United States of America v. Pouncy et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Case No: 23-20262
Plaintiff, 	Hon. F. Kay Behm
U.S. District Judge
v.
D-1 OMAR RASHAD POUNCY,
Defendant.
________________________________/
ORDER DENYING DEFENDANT’S MOTION FOR SENTENCING
EVALUATION (ECF No. 368) AND FOR AMICUS CURIAE
PARTICIPATION (ECF No. 415)
Before the court is Defendant Omar Pouncy’s Motion for a
Sentencing Evaluation (ECF No. 368). The government responded
(ECF No. 395), and Pouncy timely replied (ECF No. 414). Also before
the court is Pouncy’s related motion to invite the participation of amicus
curiae on the question of whether such an evaluation would comport
with federal criminal procedure (ECF No. 415), to which the
government also responded (ECF No. 430), and no timely reply was
filed (and none is necessary).1
1 The response was mailed by first class mail to Pouncy on November 25,
2025. ECF No. 430, PageID.3296. His reply was due on Friday, December 5, 2025.
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In this motion, Pouncy seeks a hearing and sentencing evaluation
pursuant to People v. Cobbs, 443 Mich. 276 (1993), commonly referred
to as a Cobbs hearing or evaluation. 	Cobbs permits a Michigan state
court defendant to enter a guilty plea in reliance on the trial court’s
initial evaluation of an appropriate sentence, subject to the
defendant’s right to withdraw his plea if the sentence actually imposed
exceeds the preliminary evaluation.
Cobbs is a Michigan state court procedure. Federal criminal
procedure works differently. Federal Rule of Criminal Procedure
11(c)(1) states that “[a]n attorney for the government and the
defendant’s attorney, or the defendant when proceeding pro se, may
discuss and reach a plea agreement. The court must not participate in
these discussions.” Fed. R. Crim. P. 11 (c)(1). The policy rationale
behind the Rule is that “the judge should not participate in plea
discussions leading to a plea agreement” because of the “unequal
positions of the judge and the accused.” 	See id. advisory committee’s
note to 1974 amendment. “[A] judge’s participation in plea negotiation
See Fed. R. Crim. P 45(c). However, even if an untimely reply is received and/or
Pouncy claims external obstacles not within his control prevented his timely
submitting his reply brief, the court finds these briefings sufficient and that no
reply is necessary to decide the issues presented.
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is inherently coercive,” even if it is not intended to be. 	United States v.
Barrett, 982 F.2d 193, 194 (6th Cir. 1992), abrogated on other grounds
by Davila I, 133 S. Ct. 2139 (2013). Thus “Rule 11 absolutely prohibits
judicial participation in plea negotiations . . . .” 	United States v. Ushery,
785 F.3d 210, 219 (6th Cir. 2015). And a judge cannot “tell the
defendant prior to accepting a guilty plea what sentence [s]he would
likely give should the plea be accepted.” 	United States v. Harris, 635
F.2d 526, 528 (6th Cir. 1980). 	Cobbs evaluations are permitted in
Michigan state courts because state courts are not required to follow the
procedures set forth in Federal Rule of Criminal Procedure 11. 	Jones v.
Parke, 734 F.2d 1142, 1148 (6th Cir. 1984).
The motion for sentencing evaluation (ECF No. 368) is DENIED.
The court finds no particular novelty or difficulty in reaching this
conclusion and the participation of amicus curiae would neither be
“useful” nor “otherwise necessary” to the administration of justice. 	See
United States v. State of Mich., 940 F.2d 143, 165 (6th Cir. 1991). The
motion for amicus curiae participation (ECF No. 415) is also DENIED.
The court notes that given the existing clarity on this issue, Defendant’s
motion for amicus participation may be an attempt to delay his trial
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(and at minimum, requested 28 days of delay). 	See ECF No. 415,
PageID.3215 (asking for, at minimum, 28 days to be added to the
current schedule to allow briefing, and more if the court were to
schedule argument – in addition to the briefing on the motion itself).
The court makes this note given Defendant’s various other motions that
allege improper delay in these proceedings. 	E.g. ECF No. 427.
SO ORDERED.
Date: December 10, 2025 	s/F. Kay Behm
F. Kay Behm
United States District Judge
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