US v. Wendell Cox, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00012-WDQ-1. Copies to all parties and the district court. [999785722]. [15-4448]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4448

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WENDELL RAYNALD COX, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:14-cr-00012-WDQ-1)

Submitted:

March 29, 2016

Decided:

March 31, 2016

Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Julie L.B. Johnson, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant.
Rod J. Rosenstein, United States Attorney, Matthew
K. Hoff, Special Assistant United States Attorney, Baltimore,
Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Wendell

Raynald

Cox,

Jr.,

appeals

from

the

120-month

sentence imposed after he pleaded guilty to being a felon in
possession

of

a

firearm.

On

appeal,

Cox

contends

that

his

sentence is procedurally unreasonable because the district court
did

not

review

States,

544

documents

U.S.

13,

approved

17

under

(2005),

in

Shephard

determining

v.

United

that

Cox

qualified as an armed career criminal under the Armed Career
Criminal

Act,

18

U.S.C.

§ 924(e)

(2012)

(“ACCA”).

He

also

argues that the Fifth and Sixth Amendments prohibit a judge from
increasing

a

statutory

maximum

sentence

when

the

fact

of

convictions necessary to increase the sentence are not in the
indictment or submitted to a jury.
The

Presentence

increased
three

penalties

qualifying

Report
under

the

predicate

We affirm.

stated

that

Cox

qualified

for

ACCA.

The

PSR

identified

the

convictions

as

Maryland

state

convictions for distribution of heroin, conspiracy to distribute
heroin, and possession with intent to distribute cocaine.

Cox

did not file an objection to this designation and he did not
object

to

it

at

sentencing.

He

also

did

not

constitutional challenge to the ACCA designation.
review these issues for plain error.

raise

the

We therefore

United States v. Price,

777 F.3d 700, 711 (4th Cir.), cert. denied, 135 S. Ct. 2911
(2015).
2

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To satisfy plain-error review, Cox must show “that (1) an
error was committed, (2) the error was plain, and (3) the error
affected

[his]

marks omitted).

substantial

rights.”

Id.

(internal

quotation

An error is plain if, “at the time of appellate

consideration, . . . the settled law of the Supreme Court or
this circuit establishes that an error has occurred.”

United

States v. Ramirez-Castillo, 748 F.3d 205, 215 (4th Cir. 2014)
(internal quotation marks omitted).

However, even if Cox makes

the requisite showing, correction of the error lies within this
court’s

discretion,

which

it

exercises

only

if

“the

error

seriously affected the fairness, integrity or public reputation
of judicial proceedings.”

Price, 777 F.3d at 711 (brackets and

internal quotation marks omitted).
We have thoroughly reviewed the record, the PSR materials
and

response,

arguments.

the

sentencing

transcript

and

the

parties’

We do not ascertain plain error in the district

court’s designation of Cox as an armed career criminal.
addition,

Cox’s

argument

that

imposing

the

ACCA

In

designation

without facts of conviction being decided beyond a reasonable
doubt is in violation of the Fifth and Sixth Amendments, is also
patently meritless.

See Descamps v. United States, 133 S. Ct.

2276, 2288 (2013) (“Other than the fact of a prior conviction,
any

fact

that

increases

the

penalty

for

a

crime

beyond

the

prescribed statutory maximum must be submitted to a jury, and
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proved

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beyond

a

Almendarez-Torres

v.

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reasonable
United

doubt.”)

States,

523

(emphasis
U.S.

224

added);
(1998)

(a

sentencing court may rely on the fact of a prior conviction that
has not been submitted to a jury and proven beyond a reasonable
doubt to enhance a defendant’s sentence).
Accordingly, we affirm Cox’s sentence.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.

AFFIRMED

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