United States v. Knox

193 F. App'x 780
Court of Appeals for the Tenth Circuit·Decided August 24, 2006·No. No. 06-2007·Published·Cited by 1 cases

Opinion

ORDER AND JUDGMENT*

WADE BRORBY, Circuit Judge.

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 Knox, a federal prisoner represented by counsel, 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. We exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm Mr. 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 Mexico. 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 “Michael Wright.” The bus driver stated a man by that name boarded the bus. A passenger then identified himself as Michael Wright, but was later determined to be Ray Charles Knox, to whom we refer hereafter. Mr. 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.

Mr. Knox pled guilty to an indictment charging him with possession of less than [782] fifty kilograms of marijuana with the intent to distribute it, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(D). Following Mr. 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. § 2Dl.l(c)(12), he calculated Mr. 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 Mr. Knox’s criminal history category at V, the probation officer included two California juvenile criminal convictions, totaling two criminal history points each, in which Mr. 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.

Mr. 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. With respect to his conviction for possession of a stolen firearm, Mr. 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 Minor.” He 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, Mr. Knox’s counsel argued the uncertified or unsigned judgments in the two juvenile convictions used by the probation officer in calculating Mr. Knox’s criminal history score were 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 Mr. Knox’s sentencing to a later date for the purpose of obtaining the requested judgments on Mr. Knox’s juvenile convictions. Thereafter, the government obtained certified judgments from the California Superior Court, Juvenile Division, on Mr. 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 Mr. Knox’s juvenile criminal history score objections and the government’s response to those objections; it then rejected Mr. Knox’s arguments and sentenced him at the low end of the applicable Guidelines range to thirty months imprisonment.

On appeal, Mr. 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 unlawful “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 “Posses[783] sion of Firearm by Minor.” He 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 commencement of the instant offense. In support of this argument, Mr. 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.

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United States v. Knox, 193 F. App'x 780 (10th Cir. 2006).

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