United States v. Lewellyn Cox, IV

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 26, 2018
• Docket: 14-50325
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 26 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50325

Plaintiff-Appellee, D.C. No. 8:09-cr-00248-DOC-5 v.

LEWELLYN CHARLES COX IV, AKA MEMORANDUM* Sho, AKA Showtime, AKA Showtyme,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 15-50453 16-50415 Plaintiff-Appellee, D.C. No. v. 8:09-cr-00248-DOC-5

LEWELLYN CHARLES COX IV,

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted December 7, 2018 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: WARDLAW and OWENS, Circuit Judges, and DORSEY,** District Judge.

In these consolidated appeals, Lewellyn Charles Cox IV appeals from his

guilty plea conviction and sentence for conspiracy to commit bank fraud (18

U.S.C. § 1349), bank fraud (18 U.S.C. § 1344), aggravated identity theft (18

U.S.C. § 1028A(a)(1)), and felon in possession of firearm and ammunition (18

U.S.C. § 922(g)(1)). As the parties are familiar with the facts, we do not recount

them here. We affirm.

1. The district court did not violate Cox’s Sixth Amendment right to

self-representation during sentencing proceedings by delaying holding a Faretta

hearing and granting his request until after two witnesses (Agent Wesley Schwark

and Jessica Bacque) had finished testifying. In light of the full context, the district

court did not clearly err in finding Cox’s initial self-representation request

equivocal. See Jackson v. Ylst, 921 F.2d 882, 888-89 (9th Cir. 1990) (stating that a

court may deny an equivocal request for self-representation, such as an “impulsive

response” or an “emotional reaction”).

Moreover, any error in delaying Cox’s self-representation until after the two

witnesses had finished testifying was harmless. See United States v. Maness, 566

F.3d 894, 897 (9th Cir. 2009) (per curiam) (“[A]n improper denial of a defendant’s

** The Honorable Jennifer A. Dorsey, United States District Judge for the District of Nevada, sitting by designation.

2 motion to proceed pro se at sentencing, rather than at trial, is not a structural error

and is thus subject to harmless error analysis.”). Among other things, Cox fails to

identify any helpful testimony he could have personally elicited upon re-cross-

examination of Agent Schwark, only speculates that Bacque would have provided

significant additional testimony if Cox had personally questioned her, and only

speculates that Bacque would not have left with the only available copy of the

interview report if the district court had not delayed granting him self-

representation.

2. The district court did not abuse its discretion by denying Cox’s

request for a continuance at sentencing to either allow a defense investigator to

testify or introduce her report because this evidence was insignificant. See United

States v. Rivera-Guerrero, 426 F.3d 1130, 1142 (9th Cir. 2005) (“Where the denial

of a continuance prevents the introduction of specific evidence, the prejudice

inquiry focuses on the significance of that evidence.” (citation omitted)).

3. The district court also did not abuse its discretion by denying Cox’s

request to withdraw his guilty plea. “A defendant may withdraw a guilty plea after

a district court accepts the plea but before sentencing if ‘the defendant can show a

fair and just reason for requesting the withdrawal.’” United States v. Ortega-

Ascanio, 376 F.3d 879, 883 (9th Cir. 2004) (quoting Fed. R. Crim. P. 11(d)(2)(B)).

Although the district court did not explicitly invoke the “fair and just

3 reason” standard, the district court applied the correct legal standard. See United

States v. Emmett, 749 F.3d 817, 820 (9th Cir. 2014) (“Where a district court issues

a discretionary decision without setting forth the legal standard it applied, we will

not presume that its decision rested on a misapprehension of the law.”).

Further, the district court did not abuse its discretion by determining that

Cox failed to show a “fair and just reason” for withdrawing his guilty plea.

See United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990) (“[I]t is well

established that an erroneous prediction by a defense attorney concerning

sentencing does not entitle a defendant to challenge his guilty plea.”).

4. The district court did not err in calculating the loss enhancement

under U.S.S.G. § 2B1.1(b)(1) (2013). The record belies Cox’s arguments that the

district court failed to resolve factual disputes regarding the amount of loss and

determine the scope of his agreement to participate in the conspiracy. See United

States v. Stargell, 738 F.3d 1018, 1025 (9th Cir. 2013) (holding that “[t]he district

court adequately established its resolution of the loss-amount dispute in favor of

the government by holding that the government had established the loss-amount by

clear and convincing evidence”). Cox’s additional arguments in his pro se

submissions are also unpersuasive.

5. The district court erred by dismissing for lack of jurisdiction Cox’s

pro se post-judgment motions filed while his appeal was pending because Cox

4 properly sought an indicative ruling. Cox cited Federal Rule of Civil Procedure

62.1, which mirrors Federal Rule of Criminal Procedure 37, as well as Federal

Rule of Appellate Procedure 12.1. As a result, the district court had jurisdiction to

defer consideration of Cox’s post-judgment motions, deny them on the merits, or

issue an indicative ruling. See Fed. R. Crim. P. 37(a).

However, “we may affirm on any ground supported by the record[.]” United

States v. Lustig, 830 F.3d 1075, 1084 n.10 (9th Cir. 2016). We conclude that

Cox’s claims of “new evidence” and “fraud on the court” do not undermine his

guilty plea conviction or sentence. Therefore, we affirm the denial of Cox’s post-

judgment motions on their merits.

6. Finally, the district court did not abuse its discretion by denying Cox’s

motion to disqualify the district judge. Contrary to Cox’s contention, the district

judge’s comments do not establish a “deep-seated . . . antagonism” towards Cox.

United States v. McTiernan, 695 F.3d 882, 892 (9th Cir. 2012) (citation omitted).

AFFIRMED.