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RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0161p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

SCOTT R. DETLOFF, 

Defendant-Appellant. 

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Nos. 14-2001/2002 

Appeal from the United States District Court 

for the Eastern District of Michigan at Detroit. 

No. 2:13-cr-20718—Sean F. Cox, District Judge. 

Decided and Filed: July 24, 2015 

Before: CLAY and MCKEAGUE, Circuit Judges; BERTELSMAN, District Judge.*

_________________ 

COUNSEL 

ON BRIEF: Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, 

Ohio, for Appellant. C. Barrington Wilkins, UNITED STATES ATTORNEY’S OFFICE, 

Detroit, Michigan, for Appellee. 

_________________ 

OPINION

_________________ 

 CLAY, Circuit Judge. Defendant Scott Detloff (“Defendant”) appeals from his 

conviction and sentence, entered pursuant to a Rule 11 plea agreement, for mail theft, in 

violation of 18 U.S.C. § 1708. He also appeals from the 24-month custodial sentence imposed 

 *

 The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky, 

sitting by designation. 

>
Nos. 14-2001/2002 United States v. Detloff Page 2 

for his violation of supervised release. The government concedes that the sentence for the 

supervised release violation resulted from a mistaken guidelines calculation. 

 For the reasons that follow, we DISMISS Defendant’s appeal of his conviction and 

sentence for mail theft, and we VACATE the sentence imposed for violation of supervised 

release and REMAND to the district court for recalculation of the guidelines and resentencing. 

BACKGROUND

 Defendant was stopped by police while driving in Novi, Michigan on October 11, 2009 

after a records check indicated that his license plate had been reported stolen. Defendant fled on 

foot, but eventually surrendered after the police, using a dog, gave chase. A search of 

Defendant’s vehicle led to the discovery of eight falsified driver’s licenses and more than thirty 

pieces of mail, most of which were addressed to businesses in Wixom, Michigan. Defendant 

stipulated in the Rule 11 plea agreement in this case that he possessed these items of mail 

knowing them to have been stolen. The day following his arrest, police conducted a search of 

Defendant’s home in Howell, Michigan that revealed “one-hundred and twelve (112) stolen 

business checks; check stock; a Fargo Pro LX laminator; a Hewlett Packard scanner; a Hewlett 

Packard laser printer; and, a magnetic strip encoder.” (R. 59, Plea Agreement, PageID 198.) 

 The traffic stop resulted in separate state charges based on Defendant’s conduct in 

attempting to evade arrest. In December 2009, Defendant pled guilty to resisting a police officer 

in violation of Mich. Comp. Laws § 750.81d. He was sentenced to serve a term of imprisonment 

between three and fifteen years. 

 A federal complaint for mail theft was filed on August 29, 2011. For reasons that are not 

fully explained in this appeal and are ultimately unnecessary to our disposition of the case, nine 

months passed before Defendant was brought in for an initial appearance on May 23, 2012.1

 On 

April 18, 2013, a federal grand jury returned an indictment charging Defendant with (1) the use 

of a counterfeit access device, in violation of 18 U.S.C. § 1029(a)(1); (2) aggravated identity 

theft, in violation of 18 U.S.C. § 1028A; (3) the commission of bank fraud, in violation of 

 1

At the sentencing hearing, government’s counsel explained in general terms that he issued several writs of 

habeas corpus ad prosequendum that were not successfully served due to difficulties caused by Defendant’s shifting 

location within Ohio and Michigan state prison systems. 
Nos. 14-2001/2002 United States v. Detloff Page 3 

18 U.S.C. § 1344; (4) theft of United States mail, in violation of 18 U.S.C. § 1708; and 

(5) possession of stolen checks, in violation of 18 U.S.C. § 513a. 

