United States of America v. Alexander Pagley, Sr

NOT PRECEDENTIAL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

-- 1 of 4 --

2
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 of 4 --

3
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 of 4 --

4
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.

-- 4 of 4 --