United States v. Christopher Cox

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4620

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER LEWIS COX,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00397-WO-2)

Submitted: January 30, 2012 Decided: February 14, 2012

Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

George E. Crump, III, Rockingham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Stephen T. Inman, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

A jury convicted Christopher Lewis Cox on six counts

of violations of the Hobbs Act (interference with commerce by

robbery), 18 U.S.C. §§ 2, 1951(a) (2006) (Counts One, Five,

Eleven, Thirteen, Fifteen, and Seventeen), and five counts of

carrying and using by brandishing a firearm during a crime of

violence under 18 U.S.C. §§ 2, 924(c)(1)(A)(ii),

924(c)(1)(A)(iii), (c)(1)(B)(i) (2006) (Counts Two, Six, Twelve,

Fourteen and Sixteen). The district court sentenced Cox to one

month imprisonment on the five Hobbs Act convictions,

respectively; mandatory consecutive eighty-four months’

imprisonment on Count Two; and mandatory consecutive 300 months’

imprisonment on each of the remaining four § 924(c) convictions,

resulting in a cumulative sentence of 1285 months’ imprisonment.

On appeal, Cox challenges the district court’s denial of his

motion for a judgment of acquittal pursuant to Fed. R. Crim. P.

29 as to Count Two, Twelve, Fourteen and Sixteen on the ground

that the evidence was insufficient to support the convictions.

He further argues the district court’s imposition of consecutive

sentences on the § 924(c) convictions in Counts Six, Twelve,

Fourteen, and Sixteen violated the Eighth Amendment’s protection

against cruel and unusual punishment. We affirm.

Cox first challenges the district court’s denial of

his Rule 29 motion challenging the sufficiency of the evidence

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as to his § 924(c) convictions on Counts Two, Twelve, Fourteen,

and Sixteen. He argues that the evidence at trial was

insufficient for the jury to find him guilty as an aider or

abettor of the use of a firearm during a crime of violence.

Specifically, he maintains there was insufficient evidence that

he knew or had knowledge to a reasonable degree of certainty

that his co-defendant, Steve Hopkins, would use a firearm during

the subject robberies.

We review a district court’s denial of a motion for a

judgment of acquittal de novo. United States v. Smith, 451 F.3d

209, 216 (4th Cir. 2006). A defendant challenging the

sufficiency of the evidence faces a heavy burden. United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). The

verdict of a jury must be sustained “if, viewing the evidence in

the light most favorable to the prosecution, the verdict is

supported by ‘substantial evidence.’” Smith, 451 F.3d at 216.

Substantial evidence is “evidence that a reasonable finder of

fact could accept as adequate and sufficient to support a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

Id. (internal quotation marks omitted). An appellate court must

be mindful that “the jury, not the reviewing court, weighs the

credibility of the evidence and resolves any conflicts in the

evidence presented.” Beidler, 110 F.3d at 1067 (internal

quotation marks and brackets omitted). “Reversal for

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insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.” Id. (internal quotation marks

omitted).

To prove a violation of § 924(c)(1), the Government

must demonstrate that: “(1) the defendant used or carried a

firearm, and (2) the defendant did so during and in relation to

a . . . crime of violence.” United States v. Mitchell, 104 F.3d

649, 652 (4th Cir. 1997). “Whoever commits an offense against

the United States or aids, abets, counsels, commands, induces or

procures its commission, is punishable as a principal.” 18

U.S.C. § 2. To be convicted of aiding and abetting under

§ 924(c), only “participation at some stage accompanied by

knowledge of the result and intent to bring about that result”

are required. United States v. Wilson, 135 F.3d 291, 305 (4th

Cir. 1998) (internal quotation marks omitted).

In light of this standard, we have reviewed the record

in this case and conclude there was ample evidence to support

the jury’s guilty verdict on the § 924(c) offenses as charged in

Counts Two, Twelve, Fourteen, and Sixteen. We therefore find no

error in the district court’s denial of Cox’s Rule 29 motion as

to these counts.

Cox also argues on appeal that the district court’s

imposition of mandatory consecutive sentences of 300 months’

imprisonment as to Counts Six, Twelve, Fourteen and Sixteen

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(violations of 18 U.S.C. § 924(c)) violated the Eighth

Amendment’s protection against cruel and unusual punishment.

Ostensibly, Cox claims his cumulative sentence is

disproportionate to his crimes.

The Eighth Amendment “contains a ‘narrow

proportionality principle’ that ‘applies to noncapital

sentences.’” Ewing v. California, 538 U.S. 11, 20 (2003)

(quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991)).

However, we have held that “proportionality review is not

available for any sentence less than life imprisonment without

the possibility of parole.” United States v. Ming Hong, 242

F.3d 528, 532 & n.3 (4th Cir. 2001). Cox was not in fact

sentenced to life imprisonment, so the proportionality of his

sentence is not reviewable on appeal. See United States v.

Khan, 461 F.3d 477, 495 (4th Cir. 2006) (reconfirming that

consecutive sentences mandated by § 924(c), even where unusually

lengthy and exceeding a defendant’s reasonable life expectancy,

do not violate the Eighth Amendment).

Accordingly, we affirm Cox’s convictions and 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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