                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2004

USA v. Pagley
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2004




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-2004


                           UNITED STATES OF AMERICA

                                            v.

                             ALEXANDER PAGLEY, SR.,

                                                 Appellant


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                              (D.C. No. 02-cr-00018-02)
                        District Judge: Hon. Gary L. Lancaster




                       Submitted under Third Circuit LAR 34.1(a)
                                    April 1, 2004

               Before: ALITO, FISHER and ALDISERT, Circuit Judges.

                                 (Filed: April 14, 2004)




                              OPINION OF THE COURT


ALDISERT, Circuit Judge.

      Because we write for the parties only, the background of this case is not set forth.

This appeal by Alexander Pagley, Sr., requires us to decide whether his sentence should
be vacated and the proceedings remanded for a new sentencing hearing on the issues of

Pagley, Sr.’s alleged minimal role in the criminal activity that led to his indictment and

the number of illegally sold firearms for which Pagley, Sr., can be held responsible.

         Pagley, Sr., stipulated that the conduct charged in counts one, two, three, five and

seven could be considered by the district court in imposing a sentence. Pagley, Sr., and

the government agreed, however, that Pagley, Sr.’s acknowledgment of responsibility for

the conduct charged in those counts did not preclude him from disputing the number of

firearms attributable to him for the purpose of an increase in offense level pursuant to

United States Sentencing Commission, Guidelines Manual, § 2K2.1(b)(1)(C) (Nov.

2000).

         The district court did not commit clear error in determining that Pagley, Sr., should

be held responsible for the illegal sale of all nine firearms. Pagley, Sr., need not have

been convicted of the conspiracy count in order for the district court properly to consider

the conduct alleged in that count for the purpose of sentencing. See United States v.

Watts, 519 U.S. 148, 152-153 (1997) (per curiam). The district court determined that the

relevant conduct had been established by a preponderance of the evidence, which

included, among other things, Pagley, Sr.’s acknowledgment of responsibility. See

United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993).

         Pagley, Sr., was present during and participated in all of the sales. During the first

visit he suggested that the undercover agent fill out forms and purchase a shotgun for the



                                                2
cooperator (“RG”), whose background check had come back “delayed” for further

investigation into his eligibility to purchase firearms. He assisted the other three

members of the conspiracy in falsifying information on federal and state forms required

for the firearms purchases. We reject his contention that he was unaware of the content

of the forms.

       Given Pagley, Sr.’s participation, the sale of all nine firearms was reasonably

foreseeable to him. See U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, the district court’s

determination to follow the recommendation of the Presentence Investigation Report and

increase the offense level by three does not warrant vacation of the sentence and remand

for a new sentencing hearing. See U.S.S.G. § 2K2.1(b)(1)(C).

       The district court did not err in determining that Pagley, Sr., should be given a

two-level reduction as a minor participant in the criminal activity and not a four-level

reduction as a minimal participant. See U.S.S.G. § 3B1.2.

       The district court did not commit legal error in interpreting the terms “minimal

participant” and “minor participant.” Contrary to assertions by Pagley, Sr., the district

court did not consider that knowledge of the enterprise alone precluded a finding of

minimal participation. See United States v. Isaza-Zapata, 148 F.3d 236, 239 (3d Cir.

1998). The district court’s statement that lack of knowledge and understanding of the

scope and structure of the enterprise and activities of others is merely “indicative” (as

distinguished from “determinative”) of a role as a minimal participant supports this



                                              3
conclusion. (App. at 96.)

       The district court’s factual determination that Pagley, Sr., was a minor but not

minimal participant was not clearly erroneous. See United States v. Perez, 280 F.3d 318,

351 (3d Cir. 2002). The district court properly found that Pagley, Sr., was less culpable

than others in the conspiracy but not that he was the least culpable for purposes of the

Guidelines. Pagley, Sr., suggested that the undercover agent’s name be called in to the

Pennsylvania Instant Check System in order to circumvent the delayed status placed on

RG’s eligibility to purchase the shotgun. He also assisted in filling out paperwork by

offering support and direction. He suggested that the undercover agent fill out extra

forms so RG could purchase firearms alone. He accepted cash payments for the sales.

The difference between “minor” and “minimal” is always a matter of degree. These facts

indicate “minor” and not “minimal” participation.

       We have considered all contentions raised by the parties and conclude that no

further discussion is necessary.

       The judgment of the district court will be affirmed.




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