 Defendant entered a plea of guilty to the charge of mail theft on March 13, 2014, 

pursuant to a Rule 11 plea agreement. In exchange for his plea, the government agreed to 

dismiss the remaining charges. The parties agreed to a guidelines range of 57 to 71 months, 

reserving Defendant’s right to dispute two elements of the guidelines calculation at sentencing. 

Specifically, in paragraph 2(B), the plea agreement carves out a right for Defendant to dispute 

(1) a two-level enhancement based on the premise that there were ten or more victims of 

Defendant’s criminal conduct, and (2) the aggregate amount of loss calculated by the 

government. Defendant also agreed, as part of the Rule 11 plea, to waive appeal of his 

conviction, and to waive appeal of his sentence unless it exceeded the agreed-to range of 57 to 71 

months. In the written version of the Rule 11 plea, Defendant also agreed to “waive any appeal 

of the court’s final orders related to the sentencing guidelines disputes, referred to in Paragraph 

2(B).” (R. 59 at 198-99.) 

 The district court reviewed the appeal-waiver provisions as part of the Rule 11 colloquy 

on March 13, 2014. Directing Defendant to the corresponding page of the Rule 11 agreement, 

the district court read out loud, “Defendant, being you, waives any right he may have to appeal 

his conviction. If the sentence imposed does not exceed the maximum allowed by part three of 

this agreement, the defendant also waives any right he may have to appeal his sentence.” (R. 93, 

Plea Transcript, PageID 450.) These statements accurately conveyed the appeal waiver. The 

district court, however, made a misstatement in reading the next sentence, stating that “defendant 

agrees not to waive any appeal of the Court’s final order or orders related to the sentencing 

guidelines disputes referred to in paragraph 2(b).” (Id.) (The written version, of course, stated 

the opposite—that Defendant did waive the right to appeal the district court’s final orders of the 

two disputed guidelines issues.) The district court then asked Defendant, “Sir, did you hear what 

I just read to you?” (Id.) Defendant answered that he did, and in response to the district court’s 

inquiry, confirmed that he did not have any questions about the provision. After concluding the 

Rule 11 colloquy, the district court accepted Defendant’s plea and took the agreement under 
Nos. 14-2001/2002 United States v. Detloff Page 4 

advisement. At the same hearing, Defendant entered a plea of guilty to the charged supervised 

release violation. 

 On June 25, 2014, three months after he entered his guilty plea, Defendant filed a pro se

motion to withdraw his guilty plea and dismiss the indictment. Defendant argued that the 

government’s handling of the case, and in particular the lengthy delays between the federal 

complaint, the indictment, and his initial appearance, violated the Interstate Agreement on 

Detainers, the Speedy Trial Act, and the Speedy Trial Clause of the Sixth Amendment. 

Defendant disclosed that his appointed attorney, Mark Satawa, had refused to file the motion on 

his behalf based on Satawa’s position that no violation had occurred. 

 On July 3, 2014, Satawa filed a motion to withdraw as defense counsel, citing conflicts 

with his client over Satawa’s refusal to file the motion to withdraw the guilty plea or to file 

certain objections to the presentence report that Satawa believed to lack a proper foundation in 

the facts and the law. The motion informed the district court that Satawa believed his continued 

representation of Defendant would conflict with his obligations under Michigan Rules of 

Professional Conduct and jeopardize Defendant’s constitutional right to effective counsel. 

 At a hearing on the motion on July 14, 2014, Satawa reiterated his concerns about his 

client’s insistence that he file motions and objections that he believed to be improper. Defendant 

informed the court that he wanted Satawa to continue representing him. The district court denied 

Satawa’s motion to withdraw as defense counsel, and ordered that Satawa act as stand-by 

counsel on Defendant’s pro se motion to withdraw the plea agreement and on Defendant’s pro se

objections to the presentence report. 

