11-509-cr
United States v. Cox

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 6th day of February, two thousand twelve.

PRESENT: RALPH K. WINTER,
         REENA RAGGI,
         DENNY CHIN,
                   Circuit Judges.
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UNITED STATES OF AMERICA,
                   Appellee,
               v.                                                                       No. 11-509-cr

CLINTON COX,
                                       Defendant-Appellant,

JASON COX, a.k.a. JC, WILLIE GRANT,
                        Defendants.
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FOR APPELLANT:                         Jonathan Edelstein, Esq., New York, New York.

FOR APPELLEE:                          Alina P. Reynolds, Robert M. Spector, Assistant United States
                                       Attorneys, for David B. Fein, United States Attorney for the
                                       District of Connecticut, Bridgeport, Connecticut.
       Appeal from a judgment of the United States District Court for the District of

Connecticut (Alvin W. Thompson, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on February 4, 2011, is AFFIRMED.

       Defendant Christopher Cox was convicted after trial on substantive and conspiratorial

counts of trafficking in 50 grams or more of crack cocaine, see 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), 846, as well as multiple counts of using a firearm in the course of his drug-

trafficking crimes, see 21 U.S.C. § 924(c)(1)(A). On January 26, 2011, the district court

vacated Cox’s firearm convictions under 28 U.S.C. § 2241 in light of Watson v. United

States, 552 U.S. 74 (2007), and the case was scheduled for resentencing. He now appeals

the four concurrent 360-month prison terms imposed on resentencing of the narcotics crimes.

Cox contends that his new sentence is procedurally and substantively unreasonable, an

argument we review “under a ‘deferential abuse-of-discretion standard.’” United States v.

Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United States, 552 U.S.

38, 41 (2007)). We assume the parties’ familiarity with the underlying facts and record of

prior proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Procedural Reasonableness

       a.     Guidelines Calculation

       Cox submits that the district court erred in calculating his Sentencing Guidelines range

by (1) assigning a base offense level of 34 based on his conspiracy to distribute 1.5 kilograms

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of crack, see U.S.S.G. § 2D1.1(c)(3) (2010), and (2) adding a four-level enhancement for his

leadership role in a conspiracy involving five or more persons, see id. § 3B1.1(a).

       Insofar as Cox contends that the district court misapplied the law of the case doctrine

in relying on findings made at his initial sentencing, we are not persuaded. While vacatur

of the firearms counts permitted the district court to resentence Cox on the drug counts

without regard to the mandate rule, see United States v. Triestman, 178 F.3d 624, 628–30 (2d

Cir. 1999), this did not preclude it from adhering to the court’s prior determinations as to

disputed facts in the absence of cogent and compelling reasons to revisit them, see United

States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002); see also United States v. Tenzer, 213

F.3d 34, 39 (2d Cir. 2000) (identifying such reasons to include “an intervening change of

controlling law, the availability of new evidence, or the need to correct a clear error or

prevent manifest injustice”). In concluding that Cox failed to present cogent reasons for

revisiting Judge Nevas’s detailed findings as to drug quantity and role, Judge Thompson

made plain that he had reviewed pertinent parts of the record and satisfied himself that the

challenged Guidelines findings were supported by the evidence.

       To the extent Cox complains that the findings depend on the testimony of unreliable

co-conspirators, we identify no clear error. As we explained on Cox’s first appeal, it was

within the district court’s discretion to credit the co-conspirator witnesses’ trial testimony.

See United States v. Cox, 59 F. App’x 437, 441 (2d Cir. 2003) (summary order). Further,

it was in the discretion of the district court—even though a different judge assumed

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responsibility for resentencing—to adhere to that determination in the absence of a

compelling reason to revisit it. See generally United States v. Garcia, 413 F.3d 201, 227–28

(2d Cir. 2005) (recognizing that decisions are rendered by district court, not individual

judge).

       b.     Parsimony Clause

       Cox submits that the district court erred in applying the appellate standard of review,

i.e., reasonableness, rather than the parsimony clause of 18 U.S.C. § 3553(a) in resentencing

him to a 360-month prison term. The record indicates otherwise. The district court expressly

acknowledged its parsimony clause obligation both when it quoted the statutory obligation

to ensure that any sentence imposed was “sufficient but not greater than necessary” to serve

the purposes specified in § 3553(a), Resentencing Tr. at 44, and when it stated that, although

it thought “the Guideline range would be a reasonable sentence,” it was obliged to answer

the further question “whether it was the lowest reasonable sentence,” id. at 45. These

statements, together with the district court’s articulation of the § 3553(a) factors and its

detailed explanation for imposing the challenged sentence despite an initial inclination to

vary from the Guidelines, satisfactorily demonstrate application of the parsimony clause.



       c.     Mandatory Minimum Calculation

       Cox posits that the district court erred in identifying his mandatory minimum sentence

as 20 years rather than the reduced mandatory minimum provided in the Fair Sentencing Act

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of 2010 (“FSA”). The government concedes error, consistent with the directive of the

Attorney General, see Eric H. Holder, Jr., Attorney General, Memorandum for All Federal

Prosecutors: Application of the Statutory Mandatory Minimum Sentencing Laws for Crack

