

issue. He also argues that his guilty pleas do not bar an appellate review of that issue.

                                             C.

                                             1.

       In order to fully resolve Cohen’s Farmer hearing issue, we must decide whether

the valid and enforceable appeal waiver has sufficient breadth to bar Cohen’s challenge

to the district court’s denial of his Farmer hearing request. Cohen maintains that the

Farmer hearing issue is exempt from the appeal waiver because he was actually seeking

to use his seized assets to retain a defense attorney, rather than to hire a standby counsel.

With that spin on the facts, Cohen paints a Sixth Amendment violation by asserting that

he clearly expressed his desire to hire his own private defense counsel. This factual



                                             20
assertion is patently false. As the district court specifically found, Cohen sought his

“seized funds to pay for standby counsel of his choice.” J.A. 2370 (emphasis added).

       It is settled that Cohen had no right to the appointment of a standby counsel after

he chose to proceed pro se, let alone the right to a standby counsel of his choosing. See

United States v. Beckton, 

, 307 (4th Cir. 2014) (recognizing that defendant

has both a constitutional right to counsel and a constitutional right to represent himself,

but that those rights are “mutually exclusive”); see also United States v. Singleton, 

, 1100-01 (4th Cir. 1997); McKaskle v. Wiggins, 

, 183 (1984)

(recognizing that although court may appoint standby counsel, Faretta does not require

or authorize “hybrid” representation). Thus, the applicable precedent and the controlling

facts undermine Cohen’s characterization of his Farmer hearing contention as

constituting a deprivation of his right to counsel. Cohen’s effort to repudiate his appeal

waiver in that regard is therefore rejected.

       Again, as we explained in the Appeal Waiver Ruling, Cohen’s appeal waiver is

valid and enforceable. We discern nothing that would place the Farmer hearing issue

beyond the breadth of the appeal waiver, and that issue is therefore dismissed.

                                               2.

       Turning to the Sixth Amendment issue, Cohen argues that the magistrate judge

contravened his right to counsel by denying his motion to rescind pro se status and

appoint counsel for his final sentencing hearing. Although the government agrees that

the appeal waiver does not apply to that contention, Cohen nevertheless failed to preserve

it for appellate review. That is, Cohen failed to either appeal or object to the magistrate

                                               21
judge’s denial of his motion. Although we review for abuse of discretion a court’s denial

of a defendant’s request for counsel after he has already invoked his right to self-

representation, the Sixth Amendment issue — not being preserved in the lower court —

is subject to plain error review only.

        Before making the plain error analysis, some basic legal principles should be

identified. First, the Sixth Amendment protects a defendant’s “right to counsel at all

critical stages of the criminal process.” See Marshall v. Rodgers, 

, 62 (2013).

That safeguard also protects an accused’s fundamental right to voluntarily and

intelligently elect to proceed without counsel. See Faretta v. California, 

,

807 (1975). Second, although an accused can reassert his right to counsel after it has

been withdrawn, “there is broad consensus that, once waived, the right to counsel is no

longer unqualified.” See 

; United States v. Kerr, 

, 220

(2d Cir. 2014).

       Third, when a trial court is faced with a tardy request for appointed counsel, the

court is entitled to consider the defendant’s motive in seeking to rescind his pro se status.

Put simply, the right to self-representation “does not exist . . . to be used as a tactic for

delay, for disruption, for distortion of the system, or for manipulation of the trial

process.” United States v. Frazier-El, 

, 560 (4th Cir. 2000) (citations

omitted); see also 

n. 46 (observing that right of self-

representation is neither “a license to abuse the dignity of the courtroom” nor “a license

not to comply with relevant rules of procedural and substantive law”). Fourth, the federal

courts routinely consider the timeliness of a renewed request for counsel. See West, 

; 

; United States v. Woodard, 

, 111 (1st

Cir. 2002). As we have recognized, a request by an accused to revoke his pro se status

and reassert the right to counsel raises “the countervailing public interest in proceeding

on schedule,” which “has no less weight merely because the motion is filed by a pro se

defendant.” 

(citation omitted).

