US v. William Cox, No. 09-5216 (4th Cir. 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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5216 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM ROY COX, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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). contained a 11(c)(1)(C), stipulation, through appropriate which sentencing imprisonment. pursuant the range The plea agreement to Fed. parties was R. Crim. agreed 120 to that 130 P. the months At sentencing, the district court rejected the stipulation, but granted the Government s motion for a downward departure based on Cox s substantial assistance. U.S. See Sentencing Guidelines Manual ( USSG ) § 5K1.1, p.s. (2008). district court reduction. ruled Without that the it would stipulation but award a with The three-level 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 plea. ultimately elected not to withdraw his guilty 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. argued in favor citing Cox s of a sentence significant mental below Cox s health and Counsel next Guidelines substance range, abuse issues; his difficult childhood; and the nature of the offense conduct. The district court rejected 2 these arguments and sentenced Cox to 144 months imprisonment. This appeal timely followed. On appeal, Cox asserts his sentence is procedurally unreasonable because analyze statutory the the district court sentencing failed factors set to adequately 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). consideration of reasonableness of both a This sentence. requires procedural the review and substantive U.S. at Gall, 552 appellate 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 belowGuidelines sentence. Although the court gave Cox s mental health issues and difficult childhood detailed consideration, it ultimately concluded those factors were eclipsed by extensive criminal history and the severity of his conduct. Cox s 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. guilty to further robbery, The court emphasized that Cox pleaded which is had noted that Cox to engage in continued incarceration. supervision, violent offense. committed other The court robberies criminal conduct after recidivism, despite and incarceration This caused a the district court great periods of and 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 Carter, 564 F.3d at 328 (quoting 18 U.S.C. chosen sentence. § 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, original), 551 petition U.S. for 338, cert. 356 (2007)) filed, June 10, 2010) (No. 09-1512). 78 (alterations U.S.L.W. 3764 in (U.S. We are confident the district court did so in this case. Finally, Cox contends the court failed to address his argument that he was criminal conduct. being repeatedly punished for the same The robbery to which Cox pled guilty also formed the basis for the revocation of his supervised release, for which he was sentenced to 5 time served. Cox served 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. For See USSG § 4A1.1(d). 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 defendant. the sentence it selected for this Accordingly, we affirm Cox s sentence. particular 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 6

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