United States v. Cox , 409 F. App'x 621 ( 2010 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-5216
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    WILLIAM ROY COX,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Florence.   Terry L. Wooten, District Judge.
    (4:08-cr-00878-TLW-1)
    Submitted:   September 9, 2010           Decided:   September 23, 2010
    Before KING, DUNCAN, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Kathy Price Elmore, ORR ELMORE & ERVIN, LLC, Florence, South
    Carolina, for Appellant.     William N. Nettles, United States
    Attorney, Columbia, South Carolina;         A. Bradley Parham,
    Assistant United States Attorney, Florence, South Carolina;
    Lanny A. Breuer, Assistant Attorney General, Greg D. Andres,
    Acting Deputy Assistant Attorney General, Thomas E. Booth,
    DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Pursuant to the terms of his written plea agreement,
    William Roy Cox pled guilty to one count of Hobbs Act robbery,
    in violation of 
    18 U.S.C. § 1951
    (a) (2006).                         The plea agreement
    contained      a     stipulation,          pursuant        to     Fed.      R.        Crim.     P.
    11(c)(1)(C),         through       which     the      parties       agreed            that     the
    appropriate         sentencing         range        was     120        to       130     months’
    imprisonment.         At sentencing, the district court rejected the
    stipulation, but granted the Government’s motion for a downward
    departure     based     on     Cox’s    substantial         assistance.               See     U.S.
    Sentencing Guidelines Manual (“USSG”) § 5K1.1, p.s. (2008).                                   The
    district      court     ruled      that      it     would        award      a     three-level
    reduction.          Without    the     stipulation         but    with      the    departure,
    Cox’s sentencing range was 120 to 150 months’ imprisonment.                                   The
    court continued the hearing to allow Cox to consider whether to
    withdraw his guilty plea.
    Cox    ultimately        elected      not    to     withdraw        his    guilty
    plea.      When sentencing reconvened, the district court denied
    defense counsel’s motion for a downward departure pursuant to
    USSG § 4A1.3(b)(1), p.s., or USSG § 5K2.0, p.s.                                 Counsel next
    argued   in    favor    of     a   sentence        below   Cox’s       Guidelines        range,
    citing     Cox’s     significant        mental      health       and     substance           abuse
    issues; his difficult childhood; and the nature of the offense
    conduct.        The    district        court       rejected      these      arguments         and
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    sentenced Cox to 144 months’ imprisonment.                           This appeal timely
    followed.
    On appeal, Cox asserts his sentence is procedurally
    unreasonable       because       the    district      court    failed       to    adequately
    analyze     the     statutory          sentencing     factors        set    forth      in    
    18 U.S.C. § 3553
    (a) (2006) and explain the reasons for selecting
    this particular sentence.                Because counsel relied on several of
    the § 3553(a) sentencing factors to support her request for a
    sentence below Cox’s Guidelines range, this issue is preserved
    for appellate review.             See United States v. Lynn, 
    592 F.3d 572
    ,
    578 (4th Cir. 2010).              Accordingly, this court will review the
    adequacy of the district court’s analysis and explanation for an
    abuse of discretion, and any error will in turn be reviewed for
    harmlessness.        
    Id. at 576
    .
    We review a sentence for reasonableness, applying an
    abuse of discretion standard.                   Gall v. United States, 
    552 U.S. 38
    , 51 (2007); see also United States v. Llamas, 
    599 F.3d 381
    ,
    387   (4th        Cir.     2010).          This       review     requires         appellate
    consideration         of        both      the       procedural        and        substantive
    reasonableness       of     a    sentence.           Gall,     
    552 U.S. at 51
    .   In
    determining procedural reasonableness, we consider whether the
    district     court       properly       calculated      the    defendant’s            advisory
    Guidelines range, considered the § 3553(a) factors, analyzed any
    arguments presented by the parties, and sufficiently explained
    3
    the selected sentence.       Id.    “Regardless of whether the district
    court imposes an above, below, or within-Guidelines sentence, it
    must place on the record an individualized assessment based on
    the particular facts of the case before it.”               United States v.