       Turning to the present situation, Cohen made his motion to rescind pro se status

and appoint counsel in a very tardy fashion. The district court had already conducted

expansive evidentiary sentencing hearings and issued its advisory Guidelines

computations, and Cohen had been representing himself pro se for more than a year.

Throughout the proceedings, and until the eve of final sentencing, Cohen had reaffirmed

that pro se self-representation was his desire and intention. Thus, Cohen had “no right to

whipsaw the district court and delay the proceedings by continually alternating his

position on counsel.” See 

.

       The magistrate judge denied Cohen’s motion to rescind pro se status and appoint

counsel for three sound reasons: (1) Cohen’s motion was untimely; (2) Cohen had not

shown any good reason for an appointment of counsel; and (3) such an appointment

would not serve “the speedy and timely administration of justice and the court’s

schedule.” J.A. 1848-51. The judge identified the gravamen of the motion as Cohen’s

dissatisfaction with the Guidelines calculations. The judge found that Cohen simply

wished to “start over again” after his sentencing exposure was greater than he anticipated.

                                            23
       This record convincingly reveals that — in every aspect of the district court

proceedings — Cohen has received an excess of judicial solicitude, patience, and process.

And we are obliged to defer to the magistrate judge’s well-founded factual findings. We

thus discern no error in the denial of Cohen’s motion to rescind pro se status and appoint

counsel for his final sentencing hearing. Because no error was made, there can be no

plain error. Cohen’s Sixth Amendment issue is therefore rejected.



                                            IV.

                                            A.

       Finally, Cohen has made seventeen pro se supplemental submissions in this

appeal, and many of them seek to pursue additional appellate issues. As an initial matter,

we observe that an appellant who is represented by counsel has no right to file pro se

briefs or raise additional substantive issues in an appeal. See United States v. Hare, 

, 106 n.11 (4th Cir. 2016); United States v. Washington, 

, 941 n.1

(4th Cir. 2014). For that reason, we promptly denied Cohen’s initial effort to file a pro se

brief, which was tendered before his counsel had filed the opening appellate brief. Not

long after Cohen’s counsel filed his opening brief, Cohen sought to file another pro se

brief. See United States v. Cohen, No. 15-4780 (4th Cir. Oct. 31, 2016), ECF Nos. 56,

57. In the circumstances, we authorized the filing of that submission. Not content with

that submission alone, Cohen now seeks to file other pro se supplemental submissions

and pursue contentions of error that are generally frivolous and inscrutable.



                                            24
      In one of his pending pro se submissions, however, Cohen has identified an

Apprendi issue with respect to Count Twenty-Four that has plausible merit, but is

burdened by serious procedural flaws. See United States v. Cohen, No. 15-4780 (4th Cir.

Feb. 14, 2017), ECF No. 71. 9 We will therefore file and address that issue. With the

exception of the Apprendi issue, we hereby reject and strike all of Cohen’s other pending

pro se submissions.

      With that explanation, and with most of Cohen’s pro se submissions having been

rejected and stricken, one of Cohen’s supplemental pro se submissions, plus the Apprendi

issue, are yet unresolved. See United States v. Cohen, No. 15-4780 (4th Cir. Oct. 31,

2016), ECF No. 57 (the “Pro Se Brief”); 

Feb. 14, 2017), ECF No. 71 (the

“Apprendi issue”).    We will first dispose of the Pro Se Brief and then address the

Apprendi issue.

                                           B.

                                            1.

      Liberally construing the Pro Se Brief, we discern eight contentions of appellate

error therein. Six of those contentions readily fall within the scope of the appeal waiver




      9
         Apprendi and its progeny require that any fact that increases a criminal penalty
beyond the prescribed statutory maximum must be charged in the indictment and proved
to the jury beyond a reasonable doubt. 

. Where the defendant has
pleaded guilty, the defendant’s admissions during the plea colloquy can satisfy this
requirement. See United States v. Booker, 

, 232 (2005); United States v.
Milam, 

, 387 (4th Cir. 2006).


