Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-2002

USA v. Knox
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3488




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Recommended Citation
"USA v. Knox" (2002). 2002 Decisions. Paper 435.
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                                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                            No. 01-3488


                      UNITED STATES OF AMERICA

                                 v.

                            GREGORY KNOX
                           a/k/a "Rashad"
                       a/k/a Gregory Terrell
                       a/k/a Gregory Anderson

                           Gregory Knox,
                                           Appellant


         On Appeal from the United States District Court
                  for the District of New Jersey
                  (D.C. Crim. No. 99-cr-00060-3)
            District Judge: Hon. Stephen M. Orlofsky



            Submitted Under Third Circuit LAR 34.1(a)
                           July 22, 2002

      Before:   SLOVITER, NYGAARD, and BARRY, Circuit Judges

                       (Filed: July 25, 2002)



                       OPINION OF THE COURTSLOVITER, Circuit Judge.
     Gregory Knox appeals from the judgment of sentence. After indictment in the
United States District Court for the District of New Jersey, Knox pleaded guilty to one
count of conspiracy to distribute and to possess with intent to distribute more than five
kilograms of cocaine, contrary to 21 U.S.C. 841(a)(1), in violation of 21 U.S.C. 846.
The District Court sentenced Knox to 240 months imprisonment. In this appeal, Knox
challenges the District Court’s calculation of drug amount, its finding that Knox played a
managerial role pursuant to U.S.S.G. 3B1.1(b), and its finding that Knox’s prior state
burglary conviction qualifies as a "crime of violence" under U.S.S.G. 4B1.2(a)(2). We
will affirm.
     The District Court had jurisdiction under 18 U.S.C. 3231. This court has
jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742. As part of his plea
agreement, Knox and the government stipulated that the 1998 edition of the Sentencing
Guidelines applies.
     We review "a district court’s finding of fact supporting an upward adjustment to a
sentencing level for clear error." United States v. Bethancourt, 

, 1080 (3d
Cir. 1995). A district court does not commit clear error unless its factual findings are
"completely devoid of a credible evidentiary basis or bear[] no rational relationship to the
supporting data." United States v. Haut, 

, 218 (3d Cir. 1997) (quoting
American Home Prods. Corp. v. Barr Labs., Inc., 

, 370-71 (3d Cir. 1986)).
                                I.
     Knox argues first that the District Court clearly erred in attributing 15 to 50
kilograms of cocaine to him. The PSI’s determination that Knox was responsible for 15
to 50 kilograms of cocaine was based on information supplied by a confidential
informant, Edward Gardner, and the sworn statement of Special Agent Scott Forbes.
Knox argues that these were unreliable hearsay. The Commentary to the Sentencing
Guidelines makes clear that the District Court is not limited to admissible evidence in
making determinations of drug quantity as long as the information has sufficient indicia
of reliability. U.S.S.G. 6A1.3(a). We cannot say the District Court clearly erred in
accepting the 15 to 50 kilogram figure.
     In any event, although Knox disputes much of the evidence the District Court
relied on to calculate drug quantity, Knox concedes that his admissions to a probation
officer that he sold 35 to 40 grams of cocaine per week from 1996 until his arrest in
February of 1999 constitute reliable evidence. Reply Br. of Appellant at 7-8. He
acknowledges that extrapolation over even the limited duration of the conspiracy to
which he admits "yields a total in excess of six kilograms." 

Knox urges that
under United States v. Paulino, 

(3d Cir. 1993), these six kilograms should
be "decreased to account for off-days, periods when cocaine was difficult to obtain, or
the time period that [he] was hospitalized for an ankle injury." Reply Br. of Appellant at
8. The cases are not apposite.
     In Paulino, the government had proposed a drug quantity of 255 kilograms by
extrapolating for a period of over two years from testimony regarding sales made on a
single evening. The district court reduced the government’s estimate to a range of 127 to
140 kilograms "to take into account the days in which sales were not that high or days in
which no sales were made." 

