Filed: Jan. 04, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4140 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID LEE COX, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:09-cr-00037-BO-1; 4:09-cr-00038-BO-1) Submitted: November 30, 2011 Decided: January 4, 2012 Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Affirmed in part, vacated in part, and remanded by un
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4140 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID LEE COX, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:09-cr-00037-BO-1; 4:09-cr-00038-BO-1) Submitted: November 30, 2011 Decided: January 4, 2012 Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Affirmed in part, vacated in part, and remanded by unp..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4140
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LEE COX,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00037-BO-1; 4:09-cr-00038-BO-1)
Submitted: November 30, 2011 Decided: January 4, 2012
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Slade C. Trabucco, THE TRABUCCO LAW FIRM, P.A., Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lee Cox pled guilty, without a written plea
agreement, to escaping from federal custody, in violation of 18
U.S.C. § 751(a) (2006). Cox later was convicted of conspiracy
to distribute less than five hundred grams of cocaine, in
violation of 21 U.S.C. § 846 (2006), and three counts of
distribution of a quantity of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (2006). The district court sentenced Cox to a total
of 240 months’ imprisonment and imposed a $20,000 fine.
Cox’s attorney submitted a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), questioning the
district court’s drug-quantity finding. In his pro se
supplemental brief, Cox questioned the reasonableness of his
sentence, specifically challenging the district court’s
explanation for his 240-month sentence and the court’s factual
findings in support of the $20,000 fine it imposed. ∗ Upon review
of the record, we directed supplemental briefing from the
parties on whether the district court abused its discretion by
failing to adequately explain the reasons for the sentence or
fine it imposed. We now affirm Cox’s convictions and active
∗
In his pro se supplemental brief, Cox also questioned the
district court’s adherence to the requirements of Fed. R. Crim.
P. 32(i)(1)(A). Although the district court failed to comply
with Rule 32(i)(1)(A), we conclude that this error did not
affect Cox’s substantial rights.
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prison sentence, but we vacate the fine imposed and remand this
case to the district court with instructions to make the
requisite factual findings under 18 U.S.C. § 3572(a) (2006).
“We review . . . a drug quantity finding for clear
error.” United States v. Kellam, 568 F.3d 125, 147 (4th Cir.
2009). Under the clear error standard of review, we will
reverse “only if . . . left with the definite and firm
conviction that a mistake has been committed.” United States v.
Jeffers,
570 F.3d 557, 570 (4th Cir. 2009) (internal quotation
marks omitted). Here, the district court did not clearly err in
determining the drug quantity attributable to Cox. It is well-
established that, at sentencing, the Government must prove drug
quantity by a preponderance of the evidence. United States v.
Milam,
443 F.3d 382, 386 (4th Cir. 2006). Thus, we reject Cox’s
legal argument that allowing the Government to prove a greater
drug quantity at sentencing than that found by the jury during
the guilt phase of the trial violated his Sixth Amendment
rights.
Id. at 386-87.
Next, Cox argues his prison term is unreasonable
because the district court gave no explanation for its decision
to impose a 240-month sentence, which was a substantial downward
variance from his Guidelines range of 324 to 405 months. Because
Cox argued for a lower sentence than the one imposed, he
preserved this issue, and our review is for abuse of discretion.
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United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). A
district court commits procedural error in sentencing when it
“fail[s] to adequately explain the chosen sentence-including an
explanation for any deviation from the Guidelines range.” Gall
v. United States,
552 U.S. 38, 51 (2007). Although the district
court need not explicitly refer to 18 U.S.C. § 3553(a) (2006) or
discuss every factor on the record, United States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006), it “must make an
individualized assessment based on the facts presented” and
“apply the relevant § 3553(a) factors to the specific
circumstances of the case before it.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and
emphasis omitted).
In this case, the district court erred by providing no
explanation for the length of the active prison term it imposed
upon Cox. We conclude, however, that the Government met its
burden to show that this error was harmless. Because Cox
received a substantial downward variance, we conclude the
district court’s inadequate explanation “did not have a
substantial and injurious effect or influence on the result” of
the sentencing proceeding. Lynn, 592 F.3d at 585 (internal
quotation marks omitted). Furthermore, Cox’s arguments in
support of a 120-month sentence were without legal merit,
allowing us to conclude with “fair assurance that the district
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court’s explicit consideration of those arguments would not have
affected the sentence imposed.” Id. (internal quotation marks
omitted).
Finally, Cox argues the district court erred when it
imposed, with no explanation, a $20,000 fine as part of his
sentence. Because Cox failed to object in the district court to
the imposition or amount of the $20,000 fine, this court reviews
the issue for plain error. Fed. R. Crim. P. 52(b); United
States v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). To
establish plain error, Cox must show that (1) an error occurred;
(2) the error was plain; and (3) the error affected his
substantial rights. United States v. Olano,
507 U.S. 725, 732
(1993). Even if these conditions are satisfied, this court may
exercise its discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.”
Id. (internal quotation
marks omitted).
A district court must consider several factors when
deciding whether to impose a fine. See 18 U.S.C. § 3572(a). We
have long held “that the district court must make factual
findings with respect to applicable [§] 3572 factors, so that
there can be a basis from which to review whether the district
court abused its discretion in assessing a fine.” United
5
States v. Walker, 39 F.3d 489, 492 (4th Cir. 1994). “In
determining the imposition and amount of a fine under § 3572(a),
the district court must consider, among other things, the
income, financial resources, and earning capacity of the
defendant, as well as the burden that the fine will impose upon
the defendant and his dependents.”
Castner, 50 F.3d at 1277
(internal quotation marks omitted).
“A district court may satisfy these requirements if it
adopts a defendant’s presentence investigation report (PSR) that
contains adequate factual findings to allow effective appellate
review of the fine . . . .” Id. Otherwise, the district court
must set forth specifically its findings of fact on the
§ 3572(a) factors.
Walker, 39 F.3d at 492. The “[s]pecific
findings . . . are necessary to assure effective appellate
review of . . . fines imposed.”
Castner, 50 F.3d at 1277
(internal quotation marks omitted).
While the district court adopted Cox’s PSR, the
factual findings in the report did not support the imposition of
the $20,000 fine. To the contrary, the probation officer found
Cox was without the ability to pay a fine within the Guidelines
range and could only pay a reduced fine from his prison earnings
if he did not pay child support to his two minor children. The
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district court did not address the probation officer’s findings
regarding Cox’s ability to pay or the § 3572(a) factors. Thus,
we conclude the district court committed error by failing to
follow § 3572(a) before imposing the fine and that the court’s
error was plain. We further conclude this error affected Cox’s
substantial rights as it led to the imposition of a fine greater
than he can pay and prevents him from meeting his obligations to
his dependents. We accordingly vacate the fine and remand this
case for further proceedings consistent with this opinion.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal,
other than that related to the fine. We therefore affirm the
convictions, vacate the fine, remand for reconsideration of the
fine, and affirm the judgment in all other respects. We deny
Cox’s pending motions for the appointment of new counsel on
appeal, but we suggest the district court consider appointing
new counsel for Cox upon remand. This court requires that
current counsel inform Cox in writing of the right to petition
the Supreme Court of the United States for further review. If
Cox requests that such petition be filed, but counsel believes
that the petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Cox.
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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 IN PART,
VACATED IN PART,
AND REMANDED
8