                                           25
and are barred by the waiver and Cohen’s guilty pleas. 10 See Tollett v. Henderson, 

, 267 (1973) (recognizing that where a defendant “has solemnly admitted in open

court that he is in fact guilty, . . . he may not thereafter raise independent claims relating

to the deprivation of constitutional rights that occurred prior to the entry of the guilty

plea”). By two other contentions pursued in the Pro Se Brief, Cohen contends that the

district court erred in rejecting his effort to withdraw his guilty pleas. Those contentions

are also barred — albeit by the appeal waiver only — and they warrant a brief discussion.

                                              2.

       In the Pro Se Brief’s remaining two contentions, Cohen argues that the district

court erred in denying his motion to withdraw his guilty pleas.           He relies on two

independent grounds for that claim. First, he says that he is legally innocent on Count

Twenty, in that his conviction was not based on an appropriate predicate offense.

Second, Cohen argues that the court erred because misrepresentations by the prosecutors

in the plea negotiations rendered his guilty pleas neither knowing nor voluntary.

       As explained above in Part III.A, our Appeal Waiver Ruling concluded that

“Cohen knowingly and intelligently waived his rights to appeal both his convictions and

sentence.” Cohen ignores the controlling terms of the appeal waiver contained in the

       10
           Six issues in the Pro Se Brief are readily barred by the appeal waiver and the
guilty pleas. Those are that the court erred by (1) imposing a sentencing enhancement for
obstructing justice; (2) holding Cohen in pretrial detention; (3) declining to dismiss the
Indictment for prosecutorial misconduct; (4) imposing restitution as part of Cohen’s
sentence; and (5) failing to dismiss the Indictment due to speedy trial violations. In his
sixth barred issue, Cohen maintains that the court’s cumulative errors deprived the
district court proceedings of fundamental fairness and due process.


                                             26
Plea Agreement he made with the United States Attorney. That is, Cohen waived his

“right . . . to appeal [his] conviction,” he agreed to “withdraw all pending motions in the

district court and to not file any further motions in the district court,” and he explicitly

agreed that he “knowingly, intentionally, and voluntarily waive[d] his right to attack

collaterally the plea being offered in the instant case.” J.A. 329-30. 11 Again, in this

appeal, we must assess the appeal waiver’s breadth and its applicability to asserted

contentions of error.

       In his Pro Se Brief, Cohen fails to explain how his challenges to the district court’s

denial of his motion to withdraw his guilty pleas are not subsumed by the appeal waiver.

An appeal waiver will not bar appellate review where a “plea-withdrawal motion

incorporates a colorable claim that the plea agreement itself — and hence the waiver of

appeal rights that it contains — is tainted by constitutional error.” See United States v.

Attar, 

, 733 n.2 (4th Cir. 1994). For example, we have recognized that 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




       11
           It almost goes without saying that Cohen’s motion to withdraw his guilty pleas
— filed nearly two months after the pleas were entered — itself breached the Plea
Agreement. Cohen had specifically agreed therein “not to file any further motions in the
district court.” J.A. 330.


                                             27
of the guilty plea were conducted in violation of his Sixth Amendment right to counsel.”

See United States v. Johnson, 

, 151 (4th Cir. 2005).

       Cohen’s contentions of error with respect to his guilty pleas do not qualify as the

types of claims recounted in Johnson. Cohen’s claim of legal innocence is simply an

effort to again contest his conviction on Count Twenty, and thus falls within the plain

terms of the appeal waiver.       In his other contention about the guilty pleas, Cohen

maintains that his only reason for entering into the Plea Agreement was to make his wife

whole. See Pro Se Br. 36. The record simply does not support Cohen’s all-or-nothing

statement about his motive for entering into the Agreement. Cohen’s second contention

about the guilty pleas is obviously just another effort to contest his underlying

convictions and does not present a colorable constitutional claim. See, e.g., 

n.2 (recognizing that “defendant’s desire to spare his family the

embarrassment of trial is not sufficient to render his decision to plead guilty ‘involuntary’

in the constitutional sense; if it were, virtually every guilty plea would be invalid”). 12

       Put simply, we discern no colorable claim of constitutional error in the two

unresolved contentions of the Pro Se Brief concerning Cohen’s guilty pleas. Thus,


       12
          As explained in Part I.D.2 hereof, the district court conducted an extensive
evidentiary hearing and confirmed Cohen’s knowing and voluntary guilty pleas. The
court denied Cohen’s motion to withdraw his guilty pleas by way of a carefully crafted
and thorough memorandum opinion. See United States v. Cohen, No. 1:14-cr-0310 (D.
Md. June 8, 2015), ECF No. 385. In those proceedings, Cohen again received an excess
of judicial solicitude and process. If we were to reach and address the merits of the
contentions in the Pro Se Brief concerning his guilty pleas, we would readily conclude
that the district court did not err in ruling that Cohen entered his guilty pleas knowingly
and voluntarily.