Cocaine Offenses Amended by the Fair Sentencing Act of 2010, July 15, 2011, available at

http://www.fd.org/pdf_lib/Holder%20FSA%20memo%207.15.11.pdf (last visited Feb. 1,

2012), but submits that the error is harmless because “the record indicates clearly that the

district court would have imposed the same sentence in any event,” United States v. Jass, 569

F.3d 47, 68 (2d Cir. 2009) (internal quotation marks omitted). We agree.1

       The record shows that the district court imposed its sentence without regard to the

mandatory minimum penalty.         Instead, it determined that a term of 360 months’

incarceration—the low end of the post-FSA Guidelines range of 360 months to life and a

term 120 months longer than the presumed statutory minimum—was appropriate in light of

“the nature and circumstances of the offense and the history and characteristics of the

defendant.” Resentencing Tr. at 46. Such circumstances permit us to conclude that any error

in the calculation of the mandatory minimum sentence was harmless. See United States v.

Deandrade, 600 F.3d 115, 120 (2d Cir. 2010) (holding that purported calculation error in


       1
         To the extent our precedent has not applied the Fair Sentencing Act retroactively,
see United States v. Acoff, 634 F.3d 200, 202 (2d Cir. 2011); but see United States v. Dixon,
648 F.3d 195, 203 (3d Cir. 2011); United States v. Douglas, 644 F.3d 39, 46 (1st Cir. 2011),
we are not free to depart absent a contrary ruling by the Supreme Court or this court sitting
en banc. See United States v. Jass, 569 F.3d at 58. But we need not consider that question
further in light of our conclusion that any error would be harmless.

                                             5
mandatory minimum was harmless because challenged sentence was 60 months longer than

presumed minimum and was imposed according to Guidelines without reference to statutory

minimum).2

2.     Substantive Reasonableness

       Cox contends that his Guidelines sentence of 360 months is substantively

unreasonable. We are not persuaded.

       We will identify a sentence as substantively unreasonable “only in exceptional cases

where the trial court’s decision cannot be located within the range of permissible decisions.”

United States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted). Although we

do not presume that Guidelines sentences are reasonable, we nonetheless “recognize that in

the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the

broad range of sentences that would be reasonable in the particular circumstances.” United

States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).

       Cox maintains that his sentence, representing the bottom of his Guidelines range, is

substantively unreasonable for the same reason that we held a sentence under the child



       2
          The same harmlessness conclusion would obtain with respect to Cox’s pro se
complaint of procedural error in the identification of his past state narcotics conviction as a
“felony drug offense” for purposes of 21 U.S.C. §§ 841(b)(1)(A) and 851. In fact, however,
the district court committed no error. It appropriately applied the modified categorical test
and examined Cox’s plea colloquy, during which Cox admitted to distributing cocaine and
cocaine base and, thus, committing a “felony drug offense.” See United States v. Savage,
542 F.3d 959, 966 (2d Cir. 2008).

                                              6
pornography Guidelines unreasonable in United States v. Dorvee, 616 F.3d 174, 184–85 (2d

Cir. 2010), i.e., that the crack cocaine Guidelines are not based on the Sentencing

Commission’s independent empirical research but are, instead, legislatively mandated by

Congress. Cox misreads Dorvee. We did not hold, as Cox seems to suggest, that any time

Congress orders the Sentencing Commission to adopt or amend certain Guidelines, the

results are subject to a “de facto presumption of unreasonableness.” Def.’s Br. 23. Rather,

the substantive error identified in Dorvee turned on factors beyond the child pornography

Guidelines’ “highly unusual provenance,” 616 F.3d at 188, notably factual errors and

misstatements of law, see id. at 183–84, that are not present here. Moreover, although the

Court in Kimbrough v. United States, 552 U.S. 85, 110 (2007), held that a district court is

within its discretion to determine that application of the crack cocaine Guidelines yields a

sentence that is greater than necessary, it does not follow that it is substantively unreasonable

for a district court to impose a sentence pursuant to those Guidelines. Indeed, in this case,

the district court identified a number of factors that prompted it to conclude that a 360-month

sentence was warranted despite its original inclination to sentence outside the crack cocaine

Guidelines.

       Cox’s further contention that the identified factors cannot bear the weight assigned

them by the district court is without merit. See United States v. Cavera, 550 F.3d at 191; see

also Gall v. United States, 552 U.S. at 51 (stating that appellate court “must give due

deference” to district court’s weighing of § 3353(a) factors). The district court stated that a

                                               7
sentence of 360 months was necessary in light of (1) the serious and harmful nature of Cox’s

drug trafficking, reflected not only in the quantity of drugs dealt but in the expansion of the

conspiracy from Connecticut to South Carolina, and (2) the need for specific deterrence in

light of Cox’s demonstrated recidivism. The latter concern was reinforced by the district

court’s finding that Cox failed to accept responsibility for his conduct and had attempted to

perpetrate a fraud on the sentencing court. Although Cox takes exception to these findings

and the weight assigned them, we identify no abuse of discretion so as to take the 360-month

sentence out of the broad range of sentences that are substantively reasonable for the crimes

of conviction. See United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008).

       We have considered Cox’s remaining arguments and find them to be without merit.

For the foregoing reasons, the judgment of conviction is AFFIRMED.


                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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