United States v. Knox ( 2006 )

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This order and judgment is not binding precedent except under the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
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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
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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
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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.
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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
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§ 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
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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).
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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.
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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
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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.
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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
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