United States v. Knox

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 24, 2006
• Docket: 06-2007
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 24, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 06-2007 (D . N.M .) R AY CH A RLES K N O X , (D.Ct. No. CR-05-698 RB)

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Appellant Ray Charles K nox, a federal prisoner represented by counsel,

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. appeals his sentence following his guilty plea to possession with intent to

distribute less than fifty kilograms of marijuana, in violation of 18 U.S.C. § 2 and

21 U.S.C. § 841(a)(1) and (b)(1)(D), on grounds two prior juvenile convictions

should not have been used to calculate his criminal history score. W e exercise

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm M r.

Knox’s conviction and sentence.

On January 7, 2005, United States Border Patrol agents conducted a routine

traffic check on a commercial bus at the border patrol checkpoint west of

Alamogordo, New M exico. An agent, together with a dog trained to detect the

presence of controlled substances, inspected the lower luggage compartment of

the bus, and the dog alerted to two suitcases. The identification tags on both

suitcases displayed the name “M ichael W right.” The bus driver stated a man by

that name boarded the bus. A passenger then identified himself as M ichael

W right, but was later determined to be Ray Charles Knox, to whom we refer

hereafter. M r. Knox said the two suitcases belonged to him and consented to a

search. Agents discovered twenty bundles, wrapped in gray duct tape and

vacuum-sealed bags, which contained 24.2 kilograms of marijuana.

M r. Knox pled guilty to an indictment charging him with possession of less

than fifty kilograms of marijuana with the intent to distribute it, in violation of 18

-2- U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(D ). Following M r. Knox's guilty

plea, a probation officer prepared a presentence report, in which he calculated a

recommended sentence using the United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”). Based on the Drug Quantity Table found in

U.S.S.G. § 2D1.1(c)(12), he calculated M r. Knox’s base offense level at 16

because the amount of marijuana involved was at least ten kilograms but less than

twenty kilograms. The probation officer then reduced the offense level three

points under U.S.S.G. § 3E1.1 for acceptance of responsibility, for a total offense

level of 13. In calculating M r. Knox’s criminal history category at V, the

probation officer included two California juvenile criminal convictions, totaling

two criminal history points each, in which M r. Knox, at the age of sixteen,

admitted to knowingly possessing a stolen firearm (which was loaded and

concealed under his clothing at the time of his arrest); and, at the age of fourteen,

committed a robbery by assaulting and taking a purse from a female victim.

Based on a total offense level of 13 and a criminal history category of V, the

recommended Guidelines sentencing range was thirty to thirty-seven months

imprisonment.

M r. Knox did not contest the findings of fact in the presentence report, but

objected to the inclusion of his two state juvenile convictions in calculating his

criminal history score. W ith respect to his conviction for possession of a stolen

-3- firearm, M r. Knox claimed it met the definition of a “juvenile status offense”

under U.S.S.G. § 4A1.2(c)(2) because it constituted a crime which could not be

committed by an adult, given the crime was entitled “Possession of Firearm by

M inor.” H e further argued his conviction for robbery could not be included in his

criminal history score because of the uncertainty as to whether his sentence for

the offense was within five years of his commencement of the instant offense, as

required by U.S.S.G. § 4A1.2(d)(2)(A).

At the sentencing hearing on August 29, 2005, M r. Knox’s counsel argued

the uncertified or unsigned judgments in the two juvenile convictions used by the

probation officer in calculating M r. Knox’s criminal history score w ere

insufficient for the purpose of applying those convictions to his score. At his

request, and with the agreement of the government, the district court continued

M r. Knox’s sentencing to a later date for the purpose of obtaining the requested

judgments on M r. Knox’s juvenile convictions. Thereafter, the government

obtained certified judgments from the California Superior Court, Juvenile

Division, on M r. Knox’s disputed juvenile convictions, which did not deviate

from the information originally obtained and used in the initial presentence

report. Another sentencing hearing was held December 19, 2005, at which time

the district court considered M r. Knox’s juvenile criminal history score objections

and the government’s response to those objections; it then rejected M r. Knox’s

-4- arguments and sentenced him at the low end of the applicable G uidelines range to

thirty months imprisonment.