 The sentencing hearing was held two days later, on July 16, 2014. At the beginning of 

the proceedings, the district court informed Defendant that he would be denying the motion to 

withdraw his guilty plea in a written order. The district court entertained objections to the 

presentence investigation report from both Satawa and Defendant, took argument on the 

appropriate sentence, and sentenced Defendant to 60 months in prison on the mail theft charge, 

to run concurrently with any undischarged state sentence. On two occasions during this 

proceeding Satawa expressed disagreement with concerns or arguments raised pro se by 

Defendant, as will be further discussed below. 
Nos. 14-2001/2002 United States v. Detloff Page 5 

 The hearing then turned to the supervised release charge. Satawa initially informed the 

court that his client disputed the classification of his violation as Grade A, but quickly reversed 

course and informed the court that the violation was indeed properly classified as Grade A. The 

district court imposed a 24-month sentence, at the bottom of the guidelines range for a Grade A 

violation, to be served consecutively to the mail theft sentence. 

 Defendant timely noticed his appeal. We granted Satawa’s motion to withdraw, and 

appointed new counsel to represent Defendant on appeal. 

DISCUSSION

I. Waiver of Appeal as to Defendant’s Mail Theft Conviction and Sentence 

The government argues that Defendant’s waiver of the right to appeal in his Rule 11 plea 

agreement precludes our review of his claims that the district court abused its discretion in 

denying his motion to withdraw his plea and that the district court’s sentencing decision was 

procedurally unreasonable. We agree. 

 We apply de novo review to the issue of whether a criminal defendant has waived 

appellate rights in a valid plea agreement. United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 

2005). If valid, Defendant’s waiver of his right to appeal his conviction extends to his claim that 

the district court abused its discretion in denying his motion to withdraw his guilty plea. United 

States v. Toth, 668 F.3d 374, 378-79 (6th Cir. 2012). A defendant may challenge a waiver of 

appeal rights “on the grounds that it was not knowing and voluntary, was not taken in 

compliance with Fed.R.Crim.P. 11, or was the product of ineffective assistance of counsel.” 

United States v. Atkinson, 354 F. App’x 250, 252 (6th Cir. 2009) (citing In re Acosta, 480 F.3d 

421, 422 (6th Cir. 2007)). 

 Here, Defendant argues that the district court’s misstatement during the plea colloquy 

violated the requirement in Rule 11(b)(1)(N) that the district court “must inform the defendant 

of, and determine that the defendant understands . . . the terms of any plea-agreement provision 

waiving the right to appeal.” Because Defendant did not object to the misstatement at the plea 

hearing, he must meet the requirements of plain error review by showing (1) error (2) that is 

plain, and (3) that affects his substantial rights. Murdock, 398 F.3d at 496. If he makes that 
Nos. 14-2001/2002 United States v. Detloff Page 6 

showing, this Court may then exercise its discretion to notice the error only where “the error 

seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id.

(internal quotation marks omitted). 

 In United States v. Melvin, 557 F. App’x 390 (6th Cir. 2013), this Court held that “a 

district court’s failure to comply with Rule 11(b)(1)(N) constitutes an error that is plain.” 557 F. 

App’x at 393. In that case, we found that the district court’s inaccurate description of the scope 

of the appeal waiver in the plea colloquy affected the defendant’s substantial rights where no 

accurate statement of the provision’s scope was made and adopted by the defendant on the 

record. Id. at 394-96 (collecting cases). Because we concluded that the district court’s 

misstatement in that case precluded a determination that the defendant’s appeal waiver was 

knowing and voluntary, we held that we could not dismiss an appellate claim falling “within the 

exception that the district court inadvertently carved into the plea agreement’s appeal-waiver 

provision.” Id. at 396. 

 In the instant case, the district court accurately informed Defendant that in accepting the 

Rule 11 agreement he was waiving “any right he may have to appeal his conviction,” and, 

provided the sentence imposed did not exceed the agreed-upon guidelines range, “any right he 

may have to appeal his sentence.” (R. 93 at 450.) However, as in Melvin, the district court 

inadvertently created an exception by stating that Defendant agreed “not” to waive appeal of the 

court’s final orders related to the two discrete sentencing guidelines disputes identified in 

paragraph 2(B). (Id.) 

