F I L E D
United States Court of Appeals
Tenth Circuit
APR 7 1998
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 96-1502
v. D. Colorado
ALBERT KNOWLES, also known as (D.C. No. 96-CR-86-Z)
Alvin Cole, also known as A.J.,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. This cause is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines of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.
Albert Knowles appeals his sentence imposed pursuant to a guilty plea for
conspiring to possess with intent to distribute crack cocaine in violation of 21
U.S.C. §§ 841(a)(1) and 846. We dismiss the appeal.
BACKGROUND
In July 1996, Knowles entered into a conditional guilty plea to the charge
of conspiracy to possess with intent to distribute crack cocaine. As part of the
plea agreement, the government agreed not to file an information under 21 U.S.C.
§ 851(a)(1) for an enhanced penalty and to dismiss all other counts of both the
original and the superseding indictments. In addition, the parties stipulated that
an enhancement under U.S.S.G. § 3B1.1(c) for Knowles’ role in the offense was
warranted, and they agreed, pursuant to Fed. R. Crim. P. 11(e)(1)(C), that the
sentence imposed would not be less than 151 months and not more than 180
months. 1 After determining that the plea was voluntary at the change of plea
hearing, the district court accepted Knowles’ plea.
At the sentencing hearing in October 1996, Knowles challenged the
presentence investigation report’s recommendation that he receive a two-level
1
The plea agreement expressly stated that should the court impose a sentence of
greater than 180 months, Knowles would have the right to withdraw his guilty plea. Plea
Agreement ¶ 4. Similarly, should the court impose a sentence of less than 151 months,
the government would have the right to withdraw its plea offer and the agreement. Id.
¶ 5.
-2-
enhancement for the possession of a firearm. In particular, Knowles argued that
he did not own the gun. The government responded that the firearm enhancement
should apply because the firearm had been found in Knowles’ residence and in
close proximity to drugs, drug paraphernalia, and ammunition. 2 The court agreed,
granting the enhancement and subsequently sentencing Knowles to 180 months’
imprisonment, followed by five years’ supervised release. 3 Although the sentence
imposed by the court was within the range agreed upon in the plea agreement,
Knowles filed a notice of appeal in November 1996.
Three days later, pursuant to Anders v. California, 386 U.S. 738 (1967),
Knowles’ counsel filed his appellate brief and simultaneously moved to withdraw,
advising this court that he believes the issues advanced on appeal are frivolous.
Knowles was then given the opportunity to file a pro se brief, which he did.
Knowles argues that: (1) the court improperly enhanced his sentence under
U.S.S.G. § 2D1.1(b)(1) for possession of a firearm because there was no firearm
present at the time of arrest, because he possessed no firearm during the course of
the conspiracy, and because no drug distribution occurred in the residence where
the firearm was found; (2) the court improperly enhanced his sentence under
The parties stipulated to these facts in the plea agreement. Plea Agreement ¶ 21.
2
In arriving at this sentence, the court also increased Knowles’ offense level
3
pursuant to U.S.S.G. § 3B1.1(c) for role in the offense, as agreed upon in the plea
agreement. In addition, the court departed downward two levels based on the
government’s motion under U.S.S.G. § 5K1.1 for substantial assistance.
-3-
U.S.S.G. § 3B1.1(c) for his role in the offense because none of his codefendants
was convicted of the same conspiracy charge and therefore he could not have
supervised anyone; and (3) the court improperly considered the hearsay statement
of a codefendant in making a factual finding. Appellant’s Br. at 3-4.
DISCUSSION
We review the district court’s factual findings for clear error. United
States v. Pappert, 112 F.3d 1073, 1078 (10th Cir. 1997); see also 18 U.S.C.
§ 3742(e). We review the district court’s interpretation and application of the
sentencing guidelines de novo. Pappert, 112 F.3d at 1078.
According to 18 U.S.C. § 3742, in a case involving a plea agreement with a
specific sentence under Fed. R. Crim. P. 11(e)(1)(C), a defendant can appeal his
sentence only if the sentence was imposed in violation of law, was imposed as a
result of an incorrect application of the guidelines, or is greater than the sentence
set forth in the plea agreement. United States v. Denogean, 79 F.3d 1010, 1013-
14 (10th Cir.), cert. denied, 117 S. Ct. 154 (1996). None of these conditions
applies here, and therefore we lack jurisdiction over this appeal.
First, based on the evidence presented, the district court properly enhanced
Knowles’ sentence for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). To
show “possession” as required by the guidelines, it is generally sufficient to show,
-4-
as the government did here, that the weapon was found in the same location where
drugs or drug paraphernalia were stored. 4 See United States v. Roederer, 11 F.3d
973, 983 (10th Cir. 1993); Appellee’s Br. at 8-9 (stating that the firearm was
found “within inches” of crack cocaine, marijuana, mixing jars, wrappers, a scale,
precursor chemicals, and a substantial amount of cash).
Second, the court properly enhanced Knowles’ sentence for role in the
offense pursuant to U.S.S.G. § 3B1.1(c). Knowles stipulated in the plea
agreement that such an enhancement was appropriate. In addition, it is irrelevant
that none of his codefendants was convicted of the same charge as he; no such
limitation is contemplated by § 3B1.1(c). Knowles pleaded guilty to
conspiracy—an offense that includes the participation of more than one person
and is thus properly enhanced pursuant to § 3B1.1(c). See United States v.
Hargus, 128 F.3d 1358, 1365 (10th Cir. 1997), petition for cert. filed (U.S. Dec.
4
Although Knowles asserted at sentencing that the gun belonged to a codefendant,
Melina Perry, he does not raise this issue on appeal. Nevertheless, we note that the
government correctly argues that for purposes of § 2D1.1(b)(1), it is irrelevant whether
Knowles owned the firearm, as long as Knowles either possessed the firearm, knew a
codefendant possessed the firearm, or could have reasonably foreseen a codefendant’s
possession of the firearm. See Appellee’s Br. at 9-10 (citing United States v. Underwood,
982 F.2d 426, 428 (10th Cir. 1992)).
We note also that once the government proved possession by a preponderance of
the evidence, the burden then shifted to Knowles to show that the “clearly improbable”
exception applied to him. See United States v. Roberts, 980 F.2d 645, 647 (10th Cir.
1992). Knowles does not argue that he satisfied this burden.
-5-
5, 1997) (No. 97-7024); United States v. Baez-Acuna, 54 F.3d 634, 639 (10th Cir.
1995).
Finally, it was not improper for the district court to consider hearsay
evidence at sentencing. Because the Federal Rules of Evidence do not apply at
sentencing hearings, hearsay statements may be used at sentencing as long as they
possess some “minimum indicia of reliability.” United States v. Browning, 61
F.3d 752, 754-55 (10th Cir. 1995); see United States v. Beaulieu, 893 F.2d 1177,
1179-80 (10th Cir. 1990). In this case, Knowles asserts merely that the hearsay
statement in question was “totally unreliable,” but offers nothing to support this
claim. See Beaulieu, 893 F.2d at 1179-81 (finding hearsay evidence admissible
where there was no showing of unreliability); see also Drake v. City of Fort
Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“Despite the liberal construction
afforded pro se pleadings, the court will not construct arguments or theories for
the plaintiff in the absence of any discussion of those issues.”).
CONCLUSION
Accordingly, we DISMISS the appeal for lack of jurisdiction and GRANT
counsel’s Motion to Withdraw.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-6-