UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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