 Defendant’s appellate claims are not salvaged by the district court’s error. He does not 

challenge the district court’s final determination either as to the number of victims or as to the 

loss calculation; therefore, he cannot claim the benefit of an exception created by the district 

court’s misstatement. Cf. Melvin, 557 F. App’x at 396 (vacating sentence based on an error that 

came within the exception inadvertently created by the district court). He did, in contrast, 

acknowledge on the record that he was waiving any right to appeal his conviction and any right 

to appeal a sentence of less than 71 months. Because his waiver of these rights was knowing and 

voluntary, his claims of error regarding his conviction and the procedural reasonableness of the 

district court’s sentencing determination must be dismissed. 
Nos. 14-2001/2002 United States v. Detloff Page 7 

II. Constructive Denial of Counsel at Sentencing 

Defendant argues that he was constructively denied counsel at sentencing, a critical stage 

of the proceedings, in violation of his rights under the Sixth Amendment. See Van v. Jones, 

475 F.3d 292, 299 (6th Cir. 2007) (discussing sentencing as a critical stage); Moss v. Hofbauer, 

286 F.3d 851, 860 (6th Cir. 2008) (citing United States v. Cronic, 466 U.S. 658-62 (1984)) 

(recognizing the theory of constructive denial of counsel). Constructive denial of counsel occurs 

where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” 

or another “constitutional error of the first magnitude” violating the right to counsel is shown. 

Hofbauer, 286 F.3d at 860 (quotation marks omitted); see, e.g. Rickman v. Bell, 131 F.3d 1150 

(6th Cir. 1997) (finding a per se violation of the right to counsel where the defense attorney 

displayed continual hostility to and contempt for his client); United States v. Herrera-Zuniga, 

571 F.3d 568, 591-93 (6th Cir. 2009) (discussing possibility that defense counsel’s submission of 

a letter to the court castigating his client and describing him as unworthy of empathy and “at the 

bottom of society’s hierarchy” as apparent professional malfeasance potentially constituting per 

se ineffectiveness). Constructive denial of counsel constitutes structural error requiring no 

further showing of prejudice. Hofbauer, 286 F.3d at 860. 

 Defendant argues that the district court should have granted Satawa’s motion to withdraw 

as defense counsel when, at the hearing on that motion, Satawa’s conduct made clear that he was 

not acting in his client’s best interests. At that hearing, Satawa informed the court that his 

client’s arguments in support of his motion to withdraw his guilty plea were without merit, 

stating that “[t]he Interstate Agreement on Detainers does not apply to Mr. Detloff,” and that 

Satawa did “not believe” Defendant had “a good faith basis to withdraw his guilty plea.” (R. 90, 

Hearing Transcript, PageID 379-80.) Satawa went so far as to accuse his client of “gaming the 

system” by both insisting on asserting certain legal positions and requesting that Satawa continue 

as his lawyer. (Id.) Despite the visibly troubled relationship between attorney and client, the 

district court ordered Satawa to continue representing Defendant and to serve as standby counsel 

on Defendant’s pro se motions and objections. 

 The tensions between lawyer and client continued to be apparent at the sentencing 

hearing when Satawa voiced disagreement with positions or concerns raised pro se by 
Nos. 14-2001/2002 United States v. Detloff Page 8 

Defendant. The first instance arose when Defendant was arguing his pro se objection 

challenging the calculation of loss and the number of victims for the mail theft charge and 

informed the court that he had not seen a list of the victims and did not know how the 

government was arriving at the amount of loss. In what the government describes as an act of 

candor, Satawa interjected to inform the court that he had personally reviewed the discovery in 

the case and verified the existence of the documents underlying the calculation. Next, still 

during the sentencing for the mail theft charge, Satawa prefaced his argument for a downward 

variance by reminding the court, apparently gratuitously, that he “disagree[d] with [Defendant] 

about his interpretation of the Interstate Agreement on Detainers.” (R. 91, Sentencing 

Transcript, PageID 396.) Defendant argues that by making these two statements adverse to his 

client’s interest, Satawa showed that he was failing to act as counsel. 

