NOT PRECEDENTIAL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, 65 F.3d 1074, 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, 107 F.3d 213, 218 (3d Cir. 1997) (quoting

American Home Prods. Corp. v. Barr Labs., Inc., 834 F.2d 368, 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." Id. at 8. Knox urges that

under United States v. Paulino, 996 F.2d 1541 (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." Id. at 1548. 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 or

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 that

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, 218 F.3d 272, 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, 145 F.3d

1433 (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.'" Hernandez, 145 F.3d at 1440.

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