In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3000

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARLOS D. KNOX,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 4:00CR400072-001—J. Phil Gilbert, Judge.

____________

ARGUED FEBRUARY 15, 2002—DECIDED AUGUST 28, 2002

____________

Before ROVNER, DIANE P. WOOD, and EVANS, Circuit

Judges.

ROVNER, Circuit Judge. A jury found Carlos Knox guilty

on two counts of possessing crack cocaine with the intent

to distribute, 21 U.S.C. § 841(a)(1). The district court

sentenced him to 240 months’ imprisonment on the first

count and 180 months’ imprisonment on the second count,

to be served consecutively. The district court also imposed concurrent terms of 3 years’ supervised release, a

fine of $500 for each count, and special assessments totaling $200. On appeal Knox contends that the district court

improperly admitted evidence of his prior bad acts, that

his trial counsel had a conflict of interest, and that he

was sentenced in violation of Apprendi v. New Jersey, 530

U.S. 466 (2000). We affirm.
2 No. 01-3000

I. Background

Once in January 1999 and again in June 2000, Knox

sold crack cocaine to buyers cooperating with law enforcement agents. He was arrested on federal drug charges in

August 2000 and went to trial the following December. At

trial the government introduced evidence of nine other

drug transactions in which Knox had participated. Each

time before admitting the evidence the district court

instructed the jury that the evidence was being offered

for the limited purpose of showing Knox’s knowledge

and intent, not for the purpose of showing his propensity

to commit the charged crimes. See Fed. R. Evid. 404(b).

Defense counsel’s only objection to the admission of the

Rule 404(b) evidence was to the playing of an audiotape of a controlled buy that occurred approximately one

month before the January 1999 transaction:

MR. VANNI: I realize the Court is letting this evidence in. It’s Rule 404(b) evidence, but

nonetheless, I do want to make, for the

record, an objection to the playing of

this particular tape of this particular

transaction on December 3rd on the

basis that Mr. Knox is not charged with

this particular transaction.

THE COURT: Okay.

MR. VANNI: I want to make that for the record.

THE COURT: Okay. Your objection has been noted.

MR. MOORE: I assume it’s overruled.

THE COURT: Yes.

After the jury found him guilty, Knox submitted a pro se

motion seeking to overturn the verdict on the ground that

his attorney had a conflict of interest because he previously represented government witness Charrod Patton in a
No. 01-3000 3

separate criminal case. In addition, Knox wrote a letter

informing his attorney that he had reported him to the

Illinois Attorney Registration and Disciplinary Commission

and that Knox wanted him to withdraw from the case.

Accordingly, Knox’s attorney moved to withdraw, and

the district court granted the motion. The district court

then denied Knox’s pro se motion without comment and

appointed new counsel. The district court did not conduct a hearing to determine whether Knox’s first attorney

had also represented Patton.

Knox’s new counsel represented him at sentencing

and contested the amount of cocaine attributed to Knox.

He also argued against imposing a two-level upward

adjustment for obstruction of justice. Based on the

presentence investigation report and the testimony of a

law enforcement officer who recounted a proffer from a

government witness, the district court concluded that

23 ounces of crack cocaine and 5 ounces of powder cocaine were attributable to Knox. The district court also

concluded that Knox deserved a two-level increase for

obstruction of justice because at trial he perjured himself

by specifically denying various drug transactions that the

court found had occurred. See U.S.S.G. § 3C1.1. Thus, Knox

had an offense level of 38 and a criminal history category

of VI, resulting in a guidelines range of 360 months’ to

life imprisonment. Recognizing that the statutory maximum

sentence for each count was 20 years’ imprisonment,

21 U.S.C. § 841(b)(1)(C), the district court sentenced Knox

to 240 months’ incarceration on count one to be followed

by 180 months’ incarceration on count two.

II. Discussion

A. Rule 404(b)

Knox first argues that the district court erred in admitting under Rule 404(b) evidence of nine bad acts. Such
4 No. 01-3000

evidence is inadmissible if it is offered to show that the

defendant’s charged conduct conformed to his previous

behavior. Fed. R. Evid. 404(b); United States v. Curtis,

280 F.3d 798, 801 (7th Cir. 2002). But evidence of a defendant’s bad acts is admissible if it (1) is relevant to a

matter other than the defendant’s propensity to commit a

crime; (2) is similar and close enough in time to be relevant to the matter at issue; (3) is sufficient to support a

jury finding that the defendant committed the similar

act; and (4) has a probative value that is not substantially

outweighed by the danger of unfair prejudice. United States

v. Conley, 291 F.3d 464, 472 (7th Cir. 2002).

