United States of America v. Wendell Raynald Cox, Jr.

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

-- 1 of 4 --

2
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 documents approved under Shephard v. United
States, 544 U.S. 13, 17 (2005), in determining 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. We affirm.
The Presentence Report stated that Cox qualified for
increased penalties under the ACCA. The PSR identified the
three qualifying predicate 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 raise the
constitutional challenge to the ACCA designation. We therefore
review these issues for plain error. United States v. Price,
777 F.3d 700, 711 (4th Cir.), cert. denied, 135 S. Ct. 2911
(2015).

-- 2 of 4 --

3
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] substantial rights.” Id. (internal quotation
marks omitted). 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, the sentencing transcript and the parties’
arguments. We do not ascertain plain error in the district
court’s designation of Cox as an armed career criminal. In
addition, Cox’s argument that imposing the ACCA 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

-- 3 of 4 --

4
proved beyond a reasonable doubt.”) (emphasis added);
Almendarez-Torres v. United States, 523 U.S. 224 (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. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED

-- 4 of 4 --