Filed: Nov. 06, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4373 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LIONEL LAMONT COX, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:12-cr-00288-FL-1) Argued: September 19, 2014 Decided: November 6, 2014 Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished opinion. Judge Keenan wrote the opinion,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4373 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LIONEL LAMONT COX, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:12-cr-00288-FL-1) Argued: September 19, 2014 Decided: November 6, 2014 Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished opinion. Judge Keenan wrote the opinion, ..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4373
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LIONEL LAMONT COX,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:12-cr-00288-FL-1)
Argued: September 19, 2014 Decided: November 6, 2014
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Wilkinson and Judge Duncan joined.
ARGUED: G. Alan DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Shailika K. Shah,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
Lionel L. Cox was convicted by a jury of two counts of
possession of a firearm by a felon, and of aiding and abetting
Neville S. Ward, Jr. in the commission of the same offenses, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2. The
district court sentenced Cox to serve a term of 100 months’
imprisonment. On appeal, Cox contends that the district court
erred: (1) in admitting certain evidence of “bad acts” under
Federal Rule of Evidence 404(b); (2) in refusing to give a
proposed jury instruction regarding the charge of aiding and
abetting; and (3) in applying a sentencing enhancement for
possession of three or more firearms, which resulted in a
procedurally unreasonable sentence. Upon our review, we affirm
the district court’s judgment.
I.
The charges against Cox stemmed from his participation in
two incidents involving the sale of firearms to Selma Jerome, a
police informant. These sales took place at Cox’s workplace, a
Texaco Express Lube in Smithfield, North Carolina (the Texaco),
where Cox first met Jerome and informed him that Cox had drugs
and firearms for sale.
On May 14, 2012, Jerome participated in a controlled
purchase of a firearm at the Texaco (the May 14 incident). To
3
arrange the transaction, Cox placed a telephone call to Jerome,
informing him that Cox had a firearm for sale. When Jerome
arrived at the Texaco, Cox stated that Neville Ward would be
bringing the gun. After about 30 minutes, Ward arrived with the
firearm, which was wrapped in a towel. Because Jerome did not
want to handle the gun, he asked Cox to get a “gym bag” from
Jerome’s car. Cox obtained the bag and went inside the Texaco
where he and Ward cleaned the firearm. Cox later gave Jerome
the bag containing the gun, and Jerome paid Cox $360.
On June 27, 2012, Jerome participated in another controlled
purchase of a firearm involving Cox (the June 27 incident). Cox
again placed a telephone call to Jerome to tell him that Cox had
a firearm for sale. After Jerome agreed to purchase the firearm
at the Texaco, Cox informed Jerome that Cox would not be present
but that Ward would conduct the transaction. Jerome arrived at
the Texaco where Ward gave him the firearm in exchange for $360.
After Jerome paid Ward, Jerome placed a telephone call to Cox
informing him that the transaction had been completed.
In August 2012, a grand jury returned a two-count
indictment against Cox for his role in the May 14 and June 27
incidents, charging him with two counts of possession of a
firearm by a convicted felon and of aiding and abetting Ward, a
convicted felon, in the commission of the same offenses. Before
Cox’s trial, the government filed a notice of intent to present
4
evidence under Federal Rule of Evidence 404(b) relating to a
third firearm transaction that occurred on May 21, 2012 (the May
21 incident).
At trial, over Cox’s objection, the district court admitted
evidence that about a week before the May 21 incident, Cox had
asked Sherard Brunson, Cox’s acquaintance, whether Brunson had a
gun for sale. After Cox and Brunson engaged in several
conversations regarding firearms, they agreed to sell a gun to
Jerome on May 21.
Jerome initially planned to meet Brunson at a Wal-Mart
parking lot to conduct the firearm sale, but the meeting was
postponed when Brunson could not obtain the firearm. Later that
day, Cox directed Brunson to meet Jerome and Cox at the Texaco
to carry out the transaction. When Jerome arrived at the
Texaco, Cox placed a telephone call to Brunson and directed him
to park his car in a certain location. Jerome and Brunson
entered the bathroom at the Texaco, where Brunson gave Jerome a
gun in exchange for $350.
The district court gave the jury a limiting instruction
relating to this evidence of the May 21 incident. The court
told the jury that it could consider this evidence for purposes
of evaluating Cox’s “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
Additionally, the court informed the jury that it was not
5
permitted to consider evidence of the May 21 incident as
evidence of Cox’s general bad character or of his propensity to
engage in criminal conduct.