The government contends that Knox forfeited his Rule

404(b) argument because he objected to only one piece of

Rule 404(b) evidence and, according to the government, that

objection was too ambiguous to preserve the issue for

appeal. We agree that Knox forfeited his right to challenge the admission of Rule 404(b) evidence to which he

did not object at trial, and we thus review the admission

of that evidence only for plain error. See United States

v. Gibson, 170 F.3d 673, 681 n.4 (7th Cir. 1999). But

Knox’s objection to an audiotape of a controlled buy in

December 1998 is arguably based on the final factor of

the Rule 404(b) test because he identified the relevant

rule and objected to the playing of the audiotape immediately after a government witness recounted its content. We

need not decide, however, whether Knox’s objection sufficiently preserved the Rule 404(b) issue for appeal because

Knox’s argument fails even if we were to review it for

an abuse of discretion. See Okai v. Verfuth, 275 F.3d 606,

610 (7th Cir. 2001).

Knox concedes that the evidence of his bad acts “may

satisfy the first three parts” of the Rule 404(b) test. Knox

instead contends that the cumulative prejudice from the

admission of nine other drug transactions overwhelmed the

district court’s limiting instructions to the jury. He fur-
No. 01-3000 5

ther argues that the admission of the audiotape of the

December 1998 controlled buy overwhelmed the instructions because two other witnesses had already testified

to that controlled buy. We presume, however, that the

jury followed the district court’s instructions to consider

the Rule 404(b) evidence only for the purpose of evaluating Knox’s knowledge that he possessed crack and his

intent to distribute, not for his propensity to commit

the crimes charged. See United States v. Miller, 276 F.3d

370, 375 (7th Cir. 2002); United States v. Scop, 940 F.2d

1004, 1008 (7th Cir. 1991). Moreover, “intent to distribute

drugs and knowledge that a particular substance is a

narcotic often are proven through testimony about prior

sales of controlled substances.” United States v. Jones, 248

F.3d 671, 675 (7th Cir.), cert. denied, 122 S. Ct. 283 (2001);

see also United States v. Denberg, 212 F.3d 987, 993-94

(7th Cir. 2000) (collecting cases). And the government must

prove a defendant’s intent to distribute even when that

defendant does not claim to have acted with innocent

intentions. Jones, 248 F.3d at 675; United States v. Brown,

34 F.3d 569, 573 (7th Cir. 1994). Thus, we find no abuse

of discretion or plain error because the trial judge was

in a better position to analyze the cumulative effect of

the Rule 404(b) evidence and to determine whether that

evidence was needed to prove knowledge and intent. See

Brown, 34 F.3d at 574; United States v. Nolan, 910 F.2d

1553, 1559, 1561 (7th Cir. 2000) (no abuse of discretion

in admitting evidence of seventeen prior bank robberies

because, in part, the evidence was relevant to defendant’s

intent to commit larceny).

B. Apprendi

Knox next contends that his sentences violate Apprendi

because two facts not decided by the jury increased his

prison terms beyond the statutory maximum: (1) the
6 No. 01-3000

amount of cocaine attributed to him; and (2) his perjury

at trial. But a particular sentence does not even implicate Apprendi unless it exceeds a default statutory maximum, United States v. Jones, 245 F.3d 645, 649 (7th Cir.

2001), and for distributing less than five grams of cocaine

the default maximum prison term is 20 years. 21 U.S.C.

§ 841(b)(1)(C). Thus, because neither of Knox’s prison

terms—240 months on count one and 180 months on count

two—exceeds that maximum, Apprendi is irrelevant.

Moreover, Apprendi is never relevant to guidelines calculations. United States v. Behrman, 235 F.3d 1049, 1054

(7th Cir. 2000); Talbott v. Indiana, 226 F.3d 866, 869 (7th

Cir. 2000); Hernandez v. United States, 226 F.3d 839, 841-

42 (7th Cir. 2000).

Knox, however, contends that his aggregate 420-month

prison sentence implicates Apprendi because the grouping of his drug offenses under U.S.S.G. § 3D1.2(d) mandated a statutory maximum sentence of 360 months’

incarceration. See U.S.S.G. § 3D1.2(d); 21 U.S.C. § 841(b)

(1)(C). That argument is without merit because grouping multiple counts under § 3D1.2(d) merely affects the

offense level used in establishing a guidelines range and

cannot change a statutory penalty. See United States v.

Knox, 287 F.3d 667, 669 (7th Cir. 2002); United States v.

Parolin, 239 F.3d 922, 930 (7th Cir.), cert. denied, 533

U.S. 923 (2001); United States v. Feola, 275 F.3d 216, 219-

20 (2d Cir. 2001). Thus, Knox’s statutory maximum prison

sentence for each count remained at 20 years, and the

terms imposed did not violate Apprendi because they did

not exceed that maximum.

C. Conflict of Interest

Finally, Knox argues in his briefs that the district court

erred by not conducting a hearing to determine whether

his trial attorney also represented a government witness
No. 01-3000 7

in a separate criminal proceeding. But at oral argument

we asked Knox whether he wished to withdraw this argument so that he could preserve his ability to raise it

later in a collateral attack. See United States v. Hardamon,

188 F.3d 843, 847 (7th Cir. 1999). Because Knox chose

to withdraw the argument, we will not discuss the

issue further.

III. Conclusion

Accordingly, we AFFIRM Knox’s convictions and sentences.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—8-28-02