                                              28
nothing places them beyond the breadth of the appeal waiver, and those contentions are

therefore also dismissed.

                                            C.

       Finally, we turn to the Apprendi issue that Cohen pursues with respect to Count

Twenty-Four. Cohen maintains that his sentence on Count Twenty-Four contravened the

Supreme Court’s ruling in Apprendi v. New Jersey, in that neither the Indictment nor the

facts admitted in the plea colloquy permit the application of an enhanced 15-year

sentence. See 

(2000). Because we have recognized that an Apprendi issue

can fall outside the scope of an appeal waiver, we will carefully assess that issue. See

United States v. General, 

, 399 n.4 (4th Cir. 2002) (recognizing that

challenges to a defendant’s sentence pursuant to Apprendi “are not subject to contractual

waivers”); see also 

(explaining that “a defendant could not be

said to have waived his right to appellate review of a sentence imposed in excess of the

maximum penalty provided by statute”).

       Count Twenty-Four charged Cohen with making a false statement to an insurance

regulator, in violation of 18 U.S.C. 1033(a). 13      A violation of § 1033(a) normally

provides for a maximum statutory sentence of “not more than 10 years.”                   

Twenty-Four of the Indictment alleged, in pertinent part, that Cohen “did
knowingly, willfully, and with the intent to deceive, make materially false
statements . . . to the Delaware Insurance Commissioner and her agents, for the purpose
of influencing” their official actions. See J.A. 83. That offense was predicated on a letter
that Cohen sent to the Delaware insurance regulators which falsely stated that IIC “had
$5.1 million in unencumbered cash on deposit at Susquehanna Bank.” 

                                            29
§ 1033(a)(2). However, an enhanced penalty of “not more than 15 years” is authorized if

the false statement “jeopardized the safety and soundness of an insurer and was a

significant cause of such insurer being placed in conservation, rehabilitation, or

liquidation by an appropriate court.” 

is arguable merit to the Apprendi issue, we secured post-argument

supplemental briefs on that question. In Cohen’s supplemental brief, his counsel urges us

to recognize the merits of the Apprendi issue and remand for resentencing on all four

offenses. More specifically, the brief argues that the Indictment and plea colloquy lack

the factual support necessary to warrant an enhanced 15-year sentence for the Count

Twenty-Four offense. Relying on our decision in United States v. Catone, Cohen’s brief

also maintains that we should review the Apprendi issue for harmless error and that the

Apprendi error was not harmless. See Catone, 

(4th Cir. 2014). The

government, on the other hand, maintains that we should reject Cohen’s Apprendi

contention and affirm his aggregate sentence. The government emphasizes facts elicited

in Cohen’s sentencing proceedings that support the enhanced 15-year sentence for the

§ 1033(a) offense. The government also maintains that we can review the Apprendi issue

for plain error only, and that — even assuming a plain error occurred — we should not

recognize it.

       There are important procedural facts that guide our identification of the proper

standard of review on the Apprendi issue. First, it is elementary that an issue not

presented fairly in an appellant’s opening appellate brief is thereby waived. See United



                                            30
States v. Lesson, 

, 638 n.4 (4th Cir. 2006). 14 And the Apprendi issue was

not raised in either the opening appellate brief or in the Pro Se Brief. Second, Cohen

simply “has no right to raise substantive issues while he is represented by counsel” in this

appeal. See United States v. Washington, 

, 941 n.1 (internal quotation marks

omitted). Because Cohen is represented by appellate counsel, we could readily reject the

Apprendi issue on that basis. Cohen — who was then representing himself pro se — also

failed to raise and preserve the Apprendi issue in the district court.             In these

circumstances, it is clear that we can only review the Apprendi issue for plain error. See

United States v. Promise, 

, 154 (4th Cir. 2001) (relying on United States v.

