United States v. Knox: No Variance Relief Without Concrete Prejudice and No Appellate Review for Invited Sentencing Errors

I. Introduction

The Third Circuit’s non-precedential opinion in United States v. Jamal Knox, No. 24‑1341 (3d Cir. Nov. 25, 2025), offers a concise but telling reaffirmation of two important appellate doctrines in federal criminal practice:

• The requirement that a defendant challenging a “variance” between the indictment and the proof must show actual prejudice to substantial rights, and
• The invited error doctrine, which bars a defendant from attacking on appeal a sentencing approach he affirmatively urged the district court to adopt.

Although marked “NOT PRECEDENTIAL” under the Third Circuit’s Internal Operating Procedures, the decision is instructive for practitioners handling conspiracy prosecutions and sentencing appeals, particularly when objections are not preserved at trial or sentencing.

Jamal Knox, alleged to be a supplier for a drug trafficking organization known as “Hustlas Don’t Sleep” (“HDS”), was convicted by a jury of conspiracy to distribute fentanyl. On appeal he raised:

1. A claim of prejudicial variance, arguing that the government proved multiple conspiracies rather than the single conspiracy charged in the indictment, and
2. A challenge to the district court’s drug quantity calculation, which drove his base offense level and ultimately his 293‑month sentence.

The panel (Judges Matey, Freeman, and Roth, with Judge Roth writing) affirmed the conviction and sentence in full, finding no demonstrated prejudice from any variance and holding that Knox’s sentencing argument was barred by invited error and waiver.

II. Factual and Procedural Background

A. The HDS Drug Trafficking Organization and Knox’s Role

Knox was indicted along with twelve others for activities tied to the “Hustlas Don’t Sleep” (“HDS”) drug trafficking organization. The indictment charged him with conspiring—together with his codefendants and others—to possess with intent to distribute heroin and fentanyl.

The government’s theory: Knox supplied heroin and fentanyl to HDS and had a “close relationship” with the group’s leader, Robert Howell Jr.

At Knox’s separate trial (most of his codefendants pleaded guilty), the government called:

• Five cooperating codefendants,
• Seven law enforcement witnesses, and
• A confidential informant, Anthony Gatto.

Gatto’s testimony was central. He described:

• His dealings with HDS, including sampling product and doing construction work on HDS houses;
• How Howell introduced him to Knox;
• How Knox supplied HDS with fentanyl and heroin;
• His own two controlled buys from Knox in 2019; and
• Referrals of other customers to Knox and details about Knox’s drug quality, packaging, and pricing.

Beyond HDS-linked conduct, the government also presented evidence of Knox’s sales to non‑HDS buyers. Of note were text messages between Knox and “Dej Cuddy,” which corroborated quantities, packaging, and pricing.

B. Verdict and Sentencing

The jury convicted Knox of conspiracy to distribute at least 40 grams but not more than 400 grams of fentanyl. At sentencing, the district court attributed between 280 and 400 grams of fentanyl to Knox and imposed a term of 293 months’ imprisonment.

The opinion makes clear that the quantity finding—and hence Knox’s sentencing exposure—stood at the center of his second appellate issue.

C. Issues on Appeal

Knox raised two main arguments on appeal:

1. Prejudicial variance (conspiracy issue): He contended that the indictment charged a single conspiracy, but the trial evidence showed three separate conspiracies:
   • Between Knox and HDS,
   • Between Knox and informant Anthony Gatto, and
   • Between Knox and “Dej Cuddy.”
   He argued that this mismatch between charge and proof, coupled with evidentiary “spillover,” prejudiced his rights.
2. Drug quantity calculation (sentencing issue): He argued that the district court erred in calculating the “base offense level” by relying on certain evidence to estimate drug quantity.

Because Knox raised the variance argument for the first time on appeal, the panel reviewed it only for plain error. The drug quantity issue was reviewed (in theory) for clear error, but the court concluded that the argument was barred by invited error and thus could not be considered on the merits.

III. Summary of the Opinion

The Third Circuit affirmed both Knox’s conviction and sentence.

A. Variance Claim

• The court assumed, without deciding, that there might be a variance between the indictment (single conspiracy) and the proof (possibly showing multiple conspiracies).
• However, even assuming a variance, Knox failed to show prejudice to any substantial right, which is a necessary element of a successful variance claim under United States v. Perez, 280 F.3d 318 (3d Cir. 2002).
• The “spillover” evidence that Knox complained about all directly implicated his own activities and was at least relevant to establishing his relationship with HDS and his drug distribution practices.
• Knox did not show that he:
  • Lacked adequate notice of the charges, or
  • Was exposed to a realistic risk of double jeopardy (being prosecuted again for the same conduct).
• Because any variance did not prejudice his substantial rights, his variance challenge failed.