At the close of trial, the district court considered the
parties’ proposed jury instructions. As relevant to this
appeal, Cox submitted a jury instruction addressing certain
proposed principles involving aiding and abetting, which the
district court declined to give. The district court also
repeated its cautionary instruction limiting the jury’s
consideration of the evidence relating to the May 21 incident.
After the jury found Cox guilty of both counts of
possession of a firearm by a convicted felon and of aiding and
abetting the commission of these offenses, the district court
conducted the sentencing phase of trial. The probation officer
who prepared the presentence report (PSR) recommended a total
offense level of 24, which included a two-level enhancement for
Cox’s possession of three firearms, namely, one firearm during
each of the May 14, May 21, and June 27 incidents. This
enhancement was applied in accordance with United States
Sentencing Guidelines (U.S.S.G.) § 2K2.1(b)(1)(A). Applying
this enhancement and other sentencing factors, the probation
officer recommended an advisory guidelines range of 63 to 78
months’ imprisonment.
6
Based on the seriousness of Cox’s criminal history and
uncharged conduct involving marijuana distribution and
possession of firearms in public places, the government
requested that the district court sentence Cox to the statutory
maximum of 120 months, a term of imprisonment well exceeding the
recommended guidelines range. After considering the parties’
arguments and Cox’s personal statement to the court, the
district court adopted the PSR’s recommended guidelines range
but concluded that an upward departure was warranted under
U.S.S.G. §§ 5K2.21 and 4A1.3, based on uncharged conduct, the
seriousness of Cox’s criminal history, and the likelihood that
Cox would commit other crimes. The court sentenced Cox to serve
a term of 100 months in prison, and concluded that this sentence
also was justified based on the factors set forth in 18 U.S.C.
§ 3553(a). Cox timely filed this appeal.
II.
Cox presents three arguments on appeal. He challenges: (1)
the admission of evidence under Rule 404(b) regarding the May 21
incident; (2) the rejection of his proposed jury instruction on
aiding and abetting; and (3) the procedural reasonableness of
his sentence. We address these arguments in turn.
7
A.
Cox first asserts that the district court abused its
discretion under Rule 404(b) in admitting evidence regarding the
May 21 incident, because such evidence was neither relevant nor
necessary to prove that he possessed firearms during the charged
incidents of May 14 and June 27. According to Cox, the
challenged evidence failed to show that he actually or
constructively possessed the gun during the May 21 incident,
and, instead, impermissibly showed that he had a general
propensity to commit “bad acts.” Cox also argues that this
evidence should have been excluded as being unfairly prejudicial
under Rule 403. We disagree with Cox’s arguments.
We review for abuse of discretion a district court’s
admission of evidence under Rule 404(b). United States v.
McBride, 676 F.3d 385, 395 (4th Cir. 2012); United States v.
Lighty,
616 F.3d 321, 351 (4th Cir. 2010); United States v.
Queen,
132 F.3d 991, 995 (4th Cir. 1997). Rule 404(b)(1) does
not permit “the admission of evidence of other wrongs or acts
solely to prove a defendant’s bad character.”
Lighty, 616 F.3d
at 351. However, such evidence is admissible when introduced
for another purpose, including to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.”
Id. (quoting Fed. R. Evid.
404(b)(2)) (emphasis added).
8
We have explained that Rule 404(b) allows for admission of
evidence regarding uncharged “bad acts” if the evidence is “(1)
relevant to an issue other than the general character of the
defendant; (2) necessary to prove an element of the charged
offense; and (3) reliable.” 1 Id. at 352 (citation and internal
quotation marks omitted). Additionally, the probative value of
the challenged evidence cannot be substantially outweighed by
the “unfair prejudice” that would result from admission of the
evidence.
Id. (citing Fed. R. Evid. 403).
In the present case, the government bore the burden of
proving that Cox knowingly possessed the firearms during the May
14 and June 27 incidents. Although evidence relating to the May
21 incident did not show whether Cox possessed a firearm on May
14 and June 27, the challenged evidence was relevant and
necessary in establishing the element of knowledge.
When considered in the context of the other evidence, the
evidence concerning the May 21 incident was relevant to show
that Cox actively and knowingly participated in a pattern of
procuring, possessing, and selling firearms. In the days before
the May 21 incident, Cox questioned Brunson about whether he had
1
In the present case, Cox addresses only the issues of
relevance and necessity. He does not challenge the reliability
of the testimony given by Jerome and Brunson regarding the May
21 incident.