We rejected the defendants’ arguments that the
range should have been even lower and held that the district court’s findings were not
clearly erroneous.
     Of course, our determination that the district court’s drug quantity calculation in
Paulino was not clearly erroneous does not mandate the halving of drug quantity
estimates in every case. Notably, in this case the six kilograms were extrapolated from a
confession by Knox himself estimating his average weekly sales during a period
spanning over three years. In contrast, the estimate in Paulino was based on the
testimony of a sole witness regarding sales made on a single evening. In calculating his
weekly sales, Knox himself presumably accounted for "off days," as his admission was,
"I estimate that I sold on the average about 35 to 40 grams of cocaine per week." PSI
69 (emphasis added).
     Even were we to determine, based on the six kilograms which Knox concedes are
grounded in reliable evidence, that he was responsible only for 5 to 15 kilograms of
cocaine, his total offense level would be 36, resulting in a guideline range of 324 to 405
months. U.S.S.G. Ch. 5, Pt. A. His sentence could not lie below the statutory maximum
of 240 months. See 21 U.S.C. 841(b)(1)(C); U.S.S.G. 5G1.1(a) ("Where the
statutorily authorized maximum sentence is less than the minimum of the applicable
guideline range, the statutorily authorized maximum sentence shall be the guideline
sentence."). Accordingly, any error would have been harmless. See 28 U.S.C. 2111
(2002); Fed. R. Crim. Proc. 52(a).
                              II.
     We consider next Knox’s argument that the District Court erred in finding that he
played a managerial or supervisory role in criminal activity involving five or more
participants, under U.S.S.G. 3B1.1(b). Based on that finding, the District Court
granted a three-level upward adjustment.
     Under 3B1.1(b), a defendant’s offense level is increased by three levels "[i]f the
defendant was a manager or supervisor . . . and the criminal activity involved five or
more participants or was otherwise extensive." U.S.S.G. 3B1.1(b). Knox does not
argue that he did not manage or supervise others. Instead, he contends that the criminal
activity in which he engaged did not involve five or more participants.
     Knox argues that "[s]ince [his] criminal responsibility under the guidelines was
limited to the acts that he personally committed and there were no findings made at
sentencing that the conduct of others was relevant to the offense of conviction, there was
no legal basis for the district court to conclude that [his] criminal activity involved five o
more participants." Reply Br. of Appellant at 9-10. By this argument, Knox appears to
suggest that because the District Court did not find him accountable for the drug amounts
attributable to his codefendants in calculating drug quantity, it erred in holding him
responsible for his codefendants’ participation in the conspiracy in assessing whether the
criminal activity involved five or more participants. Knox supports his contention that no
finding was made at sentencing that the conduct of others was relevant based on the fact
that drug quantity in the PSI was calculated based on the amounts individually
distributed by Knox, "not overlapping amounts with other defendants." PSI at 31.
     We first note that although the PSI may have been calculated based on Knox’s
individual drug amount, the District Court stated that the drug quantity of 15 to 50
kilograms attributed to Knox was "a conservative estimate of the drug quantity in this
case." App. at 23. Section 1B1.3(a)(1)(B) requires a sentencing court to assess a
defendant’s relevant conduct based on "all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity." It is not at all clear th
the District Court did not evaluate Knox’s relevant conduct based on the reasonably
foreseeable acts and omissions of his coconspirators. Of course, even if the probation
officer or District Court were mistakenly lenient in calculating drug quantity based solely
on Knox’s individual conduct, that error would not insulate Knox from a proper upward
adjustment under 3B1.1(b).
      Credible evidence supports the District Court’s determination that Knox
participated in a criminal activity involving five or more participants. In a June 15, 2000
letter to the probation officer who prepared the PSI, Knox conceded that he purchased
cocaine from Belarmino Rodriguez (a/k/a Belanchi) in New York, and that he employed
Patrice Dowe to purchase and transport cocaine from New York. PSI 70. In an
affidavit, Special Agent Forbes stated that Knox also directed the courier activities of
Edward Garner (who subsequently became a confidential informant) and Rajah Miller.
App. at 64-65. Forbes observed that "a number of sources of information confirm that
[Michael] Shepherd acted at Knox’s behest in storing and obtaining weapons," and in
carrying out cocaine deliveries. App. at 65; see also PSI 28, 71. Forbes also reported
that "wiretapped conversations suggest . . . that Knox from time to time provided . . .
guidance to . . . James Hatton," a drug dealer who used Knox as a cocaine source. App.
at 66. The PSI observes that "Hatton order[ed] quantities of cocaine from Gregory
Knox that substantially exceeded the quantities that could be intended by Hatton for
personal use. In these conversations, Hatton discus[sed] with Knox the difficulties
associated with the operations of Hatton’s drug-dealing business that included the
collecting of drug-related debts from cocaine buyers." PSI 28. We cannot conclude
that the District Court’s finding that the criminal activity involved five or more
participants was clearly erroneous.
                              III.
     Knox also argues that the District Court erred in classifying him as a career
offender. Specifically, Knox disputes the District Court’s determination that his prior
burglary conviction was a "crime of violence." The Sentencing Guidelines define "crime
of violence" to include a burglary of a dwelling. U.S.S.G. 4B1.2(a).
     In 1990 Knox was charged in a New Jersey state indictment with "unlawfully
enter[ing] the structure and/or separately secured or occupied portion thereof, of Craig
Off, at 201 New Road Absecon, New Jersey with the purpose to commit an offense
therein." App. at 88. Knox pleaded guilty. The statute to which Knox pleaded guilty,
N.J. Stat. Ann. 2C:18-2 (West 2002), is broad enough to criminalize both the entering
of a dwelling and the entering of a commercial establishment. Under similar
circumstances, we have held that "in the absence of conclusive proof," a sentencing court
may consider "certain easily produced court documents, such as plea colloquy" in
determining whether a conviction qualifies as a predicate offense for purposes of
U.S.S.G. 4B1.2. United States v. Hernandez, 

