United States v. Cox ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4858
GARY EUGENE COX,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4002
THOMAS LEE ASHBY, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-00-146)
Submitted: November 30, 2001
Decided: January 16, 2002
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
No. 00-4858 affirmed and No. 01-4002 vacated and remanded by
unpublished per curiam opinion.
2 UNITED STATES v. COX
COUNSEL
John F. McGarvey, Richmond, Virginia; Samuel P. Simpson, V,
MONTGOMERY & SIMPSON, Richmond, Virginia, for Appellants.
Kenneth E. Melson, United States Attorney, Brian R. Hood, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Thomas L. Ashby, Jr., was convicted by a jury of conspiracy to
possess with intent to distribute and to distribute an unspecified quan-
tity of cocaine base (crack) between 1994 and 2000 in violation of 21
U.S.C. § 846 (1994) (Count One), and was sentenced to a term of 324
months imprisonment. Gary Eugene Cox was convicted in the same
trial of distributing crack on September 1, 1999 (Count Fifteen), and
received a sentence of thirty-seven months.1 Cox and Ashby appeal
their sentences. For the reasons explained below, we affirm Cox’s
sentence but vacate Ashby’s sentence and remand for resentencing.
The government’s evidence showed that Ashby and his son,
Thomas Ward, co-owned an auto repair shop, A & W Complete Auto
Repair ("A&W"), which operated first on Gilmer Street and after
1997 on Brook Road in Richmond, Virginia. Ward employed a num-
ber of individuals who sold crack for him at the shop at both loca-
tions. He also supplied crack to Ashby, who sometimes paid his
employees partially in crack, and used crack to buy stolen merchan-
1
Ashby was acquitted of Count Eleven, which charged that he distrib-
uted crack on September 23, 1999. Cox was acquitted of Count One
(conspiracy) and Count Fourteen, which charged that he distributed crack
on July 28, 1999.
UNITED STATES v. COX 3
dise. Ashby collected "yard fees" from individuals who sold drugs for
Ward in the lot next to his shop at both its locations. Two women who
sold crack for Ward at the shop on Gilmer Street also received crack
from Ashby in return for oral sex. Cox worked for Ashby in the shop,
obtained crack from Ward, and sold crack at the shop. On September
1, 1999, Cox exchanged crack for stolen property supplied by a confi-
dential informant acting under the direction of law enforcement
authorities.
After Ashby and Cox were charged but before they were tried, the
Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a reasonable
doubt." In an effort to comply with Apprendi, the government submit-
ted a special verdict form asking the jury to decide whether each
charged offense involved more than fifty grams of crack or a lesser
amount. The jury determined that Count One, the conspiracy charge,
involved more than fifty grams of crack. At his sentencing, Ashby
argued unsuccessfully that, because drug quantity was not charged in
the indictment, the maximum penalty permissible for his offense was
twenty years.
This court has since applied Apprendi to drug offenses and held
that the specific drug quantities that trigger enhanced statutory maxi-
mum sentences under § 841(b)(1)(A) and (B) "must be treated as an
element of an aggravated drug trafficking offense, i.e., charged in the
indictment and proved to the jury beyond a reasonable doubt." United
States v. Promise, 255 F.3d 150, 156-57 (4th Cir. 2001) (en banc),
petition for cert. filed, Sept. 20, 2001 (No. 01-6398). Further, we have
held that, when a specific threshold drug quantity is not charged in the
indictment and a sentence of more than twenty years—the statutory
maximum term under 21 U.S.C.A. § 841(b)(1)(C)—is imposed, the
error is jurisdictional in nature, "seriously affects the fairness, integ-
rity or public reputation of judicial proceedings," and should be
noticed by the appeals court. United States v. Cotton, 261 F.3d 397,
405-06 (4th Cir. 2001), petition for cert. filed, Oct. 31, 2001 (No. 01-
687). Here, the government concedes that Ashby’s 324-month sen-
tence constitutes plain error under Apprendi. Accordingly, we vacate
4 UNITED STATES v. COX
his sentence and remand for resentencing to a term not to exceed
twenty years imprisonment.2
Cox contests the district court’s decision not to give him an adjust-
ment for acceptance of responsibility. The district court’s factual find-
ings supporting a decision not to give an adjustment for acceptance
of responsibility are reviewed for clear error. United States v. Holt,
79 F.3d 14, 17 (4th Cir. 1996). Cox argues that he accepted responsi-
bility for distributing crack, for which he was convicted, but went to
trial to contest his participation in the conspiracy, of which he was
acquitted. A defendant may receive an adjustment for acceptance of
responsibility even after requiring the government to prove his guilt
at trial if he has gone to trial to preserve issues unrelated to factual
guilt. USSG § 3E1.1, cmt. n.2. In this circumstance, the determination
that the defendant has accepted responsibility is based on his pre-trial
statements and conduct. Id. Here, Cox’s attorney conceded at sentenc-
ing that Cox had not offered to plead guilty to crack distribution prior
to trial. Nor did he produce any evidence of any willingness on his
part to admit distributing crack until after his conviction. Conse-
quently, the district court did not clearly err in denying Cox an adjust-
ment for acceptance of responsibility.
We therefore affirm Cox’s sentence. We vacate Ashby’s sentence
and remand for resentencing to a term of imprisonment not to exceed
twenty years. 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.
No. 00-4858 - AFFIRMED
No. 01-4002 - VACATED AND REMANDED
2
Ashby also challenges the district court’s determinations that he had
a leadership role in the conspiracy and that he was responsible for more
than 1.5 kilograms of crack for purposes of computing his sentencing
guideline range. We find that these factual findings were supported by
the evidence produced at trial.