9
a firearm for sale. Cox directly was involved in arranging for
Brunson to sell Jerome a firearm at Cox’s workplace when Cox
would be present at that location. Cox’s conduct included
discussing the price of the firearm with Brunson and Jerome, as
well as directing Brunson where to park his vehicle at the
Texaco.
The timing of the three firearm transactions further
demonstrates the relevance of the May 21 incident. Over the
course of only six weeks, Cox participated in three firearm
sales at his workplace. The May 21 incident occurred one week
after the first charged offense and four weeks before the second
charged offense, supporting the district court’s conclusion that
the May 21 incident was related sufficiently to the charged
offenses for purposes of Rule 404(b). See United States v.
Johnson, 617 F.3d 286, 297 (4th Cir. 2010) (explaining that the
closer a prior act is related to the charged conduct in time,
pattern, or state of mind, the greater the potential relevance).
Evidence regarding the May 21 incident also was necessary
to show that Cox knowingly possessed a firearm on May 14 and
June 27. During Cox’s opening argument to the jury, he
contended that his involvement in the charged firearm
transactions was limited to introducing Jerome, a Texaco
customer who wanted to purchase a firearm, to Ward. By
suggesting that he was an innocent “matchmaker,” Cox placed in
10
dispute the issue whether he knowingly possessed a firearm on
May 14 and June 27. The government’s evidence regarding the May
21 incident, including testimony from both the buyer and the
seller regarding Cox’s active role in the transaction, directly
refuted Cox’s “innocent matchmaker theory” and established Cox’s
knowing participation in the acts charged in the indictment.
Therefore, we conclude that the evidence concerning the May 21
incident was both relevant and necessary to proving the
knowledge element of the charged offenses. See Lighty, 616 F.3d
at 352.
We further conclude that, in view of the limiting
instruction provided by the district court, the evidence of the
May 21 incident was not unduly prejudicial under Rule 403. See
Queen, 132 F.3d at 997 (explaining that when a judge gives a
404(b) limiting instruction and when the defendant is properly
notified of the government’s intent to admit evidence under Rule
404(b), fear of prejudice subsides). The jury was instructed in
very clear terms that it was not permitted to consider the
evidence of the May 21 incident as showing Cox’s propensity to
commit criminal acts or his general bad character. Also, the
district court properly explained that the evidence only could
be considered for limited purposes, including proving whether
Cox knowingly participated in the criminal acts charged in the
indictment. Accordingly, we hold that the district court did
11
not abuse its discretion in admitting evidence relating to the
May 21 incident.
B.
Cox next asserts that the district court erred in
instructing the jury with respect to the charge that he aided
and abetted Ward in the knowing possession of a firearm by a
felon. Cox primarily focuses on the court’s failure to give a
proposed instruction that would have required the jury to find
that Cox had actual knowledge of Ward’s status as a convicted
felon. However, after examining the present record and
applicable authority, we conclude that Cox did not preserve this
issue for appeal.
Under Federal Rule of Criminal Procedure 30(d), a defendant
who disagrees with any jury instruction, or the district court’s
failure to give a proposed instruction, must inform the court of
the grounds for objection before jury deliberations begin. When
a defendant has failed to object in accordance with this Rule,
his argument on appeal is subject to plain error review. See
Fed. R. Crim. P. 30(d); United States v. Nicolaou, 180 F.3d 565,
569 (4th Cir. 1999).
In the present case, after denying Cox’s proposed
instruction requiring that the jury find he actually knew Ward
was a convicted felon, the district court instructed the jury
more generally. The instruction given by the court stated that
12
to convict Cox of aiding and abetting under Section 922(g), the
government must establish that Cox (1) “knew that the crime
charged was to be committed or was being committed;” (2)
“knowingly did some act for the purpose of aiding or encouraging
the commission of [the] crime;” and (3) “acted with the
intention of causing the crime charged to be committed.” Cox
did not object to this instruction, nor did he object to the
court’s failure to give his proposed instruction. We therefore
review for plain error Cox’s challenge to the district court’s
failure to give his proposed jury instruction.
To establish plain error, a defendant must show (1) that
the district court committed an “error” (2) that was “plain,”
and that (3) the error affected the defendant’s substantial
rights, impacting the outcome of his trial. 2 United States v.
