United States v. Cox

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 21 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-1378
v. District of Colorado
WILLIAM ALLEN COX, (D.C. No. 03-CR-444-RB)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
Defendant-Appellant William Allen Cox pled guilty to the charges in a
three-count federal indictment. Between the indictment and the plea in the
federal case, he pled guilty to second-degree murder in state court in Colorado.
In the federal case, he was sentenced to an aggregate sentence of 168 months, to
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
run consecutively to his sentence on the state charge, which had not yet been
imposed. Mr. Cox preserved an objection to the consecutive nature of the
sentence. In United States v. Williams , 46 F.3d 57 (10th Cir. 1995), this Court
held that it is permissible for a district court to order a sentence to run
consecutively to a possible future state sentence. There is a split among the
circuits on this issue, with the Second, Fifth, Eighth, and Eleventh Circuits
holding such sentences permissible, and the Ninth, Sixth, and Seventh Circuits
taking the opposite view. Compare Salley v. United States , 786 F.2d 546, 547 (2d
Cir. 1986); United States v. Brown , 920 F.2d 1212, 1216-17 (5th Cir. 1991);
United States v. Mayotte , 249 F.3d 797, 799 (8th Cir. 2001); and United States v.
Ballard , 6 F.3d 1502, 1510 (11th Cir. 1993), with United States v. Quintero , 157
F.3d 1038, 1039-41 (6th Cir. 1998); Romandine v. United States , 206 F.3d 731,
737-39 (7th Cir. 2000); and United States v. Clayton , 927 F.2d 491, 492-93 (9th
Cir. 1991).
In his brief in this Court, Mr. Cox acknowledges that, because of the panel
ruling in Williams , “he cannot prevail on this issue at the Tenth Circuit panel
level, but will ask for a hearing en banc in which he will ask the full Tenth
Circuit to review this issue.” He is correct about that. The panel can do nothing
for him, and will await with interest his petition for rehearing en banc .
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The judgment of the United States District Court for the District of
Colorado is therefore AFFIRMED .
Entered for the Court,
Michael W. McConnell
Circuit Judge
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