On appeal, M r. Knox renews his claim neither of his juvenile convictions

can be used in calculating his criminal history. First, he claims his juvenile

firearm conviction is a “juvenile status offense” under U.S.S.G. § 4A1.2(c)(2)

because the same crime could not be committed by an adult. In support of his

argument he claims: 1) his possession of the firearm was unlaw ful “solely

because of his age”; an adult may lawfully carry a firearm; and the crime for

which he was convicted only applies to juveniles because it was entitled

“Possession of Firearm by M inor.” H e also renews his contention his juvenile

robbery conviction may not be used to calculate his criminal history score

because his release from confinement ended more than five years prior to the

comm encement of the instant offense. In support of this argument, M r. Knox

claims he was sentenced to zero to sixty days confinement, which was imposed in

1996, and his judgment was never amended by judicial order.

W e review for reasonableness the ultimate sentence imposed. United States

v. Booker, 543 U .S. 220, 261-62 (2005). “W e require reasonableness in two

respects – the length of the sentence, as well as the method by which the sentence

was calculated.” United States v. Lopez-Flores, 444 F.3d 1218, 1220 (10th Cir.

-5- 2006) (quotation marks and citation omitted), petition for cert. filed (U.S. July 7,

2006) (No. 06-5217). If the district court “properly considers the relevant

Guidelines range and sentences the defendant within that range, the sentence is

presumptively reasonable,” but “[t]he defendant may rebut this presumption by

demonstrating that the sentence is unreasonable in light of the other sentencing

factors laid out in § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1055 (10th

Cir. 2006). In determining whether the district court properly considered the

applicable G uidelines range, we review its legal conclusions de novo and its

factual findings for clear error. Id.

W ith respect to the applicable Guidelines range in this appeal, U.S.S.G.

§ 4A1.2(c)(2) states sentences for “juvenile status offenses” should not be

counted in calculating criminal histories. On the other hand, we have held

“[j]uvenile convictions, other than for [juvenile] status offenses, may be used to

add points to a defendant’s criminal history category pursuant to § 4A1.2(d)(2).”

United States v. M iller, 987 F.2d 1462, 1465 (10th Cir. 1993). Under § 4A1.2,

two criminal history points are added for a juvenile conviction which is not a

“juvenile status offense” if it resulted in a sentence of confinement of at least

sixty days and the defendant was released from such confinement within five

years of his commencement of the instant offense. U.S.S.G. § 4A1.2(d)(2)(A).

However, the Guidelines do not define “juvenile status offenses” as used in

-6- § 4A1.2. United States v. Whitney, 229 F.3d 1296, 1309 (10th Cir. 2000). As a

result, we have followed other circuits which concluded “‘juvenile status

offenses’ include only those status offenses committed by persons under

eighteen” which are “non-serious offenses” and which, “regardless of the title of

the offense,” involved “underlying conduct [which] would not have been criminal

if committed by an adult.” Id. (citations omitted). W e have also held the policy

considerations underlying § 4A1.2 are apparent, given the Sentencing

Commission concluded “the listed offenses under (c)(2) [including ‘juvenile

status offenses’] are of such minor significance relative to the goals of sentencing

that they are never counted, regardless of the degree of punishment imposed or

the similarity between the prior and current offenses.” United States v. Perez De

Dios, 237 F.3d 1192, 1197 (10th Cir. 2001).

Applying these legal principles, our standard of review, and the policy

considerations underlying § 4A1.2, we conclude the district court did not err in

applying M r. Knox’s juvenile convictions in calculating his criminal history

score. First, with respect to his conviction for possessing a firearm at the age of

sixteen, M r. K nox does not contest the facts the gun was later found to be stolen,

he admitted to knowing it was stolen, and the gun was loaded and concealed

under his clothing when he was arrested. W hile he was obviously under eighteen

years of age when he committed the offense, the offense of carrying a stolen gun

-7- is a serious one, and the underlying conduct of knowingly possessing a stolen

firearm constitutes criminal conduct under either federal or state law, even if

committed by an adult. 1 W hile M r. Knox contends an adult may legally carry a

firearm, his argument conveniently omits the fact the conviction in this case

involved possession of a stolen firearm. Similarly, the fact the crime for which

he was convicted was entitled “Possession of Firearm by M inor” does not change

the result, given the underlying conduct would have been criminal if committed

by an adult “regardless of the title of the offense.” Whitney, 229 F.3d at 1309

(emphasis added). For these reasons, his prior conviction for possessing a firearm

meets the criteria for being a juvenile conviction, not a “juvenile status offense,”

and the district court properly included it in calculating his criminal history score.