Olano, 507 U.S. 725, 732 (1993); United States v. Woods,
710
F.3d 195, 202 (4th Cir. 2013) (citation omitted). “An error is
plain ‘if the settled law of the Supreme Court or this circuit
establishes that an error has occurred.’” United States v.
Carthorne,
726 F.3d 503, 516 (4th Cir. 2013) (quoting United
States v. Maxwell,
285 F.3d 336, 342 (4th Cir. 2002)); see also
2
If the defendant establishes these elements, “we may
nevertheless decline to notice the error unless it seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Woods, 710 F.3d 195, 202 (4th
Cir. 2013) (citation and internal quotation marks omitted).
13
United States v. Wynn, 684 F.3d 473, 480 (4th Cir. 2012)
(holding that any error was not plain when this court had never
addressed the issue, and other circuits are split on the issue).
Neither this Court nor the Supreme Court has addressed the
issue whether the government must prove that a defendant charged
with aiding and abetting under Section 922(g) was aware that the
principal actor is a convicted felon. Additionally, our sister
circuits are not in accord on this issue. Compare United States
v. Gardner, 488 F.3d 700, 716 (6th Cir. 2007) (requiring the
government to establish the defendant “knew or had cause to know
of” the principal’s status as a felon), and United States v.
Xavier,
2 F.3d 1281, 1286-87 (3d Cir. 1993) (requiring the
government to establish the defendant “knew or had cause to
believe” the principal was a convicted felon), with United
States v. Canon,
993 F.2d 1439, 1442 (9th Cir. 1993) (stating
that the government did not have to prove that the alleged aider
and abettor knew the principal was a felon).
In the absence of controlling precedent and in view of the
inconsistent holdings of other circuits, we cannot conclude that
any error in failing to grant Cox’s requested instruction was
plain. See Carthorne, 726 F.3d at 516;
Wynn, 684 F.3d at 480.
Accordingly, we hold that the district court did not plainly err
in instructing the jury on the charges of aiding and abetting.
14
C.
Cox also argues that his sentence is procedurally
unreasonable, because there was insufficient evidence to support
application of the enhancement under U.S.S.G. § 2K2.1(b)(1)(A)
for possession of three or more firearms during the May 14, May
21, and June 27 incidents. According to Cox, the evidence
failed to show that he possessed a gun at any point during the
May 21 incident when Brunson sold a gun to Jerome.
In response, the government contends that any error in
applying this enhancement was harmless, because the district
court nonetheless would have imposed the same sentence based on
the factors in 18 U.S.C. § 3553(a). We agree with the
government’s contention.
When reviewing a district court’s imposition of sentence,
we apply a deferential abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). As a matter of
procedure, a district court must begin its sentencing proceeding
with a correct calculation of the applicable guidelines range.
Id. If the court commits procedural error, such error is
harmless when (1) the district court would have imposed the same
sentence absent the procedural error, and (2) the sentence
imposed is reasonable. United States v. Savillon-Matute,
636
F.3d 119, 123-24 (4th Cir. 2011).
15
At the sentencing hearing, the district court provided two
independent bases for imposing a sentence of 100 months’
imprisonment, which sentence was higher than the advisory
guidelines sentencing range of 63 to 78 months. First, the
court adopted the government’s argument that a departure
sentence was warranted based on Cox’s uncharged criminal
conduct, the seriousness of Cox’s criminal history, and the
likelihood that Cox would commit other crimes. Second, the
court stated in the alternative that it would impose a variant
sentence of 100 months based on the factors listed in Section
3553(a). In accordance with these factors, the court considered
Cox’s criminal history and addressed his dangerousness, his
likelihood to commit future crimes, his unwillingness to take
responsibility for his actions, and his lack of respect for the
law. See 18 U.S.C. § 3553(a). The court held that based on
these considerations, as well as Cox’s particularly self-serving
allocution, a sentence of 100 months was appropriate but “not
greater than necessary” under Section 3553(a).
In view of this analysis under Section 3553(a), we conclude
that the district court demonstrated reasoned decision-making
and applied the statutory sentencing factors to the particular
circumstances of Cox’s case. Accordingly, even if we assume,
without deciding, that the district court erred in applying the
challenged sentencing enhancement, we hold that the district
16
court reasonably imposed the same sentence under Section
3553(a), and that, therefore, any error in determining Cox’s
guidelines range was harmless. See Savillon-Matute, 636 F.3d at
123-24.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
17