B. Sentencing / Drug Quantity and Invited Error

• The district court’s drug quantity determination is ordinarily reviewed for clear error, see United States v. Diaz, 951 F.3d 148 (3d Cir. 2020), but here the court never reached that stage.
• Instead, the panel held that Knox’s challenge was barred by the invited error doctrine:
  • Knox himself had argued below that the district court should use the very evidence and methodology he was attacking on appeal.
  • Having affirmatively urged that approach, he could not “on appeal assume a contrary position simply because the decision in retrospect was a tactical mistake,” quoting Lesende v. Borrero, 752 F.3d 324, 337 (3d Cir. 2014).
• Under United States v. Henderson, 64 F.4th 111 (3d Cir. 2023), such invited error is a form of waiver, foreclosing appellate review.

With both arguments rejected, the panel affirmed the judgment in full.

IV. Doctrinal Analysis

A. Standards of Review and the Framework of the Decision

Two standards of review frame the opinion:

1. Plain error review for the variance claim, because Knox did not raise it in the district court.
2. Clear error review for drug quantity calculations in general, but rendered moot here by invited error and waiver.

For plain error, the panel relied on United States v. Vosburgh, 602 F.3d 512 (3d Cir. 2010), and United States v. Stinson, 734 F.3d 180 (3d Cir. 2013), which in turn adopt the Supreme Court’s four‑part formulation in Puckett v. United States, 556 U.S. 129 (2009):

1. There must be an error,
2. The error must be “clear or obvious,”
3. The error must affect the defendant’s substantial rights (usually meaning it affected the outcome), and
4. Even if the first three prongs are satisfied, the court may correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The panel never needed to walk through each prong explicitly because it resolved the variance argument on the third prong: a failure to show prejudice to substantial rights.

B. Variance and Multiple Conspiracies

1. The Governing Law: Perez, Kemp, Daraio, and Others

The Third Circuit drew heavily on its existing variance jurisprudence, especially:

• United States v. Perez, 280 F.3d 318 (3d Cir. 2002)
  Perez sets out the two‑part test for a variance claim:
  1. The defendant must show that the evidence at trial varied from the single conspiracy charged (e.g., by proving multiple conspiracies instead), and
  2. The variance must have prejudiced a substantial right of the defendant.
  Perez also explains that prejudice can manifest through “spillover” of evidence—where evidence concerning one conspiracy unfairly taints the defendant’s conviction for another.
• United States v. Kemp, 500 F.3d 257 (3d Cir. 2007)
  Kemp refines the “spillover” analysis. It warns courts to be alert when incriminating evidence against some defendants, involved in different conspiracies, might improperly influence the jury’s view of another defendant. Yet Kemp held that there was no prejudice when the alleged spillover evidence:
  • Either directly implicated the defendants, or
  • Was independently admissible to establish the charged conspiracy.
  The panel in Knox explicitly follows this approach, emphasizing that the supposed spillover evidence concerned Knox’s own activities.
• United States v. Daraio, 445 F.3d 253 (3d Cir. 2006) and United States v. Schoenhut, 576 F.2d 1010 (3d Cir. 1978)
  These cases define the boundaries of prejudice:
  • No prejudice exists if the indictment sufficiently informs the defendant of the charges so that he can prepare his defense and is not unfairly surprised at trial.
  • No prejudice exists if the variance does not expose the defendant to a genuine risk of double jeopardy (a second prosecution for the same offense).
• United States v. Allinson, 27 F.4th 913 (3d Cir. 2022)
  Allinson reiterates that a conviction will be vacated “only where the discrepancy between the indictment and the proof at trial prejudiced the defendant’s substantial rights.” Knox quotes this standard to underscore that a variance without prejudice is not enough.

Together, these precedents form the doctrinal backbone for rejecting Knox’s variance claim.

2. Knox’s Theory of Multiple Conspiracies

Knox argued that trial evidence revealed three separate conspiracies:

• Knox’s supply relationship with the HDS organization,
• Knox’s separate dealings with informant Gatto (including controlled buys and referrals), and
• Knox’s dealings with “Dej Cuddy,” apparently a non‑HDS purchaser.

From this, he claimed a mismatch between:

• The single conspiracy alleged in the indictment (Knox plus HDS and others, conspiring together to distribute heroin and fentanyl), and
• The multiple conspiracies he said were proved at trial.

This is a classic “hub‑and‑spoke”‑style argument: the defendant is alleged to be a hub interacting separately with multiple others (HDS, Gatto, Dej Cuddy) without necessarily participating in a single integrated agreement among all of them. The panel, however, did not delve into a full hub‑and‑spoke analysis. Instead, it assumed arguendo that a variance might exist and cut directly to the prejudice element.

3. The Prejudice Inquiry: Why the Court Found None

The panel identified three potential forms of prejudice and rejected all of them.

a. “Spillover of Evidence”

Knox’s main theory of prejudice was “spillover”: that evidence relating to his other drug dealings (e.g., with Gatto personally or with Dej Cuddy) unfairly tainted the jury’s evaluation of the HDS conspiracy charge.