, 279 (3d Cir. 2000).
     Here, the District Court found that
     [i]t’s clear to me that there is evidence in the record which indicates that
     the upstairs apartment was in fact burglarized. Mr. Knox’s account, which
     is set forth under "defendant’s account" in the police report says, "on
     2/22/90 I went into a property in Absecon with intent to steal something. I
     did not have permission to enter the property." I think that that coupled
     with the language I quoted earlier in the police report relating to the
     ransacking of the upstairs apartment, plus a fair reading of the indictment
     to which Mr. Knox pled guilty, convinces me that the government has
     proven . . . by a preponderance of the evidence that Mr. Knox committed a
     burglary of a residence . . . .
App. at 43. The PSR explains that the language of the indictment "incorporate[s the
charge of a burglary of a dwelling] by referring to the occupied portion of Craig Off’s
property." PSR 106a.
     Citing the Eleventh Circuit’s decision in United States v. Hernandez, 

(11th Cir. 1998), Knox argues that the District Court erred in relying on the arrest
report. In Hernandez, the district court had resolved ambiguities in whether prior
convictions constituted qualifying offenses for career offender status pursuant to
U.S.S.G. 4B1.1 by relying solely on "arrest affidavits." The court of appeals
determined that the sentencing court erred by relying on the affidavits, because "[i]t is
not the conduct for which [the defendant] was arrested which is the determining factor . .
. . [r]ather, the focus of the inquiry must be upon ’the conduct of which the defendant
was convicted.’" 

.
     Knox’s argument is not persuasive. We agree that there is some ambiguity as to
whether Knox was convicted of the burglary of a residence, but we cannot say that the
District Court’s resolution of that ambiguity is "completely devoid of a credible
evidentiary basis or bears no rational relationship to the supporting data." Combined
with the other evidence considered by the District Court, the indictment may be fairly
read to charge Knox with burglarizing the residence of Craig Off. Accordingly, the
District Court did not clearly err.
                              IV.
     For the reasons set forth, we will affirm the judgment of the District Court.
___________________

TO THE CLERK:

          Please file the foregoing opinion.


                    /s/Dolores K. Sloviter
                    Circuit Judge