Next, with respect to M r. Knox’s juvenile conviction for robbery at the age

of fourteen, he does not contend it was a “juvenile status offense” which cannot

be used in calculating his criminal history score. Rather, he argues it may not be

counted because he was sentenced to zero to sixty days, his sentence was imposed

1 See, e.g., 18 U.S.C. § 922(I) (making it unlaw ful to transport in interstate commerce any stolen firearm knowing or having reasonable cause to believe it was stolen); Cal. Penal Code § 12025(b)(2) (making it a felony to carry a concealed firearm which the person knew or had reasonable cause to believe was stolen); Cal. Penal Code § 12031(a)(2)(B) (making it a felony to carry a loaded firearm where the firearm is stolen and the person knew or had reasonable cause to believe it was stolen); Cal. Penal Code § 496 (making it illegal to buy or receive property which the person knew was stolen).

-8- in 1996, with his confinement ending more than five years prior to the

comm encement of the instant offense, and his judgment was never amended by

judicial order.

In this case, the government initially obtained unsigned or uncertified

judgments on M r. Knox’s juvenile convictions, but following the continuance of

sentencing, it obtained certified copies of those convictions from the California

Superior Court, Juvenile Division, which the record shows did not deviate from

the court records originally obtained and used in the initial presentence report.

W hile M r. Knox has not provided those judgments on appeal, 2 the record

submitted by the government establishes that on or about A ugust 29, 1996, a

California judge found the offense committed by M r. Knox to be a felony with a

maximum sentence of five years, but placed M r. Knox on home placement

probation with a stayed sentence of zero to sixty days in juvenile custody. His

probation was revoked several times on various grounds, and ultimately, he was

placed in a California Youth Authority facility on April 14, 1999, released from

2 It is the appellant’s responsibility to provide us with a proper record on appeal, and if the appellant’s appendix is insufficient to permit assessment of a claim of error, w e must affirm. See Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000); Rios v. Bigler, 67 F.3d 1543, 1553 (10th Cir. 1995) (citing Fed. R. App. P. 10(b)(2)). In this case, even though M r. Knox failed to provide the certified judgments considered by the district court, our affirmance is supported by information provided by the government, which M r. Knox has otherwise failed to rebut on appeal.

-9- custody and paroled on July 8, 2000, returned to the facility on September 27,

2000, for violation of his parole, and released from confinement and paroled on

February 3, 2001, with his final discharge from parole on the robbery conviction

occurring on M arch 21, 2003.

As previously mentioned, two points may be added to M r. Knox’s criminal

history score if his juvenile conviction resulted in a sentence of “confinement of

at least sixty days,” and he was “released from such confinement within five years

of his commencem ent of the instant offense.” U.S.S.G. § 4A1.2(d)(2)(A)

(emphasis added). The Guidelines further instruct “[r]evocation of probation,

parole, supervised release, special parole, or mandatory release may affect the

time period under which certain sentences are counted as provided in

§ 4A1.2(d)(2),” and that “[f]or the purposes of determining the applicable time

period” in the case of any confinement for an offense committed prior to a

defendant’s eighteenth birthday, one should use “the date of the defendant’s last

release from confinement on such sentence.” § 4A1.2(k)(2)(A) and (B)(ii). One

circuit applying these provisions has held a defendant’s juvenile confinement

which followed an original sentence of straight probation may be used to

calculate his criminal history score under § 4A1.2, where his probation was

repeatedly revoked for violations, he w as confined on three separate occasions,

and his final release from confinement on the conviction occurred within five

-10- years of commencing his instant offense. See United States v. M itchell, 354 F.3d

1013, 1014-15 (9th Cir. 2004). Similarly, in this case, M r. Knox violated the

terms of his home probation prior to its completion, resulting in his confinement

in a California Youth A uthority facility for at least sixty days and a final release

from confinement on his robbery conviction in February 2001, which clearly falls

within five years of his commencement of the instant offense on January 7, 2005.

For the foregoing reasons, we conclude the district court did not err in

including M r. Knox’s juvenile convictions in calculating his criminal history

score. See Lopez-Flores, 444 F.3d at 1220. Because the district court properly

considered the relevant Guidelines range and sentenced M r. Knox within that

range, his sentence is presumptively reasonable. M r. Knox has not otherwise

rebutted this presumption by demonstrating his sentence is unreasonable in light

of the sentencing factors in 18 U.S.C. § 3553(a), Kristl, 437 F.3d at 1055, or

otherwise provided anything in the record which suggests the district court erred,

either in its findings of fact or determinations of law.

-11- A ccordingly, for these reasons, we AFFIRM M r. Knox’s conviction and

sentence.

Entered by the C ourt:

W ADE BRO RBY United States Circuit Judge

-12-