United States v. Cox

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 24, 2009
No. 08-61067 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DAVID LYNN COX,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
1:90-cr-00167
Before JONES, Chief Judge, and SMITH and DeMOSS, Circuit Judges.
PER CURIAM:*
Appellant David Lynn Cox appeals his sixty-month sentence, arguing that
the government breached its plea agreement. Finding no reversible error, we
affirm.
I.
In 1992, Cox pleaded guilty to conspiracy to distribute more than 500
grams of cocaine and was sentenced to 84 months of imprisonment and 7 years
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-61067
of supervised release. While on supervised release, Cox was indicted for
conspiracy to possess with the intent to distribute cocaine base and two counts
of distribution of cocaine base. Pursuant to a plea agreement, Cox pleaded guilty
to a bill of information charging him with distribution of cocaine base. The plea
agreement also required the government to recommend a sixteen-month
sentence on Cox’s revocation of supervised release.
At the June 29, 2006 revocation sentencing, Cox admitted he had violated
the terms of his supervised release. The Pre-Sentence Investigation Report
(PSR) recommended a sentencing range of thirty to thirty-seven months. Cox’s
counsel made mitigation arguments. The government then recommended a
sentence of sixteen months, as required by the plea agreement. The district court
declined to accept the recommendations of the government or the PSR. Citing
Cox’s criminal history, his repeated drug offenses, and a downward departure
in his 1992 sentence, the district court imposed a sixty-month sentence.
Cox subsequently filed a 28 U.S.C. § 2255 motion, arguing, inter alia, that
he was not provided an opportunity for allocution. The district court granted Cox
relief on this claim and ordered a new revocation sentencing. Prior to re-
sentencing, Cox was appointed new counsel. At the re-sentencing on October 15,
2008, Cox offered his own mitigation arguments. The government asked the
court to reject Cox’s arguments and recommended that the sixty-month sentence
stand. The district court again reviewed Cox’s criminal history and stated that
it did not believe Cox to be “sufficiently remorseful” and was “not moved” by
Cox’s mitigation arguments. The district court imposed a sentence of sixty
months, to be served consecutively to any other state or federal sentence.
II.
The sole issue on appeal is whether the government breached the plea
agreement. This court reviews whether the government has breached a plea
agreement de novo, “accepting the district court’s factual findings unless clearly
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erroneous.” United States v. Davis, 393 F.3d 540, 546 (5th Cir. 2004) (citations
omitted). However, if the issue is raised for the first time on appeal, our review
is for plain error. See Puckett v. United States, 129 S.Ct. 1423, 1428 (2009).
At re-sentencing, Cox’s counsel addressed the court after the government
had recommended imposition of a sixty-month sentence. Cox’s counsel stated
that he wanted to “remind” the government that it had recommended sixteen
months at the first revocation sentencing and that he “just thought [he]’d remind
the court and counsel of [his] understanding of what proceeded” prior to his
appointment as Cox’s counsel. Counsel then stated that he had “been under the
impression that the government was willing to at least retain in its expression
to the court what it had originally expressed to the court.”
To avoid forfeiture, “[a] party must raise a claim of error with the district
court in such a manner so that the district court may correct itself and thus,
obviate the need for our review.” United States v. Rodriguez, 15 F.3d 408, 414
(5th Cir. 1994) (quoting United States v. Bullard, 13 F.3d 154, 156 (5th Cir.
1994)). This court has previously held that informing the court that the
government had agreed to recommend a particular sentence was insufficient to
preserve an objection. See United States v. Reeves, 255 F.3d 208, 210 n.2 (5th Cir.
2001) (“[Defendant’s] counsel did not object, but only informed the court that the
government had recommended a sentence of 72 months. That statement alone
is insufficient to preserve the alleged error.”). We do not think the failure to
object in this case is materially distinguishable from Reeves. Cox’s counsel did
not state that there had been a plea agreement or that there had been a breach
of the plea agreement. Counsel repeatedly stated he wanted to “remind” the
court of the government’s prior recommendation and was “surprised by the
comments of the government.” These comments did not adequately notify the
district court of his claim before the appellate court that the government had
breached the plea agreement. Thus, we review Cox’s claim for plain error.
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III.
To show reversible plain error, the appellant must show a forfeited error
that is clear or obvious and that affects his substantial rights. See Puckett, 129
S.Ct. at 1429. The appellant ordinarily establishes this by demonstrating that
the error “affected the outcome of the district court proceedings.” Id. (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)). If the appellant makes such
a showing, this court has the discretion to correct the error but only if it
“seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
Assuming, arguendo, that the government breached the plea agreement,
any error did not affect the outcome of the proceedings. There is nothing in the
record to indicate that the district court would have sentenced Cox differently
had the government recommended a sixteen-month sentence. The district court
declined to follow the government’s recommendation for a sixteen-month
sentence at the first sentencing revocation. The district court specifically stated
that it was “not moved” by Cox’s mitigation arguments and that Cox’s criminal
history and lack of remorse for his victims justified a sixty-month sentence. Cox
has not shown that he was prejudiced by the government’s alleged breach and,
therefore, has not shown plain error. Accordingly, the judgment of the district
court is AFFIRMED.
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