 The most serious disagreement between attorney and client occurred after the proceeding 

turned to the supervised release violation. Satawa informed the district court that his client 

disputed that his state conviction for resisting a police officer constituted a Grade A violation, 

and believed instead that it was a Grade B violation. He offered no argument in support of this 

position. The government described the conviction as for a “violent offense,” which elicited an 

objection from Defendant. (Id. at 411.) Satawa informed the district court that the government 

was “correct.” (Id. at 412.) Satawa excused himself by reporting that Defendant had not 

previously raised this concern with Satawa, and then again affirmatively represented to the court 

that his client was mistaken, and it was a Grade A violation. We note that the government now 

concedes that its classification of Defendant’s state conviction as a Grade A violation was error 

because the charge was not for a crime of violence under this Court’s precedent. 

 As a general rule, this Court declines to rule on claims of ineffective assistance of counsel 

on direct appeal. United States v. Hunter, 558 F.3d 495, 508 (6th Cir. 2009). “We take this 

course when, as is often the case, the record is insufficient to assess the merits of the claim.” 

United States v. Smith, 600 F. App’x 991, 993 (6th Cir. 2015) (citing United States v. Warman, 

578 F.3d 320, 348 (6th Cir. 2009)). Deferring such a fact-intensive issue to a post-conviction 

proceeding may be appropriate even where the defendant raises a claim of constructive denial of 

counsel, which is not subject to the two-pronged inquiry under Strickland v. Washington, 466 
Nos. 14-2001/2002 United States v. Detloff Page 9 

U.S. 668, 687 (1984). See, e.g., Herrera-Zuniga, 571 F.3d at 591-93 (declining to rule on 

whether counsel was per se ineffective in order to allow development of a record in postconvictions proceedings). Because we find that the record in this case is inadequate to permit 

our review of Defendant’s claim of ineffective assistance of counsel, we dismiss the claim 

without prejudice. Defendant may raise the claim in post-conviction proceedings should he so 

choose. See Smith, 600 F. App’x at 994. 

III. Supervised Release Sentencing Guidelines 

 Defendant argues that his supervised release guidelines were calculated based on the false 

premise that his Michigan conviction for resisting a police officer was a violent offense, and 

therefore a Grade A violation. As described above, Defendant attempted to raise this issue pro 

se at his sentencing hearing, but encountered opposition from the government, the district court, 

and his own attorney. We have previously held that the statute under which he was convicted, 

Mich. Comp. Laws § 750.81d(1), is a divisible statute encompassing conduct that is violent as 

well as conduct that is not violent. United States v. Mosely, 575 F.3d 603, 608 (6th Cir. 2009). 

Therefore, Defendant should not have suffered a guidelines enhancement for a violent offense 

without documentation under Shepard v. United States, 544 U.S. 13 (2005) to establish that he 

was charged under the prong punishing violent conduct. The government concedes the error. 

Defendant’s supervised release sentence shall therefore be vacated and remanded to the district 

court for resentencing.2

CONCLUSION

 For the foregoing reasons, we DISMISS Defendant’s appeal of his conviction and 

sentence for mail theft, and we VACATE his sentence for violating supervised release and 

REMAND to the district court for resentencing. 

 2

Because we vacate Defendant’s sentence for violating supervised release, we need not rule on his claim 

that the district court improperly treated U.S.S.G. § 7B1.3, Application Note 4 as mandatory in determining that his 

supervised release sentence would be served consecutively to his mail theft sentence. On remand, the district court 

will of course bear in mind the advisory nature of the guidelines.