United States v. Michael Cox, Jr. ( 2017 )

Case: 16-40509 Document: 00513835170 Page: 1 Date Filed: 01/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40509 FILED
Summary Calendar January 13, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MICHAEL WARREN COX, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:13-CR-266-2
Before JONES, BARKSDALE, and COSTA, Circuit Judges.
PER CURIAM: *
Michael Warren Cox, Jr., was convicted by a jury of conspiracy to
possess, with intent to manufacture and distribute, methamphetamine, in
violation of 21 U.S.C. § 846, and sentenced, inter alia, to life imprisonment. He
raises numerous issues on appeal.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 16-40509
Cox first claims the evidence was insufficient to support his conviction.
Because he preserved this issue in district court, review is de novo. E.g., United
States v. Alaniz, 726 F.3d 586, 600 (5th Cir. 2013).
When viewed in the requisite light most favorable to the Government,
with all reasonable inferences made in support of the jury’s verdict, the
evidence was sufficient to support Cox’s conspiracy conviction. See United
States v. Romans, 823 F.3d 299, 311 (5th Cir.), cert. denied, 137 S. Ct. 195
(2016). Contrary to his contention, the evidence was sufficient to establish
more than a single agreement to buy or sell drugs. See United States v.
Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (en banc). The evidence established
he purchased methamphetamine from two individuals and distributed it with
McKenzie; Cox sold methamphetamine to numerous people; and buyers
participated in the conspiracy by helping to store, repackage, and distribute
the methamphetamine. The jury could reasonably infer the existence of an
agreement between Cox and McKenzie based on the circumstantial evidence.
See United States v. Zamora, 661 F.3d 200, 209 (5th Cir. 2011). And, the
evidence shows a reasonable trier of fact could conclude, beyond a reasonable
doubt, that Cox agreed with McKenzie to violate the narcotics law by
distributing methamphetamine; Cox had knowledge of the agreement; and he
voluntarily participated in it. See Romans, 823 F.3d at 311.
Next, Cox contends the Government made various improper remarks
during closing argument, constituting prosecutorial misconduct. Cox did not
object to the remarks in district court, however; therefore, review is limited to
plain error. E.g., United States v Rashad, 687 F.3d 637, 643 (5th Cir. 2012).
The remarks concerning why McKenzie did not testify at trial were not
improper because they were made in response to defense counsel’s closing
argument, and they were based on the evidence presented at trial. The
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No. 16-40509
remarks pointing out factual errors made by defense counsel in closing
argument were not improper because the Government did not personally
attack or denigrate defense counsel. And, the remark that Cox had equal
power to subpoena witnesses was not improper: it did not implicate Cox’s right
not to testify, and it did not suggest or imply the Government’s counsel
personally made the decision to charge Cox with conspiracy. See United States
v. Wall, 389 F.3d 457, 474 (5th Cir. 2004); United States v. Palmer, 37 F.3d
1080, 1086 (5th Cir. 1994).
Moreover, even if any of the Government’s remarks were improper, Cox
has not shown they had a strong prejudicial effect. Further, the court gave a
general instruction that the arguments made by counsel were not evidence.
Because jurors are presumed to follow their instructions, the court’s
instructions were likely sufficient to cure any prejudicial effect. See United
States v. Anderson, 755 F.3d 782, 798 (5th Cir. 2014). In view of the strong
evidence against him, Cox has not shown that any of the remarks “cast serious
doubt on the correctness of the jury’s verdict”. See United States v. Reagan,
725 F.3d 471, 492 (5th Cir. 2013). Therefore, he has not shown any of the
claimed improper remarks constituted plain (clear or obvious) error or affected
his substantial rights. See Rashad, 687 F.3d at 643.
For his third claim, Cox maintains the oral and written judgments
conflict because, at sentencing, the court referred to a list of special conditions
of supervised release in the presentence investigation report (PSR), rather
than pronouncing each special condition in its oral judgment. The record
shows the PSR, which was provided to the parties, included the
recommendation of mandatory and special conditions of supervised release.
Because Cox was aware of the recommended special conditions and bypassed
his opportunity to object at sentencing, the plain error standard of review again
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applies. See United States v. Rouland, 726 F.3d 728, 730–34 (5th Cir. 2013).
There is no conflict between the oral and written judgments because the court
referred to the special conditions recommended in the PSR, and the written
judgment imposed the same recommendations. Cox was aware of the
recommended special conditions and had opportunity to object. He has not
shown reversible plain error. See id. at 730–34.
Finally, Cox contends the special conditions of supervised release
requiring him to give the probation officer access to his financial information
and requiring him to obtain a general education development (GED) certificate
are substantively unreasonable. (The Government contends this issue is not
ripe for review because Cox was sentenced to life imprisonment and may never
be released from prison and placed on supervised release. As shown infra, we
need not reach that issue.)
Because Cox did not object to these special conditions in district court,
review is limited again to plain error. See United States v. Weatherton, 567
F.3d 149, 152 (5th Cir. 2009). Although the court did not give specific reasons
for imposing the special conditions of supervised release at issue, the record
indicates there is a reasonable relationship between them and the sentencing
goals of 18 U.S.C. § 3553(a). See United States v. Caravayo, 809 F.3d 269, 275
(5th Cir. 2015). The special condition requiring Cox to provide his financial
information to the probation officer is reasonably related to the requirement
that he pay for drug treatment and testing, and mental health treatment. The
special condition requiring Cox to obtain a GED is reasonably related to his
need for educational and vocation training. See 18 U.S.C. § 3553(a)(2)(D). See
Weatherton, 567 F.3d at 152.
AFFIRMED.
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