                           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 im-
posed concurrent terms of 3 years’ supervised release, a
fine of $500 for each count, and special assessments total-
ing $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 enforce-
ment 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 audio-
tape of a controlled buy that occurred approximately one
month before the January 1999 transaction:
    MR. VANNI:      I realize the Court is letting this evi-
                    dence 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 previous-
ly 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 con-
duct 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 co-
caine 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 admit-
ting 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 de-
fendant’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 rele-
vant 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 chal-
lenge 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 immedi-
ately after a government witness recounted its content. We
need not decide, however, whether Knox’s objection suffi-
ciently 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 instruc-
tions 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 evaluat-
ing 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 impli-
cate Apprendi unless it exceeds a default statutory maxi-
mum, 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 cal-
culations. 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 group-
ing of his drug offenses under U.S.S.G. § 3D1.2(d) man-
dated 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 group-
ing 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 ar-
gument 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