Olano, 

, 731-32 (1993)). We are satisfied that the plain error standard

applies to the Apprendi issue, and we will only assess its merits on that basis.

       To prevail on plain error review, an appellant must show (1) that the district court

erred, (2) that the error was plain, and (3) that the error affected his substantial rights.

See 

. To satisfy the third prong of that test, the appellant must

show that the error actually “affected the outcome of the district court proceedings.” 

of those three requirements are satisfied, we possess discretion on whether to

recognize the error, but we “should not do so unless the error ‘seriously affects the


       14
          Giving Cohen substantial leeway in these proceedings and treating his Pro Se
Brief as a second chance at an opening brief, Cohen yet again failed to raise the Apprendi
issue in a timely manner. See United States v. Cohen, No. 15-4780 (4th Cir. Feb. 14,
2017), ECF No. 71. He thus pursues the Apprendi issue in a tardy fashion. See United
States v. Jones, 

, 427 n.1 (4th Cir. 2002) (concluding that defendant waived
Apprendi claim by raising it in Rule 28(j) letter rather than in his initial brief).


                                             31
fairness, integrity or public reputation of judicial proceedings.’”       United States v.

Hargrove, 

, 184 (4th Cir. 2010) (quoting 

).

       Assuming that the first two plain error requirements are satisfied on the Apprendi

issue — that the court erred on the statutory maximum as to Count Twenty-Four, and that

the error was plain — the Apprendi issue nevertheless fails to pass muster on plain error’s

third prong. If the assumed sentencing error had not occurred, the applicable statutory

maximum for Count Twenty-Four would have been capped at 10 years rather than 15

years. Cohen’s aggregate sentencing exposure would have been 60 months less, that is,

600 months rather than 660 months. To satisfy the third prong of Olano, however, the

plain error must have affected Cohen’s substantial rights by altering the “outcome of the

district court proceedings.” 

. And there is ample evidence in this

record to belie that proposition.

       First, Cohen understood that he was pleading guilty to a § 1033(a) offense that

carried a maximum 15-year sentence. That fact was included in the Plea Agreement, the

PSR, and carefully explained to Cohen during the Rule 11 plea colloquy. See J.A. 324,

288, 1952. Moreover, Cohen’s aggregate sentence of 444 months was well within a 600-

month statutory maximum. Additionally, the sentencing court clearly intended to impose

a 444-month sentence on Cohen, rather than an effective life sentence.           The court

explained that “this case requires the imposition of a severe punishment, but not . . . what

would essentially be a life sentence for Mr. Cohen.” 

After weighing the

arguments of the parties, the court varied downward to a substantial extent in order to

impose the 444-month sentence, which is “in total, a 37-year sentence.” 

The

                                            32
government reasonably observes that, if the court had been constrained by a five-year

decrease in the statutory maximum on Count Twenty-Four, it could readily have

apportioned the same 444-month sentence differently among Cohen’s four convictions.

In these circumstances, we are satisfied that the plain error did not impact Cohen’s

substantial rights or affect the outcome of the sentencing proceedings.

       Finally, even if Cohen could satisfy the third prong of the plain error standard, we

would decline to provide him with any relief. See 

(recognizing

that we are “not obligated to notice even structural errors on plain error review,

notwithstanding that structural errors are per se reversible when reviewed under a

harmless error standard”). Put simply, assuming a plain error occurred, that error does

not undermine the fairness, integrity, or public reputation of judicial proceedings. See

United States v. Brown, 

, 194 (4th Cir. 2014). In any event, we would

therefore not award any relief to Cohen on the Apprendi issue.



                                             V.

       Pursuant to the foregoing, we dismiss all contentions of error presented — and

sought to be presented — on behalf of Cohen in the appellate briefs and in his pro se

supplemental submissions, save for the Sixth Amendment issue and the Apprendi issue.

As to those two contentions, we affirm the district court.

                                                              DISMISSED IN PART AND
                                                                  AFFIRMED IN PART




                                            33