    Carter, 
    564 F.3d 325
    , 330 (4th Cir. 2009) (internal quotation
    marks omitted).     If the court finds “no significant procedural
    error,” it next assesses the substantive reasonableness of the
    sentence,     taking      “‘into    account     the     totality    of     the
    circumstances, including the extent of any variance from the
    Guidelines range.’”       United States v. Morace, 
    594 F.3d 340
    , 346-
    47 (4th Cir.) (quoting Gall, 
    552 U.S. at 51
    ), petition for cert.
    filed, __ U.S.L.W. __ (U.S. July 16, 2010) (No. 09-4007).
    We have thoroughly reviewed the record and conclude
    Cox’s claim of Carter error lacks merit.                The district court
    addressed all aspects of counsel’s argument in favor of a below-
    Guidelines   sentence.       Although     the   court    gave   Cox’s   mental
    health issues and difficult childhood detailed consideration, it
    ultimately    concluded     those   factors     were    eclipsed   by    Cox’s
    extensive criminal history and the severity of his conduct.                The
    court’s recommendation that Cox receive mental health and drug
    abuse evaluations upon his incarceration further evidences its
    consideration of these issues.
    The   court     also    adequately        considered   counsel’s
    arguments pertaining to the nature of the offense conduct and
    4
    Cox’s criminal history.                  The court emphasized that Cox pleaded
    guilty    to    robbery,        which      is    a     violent       offense.         The    court
    further     noted       that       Cox    had     committed          other     robberies      and
    continued       to     engage       in    criminal       conduct           after   periods     of
    incarceration.              This     recidivism,             despite       incarceration      and
    supervision,         caused     the       district      court        “great    concern,”      and
    properly influenced the determination of Cox’s sentence.
    This    court       has    explained          that    the    sentencing       court
    “‘must state in open court the particular reasons supporting its
    chosen sentence.’”             Carter, 
    564 F.3d at 328
     (quoting 
    18 U.S.C. § 3553
    (c)).          An extensive explanation is not required as long as
    the appellate court is satisfied “‘that [the district court] has
    considered the parties’ arguments and has a reasoned basis for
    exercising [its] own legal decisionmaking authority.’”                                      United
    States v. Engle, 
    592 F.3d 495
    , 500 (4th Cir.) (quoting Rita v.
    United    States,        
    551 U.S. 338
    ,        356     (2007))       (alterations       in
    original),      petition        for      cert.    filed,        
    78 U.S.L.W. 3764
          (U.S.
    June 10, 2010) (No. 09-1512).                        We are confident the district
    court did so in this case.
    Finally, Cox contends the court failed to address his
    argument that          he   was     being       repeatedly          punished    for    the    same
    criminal conduct.              The robbery to which Cox pled guilty also
    formed the basis for the revocation of his supervised release,
    for   which      he     was     sentenced         to    time        served.        Cox      served
    5
    approximately eleven months in prison in conjunction with that
    revocation.         Cox     maintains     the       district    court        should    have
    factored this into its determination of his sentence for the
    substantive offense.
    However,        Cox’s    incarceration            for     his      supervised
    release violation is a separate and distinct punishment.                                See
    United States v. Evans, 
    159 F.3d 908
    , 913 (4th Cir. 1998).                             Cox
    has pointed us to no controlling authority that would mandate
    the district court to account for that sentence when imposing
    sentence on the substantive offense, and we have found none.
    Moreover,     the    fact     that    this         conduct     also    constituted        a
    violation of the terms of Cox’s supervised release was properly
    considered in conjunction with the calculation of Cox’s criminal
    history category.         See USSG § 4A1.1(d).
    For     these    reasons,        we    conclude    the     district       court
    satisfied its obligation under Gall and Carter to evaluate the
    § 3553(a) sentencing factors, consider the parties’ arguments,
    and   explain     the     sentence      it        selected    for     this    particular
    defendant.      Accordingly, we affirm Cox’s sentence.                       We dispense
    with oral argument because the facts and legal contentions are
    adequately    presented       in    the   materials          before    the     court    and
    argument would not aid the decisional process.
    AFFIRMED
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