IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40509

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MICHAEL WARREN COX, JR.,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:13-CR-266-2

Before JONES, BARKSDALE, and COSTA, Circuit Judges.

PER CURIAM:*

Michael Warren Cox, Jr., was convicted by a jury of conspiracy to 

possess, with intent to manufacture and distribute, methamphetamine, in 

violation of 21 U.S.C. § 846, and sentenced, inter alia, to life imprisonment. He 

raises numerous issues on appeal. 

 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 13, 2017

Lyle W. Cayce

Clerk

 Case: 16-40509 Document: 00513835170 Page: 1 Date Filed: 01/13/2017
No. 16-40509

2

Cox first claims the evidence was insufficient to support his conviction. 

Because he preserved this issue in district court, review is de novo. E.g., United 

States v. Alaniz, 726 F.3d 586, 600 (5th Cir. 2013). 

When viewed in the requisite light most favorable to the Government, 

with all reasonable inferences made in support of the jury’s verdict, the 

evidence was sufficient to support Cox’s conspiracy conviction. See United 

States v. Romans, 823 F.3d 299, 311 (5th Cir.), cert. denied, 137 S. Ct. 195 

(2016). Contrary to his contention, the evidence was sufficient to establish 

more than a single agreement to buy or sell drugs. See United States v. 

Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (en banc). The evidence established

he purchased methamphetamine from two individuals and distributed it with 

McKenzie; Cox sold methamphetamine to numerous people; and buyers

participated in the conspiracy by helping to store, repackage, and distribute 

the methamphetamine. The jury could reasonably infer the existence of an 

agreement between Cox and McKenzie based on the circumstantial evidence. 

See United States v. Zamora, 661 F.3d 200, 209 (5th Cir. 2011). And, the 

evidence shows a reasonable trier of fact could conclude, beyond a reasonable 

doubt, that Cox agreed with McKenzie to violate the narcotics law by 

distributing methamphetamine; Cox had knowledge of the agreement; and he 

voluntarily participated in it. See Romans, 823 F.3d at 311.

Next, Cox contends the Government made various improper remarks

during closing argument, constituting prosecutorial misconduct. Cox did not 

object to the remarks in district court, however; therefore, review is limited to 

plain error. E.g., United States v Rashad, 687 F.3d 637, 643 (5th Cir. 2012). 

The remarks concerning why McKenzie did not testify at trial were not 

improper because they were made in response to defense counsel’s closing 

argument, and they were based on the evidence presented at trial. The 

 Case: 16-40509 Document: 00513835170 Page: 2 Date Filed: 01/13/2017
No. 16-40509

3

remarks pointing out factual errors made by defense counsel in closing 

argument were not improper because the Government did not personally 

attack or denigrate defense counsel. And, the remark that Cox had equal 

power to subpoena witnesses was not improper: it did not implicate Cox’s right 

not to testify, and it did not suggest or imply the Government’s counsel 

personally made the decision to charge Cox with conspiracy. See United States 

v. Wall, 389 F.3d 457, 474 (5th Cir. 2004); United States v. Palmer, 37 F.3d 

1080, 1086 (5th Cir. 1994). 

Moreover, even if any of the Government’s remarks were improper, Cox 

has not shown they had a strong prejudicial effect. Further, the court gave a 

general instruction that the arguments made by counsel were not evidence. 

Because jurors are presumed to follow their instructions, the court’s 

instructions were likely sufficient to cure any prejudicial effect. See United 

States v. Anderson, 755 F.3d 782, 798 (5th Cir. 2014). In view of the strong 

evidence against him, Cox has not shown that any of the remarks “cast serious 

doubt on the correctness of the jury’s verdict”. See United States v. Reagan, 

725 F.3d 471, 492 (5th Cir. 2013). Therefore, he has not shown any of the 

claimed improper remarks constituted plain (clear or obvious) error or affected 

his substantial rights. See Rashad, 687 F.3d at 643.

For his third claim, Cox maintains the oral and written judgments 

conflict because, at sentencing, the court referred to a list of special conditions 

of supervised release in the presentence investigation report (PSR), rather 

than pronouncing each special condition in its oral judgment. The record 

shows the PSR, which was provided to the parties, included the 

recommendation of mandatory and special conditions of supervised release. 

Because Cox was aware of the recommended special conditions and bypassed 

his opportunity to object at sentencing, the plain error standard of review again 

 Case: 16-40509 Document: 00513835170 Page: 3 Date Filed: 01/13/2017
No. 16-40509

4

applies. See United States v. Rouland, 726 F.3d 728, 730–34 (5th Cir. 2013). 

There is no conflict between the oral and written judgments because the court 

referred to the special conditions recommended in the PSR, and the written 

judgment imposed the same recommendations. Cox was aware of the 

recommended special conditions and had opportunity to object. He has not 

shown reversible plain error. See id. at 730–34.

Finally, Cox contends the special conditions of supervised release 

requiring him to give the probation officer access to his financial information 

and requiring him to obtain a general education development (GED) certificate

are substantively unreasonable. (The Government contends this issue is not 

ripe for review because Cox was sentenced to life imprisonment and may never 

be released from prison and placed on supervised release. As shown infra, we 

need not reach that issue.) 

Because Cox did not object to these special conditions in district court, 

review is limited again to plain error. See United States v. Weatherton, 567 

F.3d 149, 152 (5th Cir. 2009). Although the court did not give specific reasons 

for imposing the special conditions of supervised release at issue, the record 

indicates there is a reasonable relationship between them and the sentencing 

goals of 18 U.S.C. § 3553(a). See United States v. Caravayo, 809 F.3d 269, 275 

(5th Cir. 2015). The special condition requiring Cox to provide his financial 

information to the probation officer is reasonably related to the requirement 

that he pay for drug treatment and testing, and mental health treatment. The 

special condition requiring Cox to obtain a GED is reasonably related to his 

need for educational and vocation training. See 18 U.S.C. § 3553(a)(2)(D). See

Weatherton, 567 F.3d at 152.

AFFIRMED. 

 Case: 16-40509 Document: 00513835170 Page: 4 Date Filed: 01/13/2017