The Third Circuit, citing Kemp and Perez, explained that it is concerned with spillover when:

“incriminating evidence against co-defendants who were involved in separate conspiracies affected the jury's consideration of the evidence against the defendant.”

Crucially, the panel held that:

• The challenged evidence “directly implicated [Knox’s] own activities,” and
• At a minimum, that evidence was relevant to proving the conspiracy with HDS—particularly by demonstrating the nature of Knox’s product and his distribution practices.

Under Perez and Kemp, there is no prejudicial spillover when:

• The evidence complained of directly involves the defendant himself, and
• It is probative of the defendant’s role in the charged conspiracy.

That was exactly the case here: the evidence about Knox’s drug sales to Gatto and to Dej Cuddy:

• Showed that Knox was an active fentanyl and heroin distributor,
• Corroborated quantities and pricing, and
• Helped demonstrate his capacity and practices as a supplier to HDS.

Hence, any risk of the jury confusing “separate conspiracies” was not the kind of improper spillover that would justify reversal.

b. Adequate Notice and Ability to Prepare a Defense

Following Daraio and Schoenhut, the panel considered whether Knox had been misled or surprised by the scope of the allegations.

There is no suggestion in the opinion that Knox:

• Was unable to understand the nature of the conspiracy charge, or
• Was blindsided at trial by evidence reasonably encompassed within the conspiracy as charged.

Indeed, the indictment’s charge of conspiracy “with his codefendants and unnamed individuals” to distribute heroin and fentanyl was broad enough to encompass the kind of supplier‑level and distribution evidence presented at trial.

c. Double Jeopardy Concerns

Finally, the panel examined whether any variance could expose Knox to a second prosecution for the same offense. Under Daraio and Schoenhut, a variance is non‑prejudicial if it does not realistically risk double jeopardy.

The opinion notes that Knox did not argue—much less demonstrate—that the alleged variance created such a danger. Properly construed, the indictment and trial record would protect him from re‑prosecution for the same conspiracy conduct.

With no showing of prejudice from spillover, from lack of notice, or from double‑jeopardy risk, the court concluded that Knox failed the second prong of the Perez variance test. Under Allinson, that failure alone required rejecting the variance claim.

C. Sentencing and the Invited Error Doctrine

1. Drug Quantity Determinations and Diaz

Ordinarily, drug quantity determinations at sentencing are reviewed for clear error. The Third Circuit reaffirmed this in citing United States v. Diaz, 951 F.3d 148, 159 (3d Cir. 2020).

In practice, “clear error” is a highly deferential standard: the appellate court overturns the district court’s finding only if left with a “definite and firm conviction” that a mistake has been made. Sentencing courts may rely on a range of evidentiary sources, including trial evidence, presentence reports, and even hearsay, so long as they have “sufficient indicia of reliability.”

In Knox, however, the court never reached the substance of the drug quantity calculation because of the invited error doctrine.

2. Invited Error as Waiver: Henderson and Lesende

The panel relied on:

• United States v. Henderson, 64 F.4th 111 (3d Cir. 2023)
  Henderson explains that a party “may not complain on appeal of errors that he himself invited or provoked or caused the court or the opposite party to commit.” Such arguments are treated as waived—they are not just forfeited (failing to object), but deliberately surrendered.
• Lesende v. Borrero, 752 F.3d 324 (3d Cir. 2014)
  Lesende holds that a litigant who successfully urged a particular ruling in the district court cannot later “assume a contrary position simply because the decision in retrospect was a tactical mistake.”

Combining these principles, the panel concluded that:

• Knox had urged the district court to rely on the very evidence and approach he later attacked on appeal.
• By doing so, he invited any alleged error and waived his right to complain about it.

This is important: invited error is not subject to plain error review. Once a defendant has invited the alleged mistake, there is no “error” in the sense cognizable on appeal—the party has instead made a binding tactical choice.

Thus, the panel did not analyze whether the district court’s quantity finding was supported by the evidence. It instead held that Knox had “no standing” to challenge the methodology he himself pressed upon the court.

V. Impact and Practical Implications

A. Variance Claims in Conspiracy Cases

This opinion, though non‑precedential, reinforces several practical points:

1. Prejudice is indispensable.
   Alleging that the government “proved multiple conspiracies” when the indictment charges only one is not enough. A successful variance claim requires:
   • Demonstrating that the variance actually occurred, and
   • Showing concrete prejudice—typically via spillover, lack of notice, or double‑jeopardy risk.
2. Evidence of other drug transactions will often be admissible and non‑prejudicial.
   When a defendant’s other sales:
   • Directly involve him, and
   • Illuminate his role, capacity, or modus operandi in the charged conspiracy,
   courts will treat that evidence as probative rather than prejudicial spillover.
3. Raising variance arguments for the first time on appeal is especially difficult.
   Under Puckett and Vosburgh, plain error review places a heavy burden on the defendant. The Knox opinion illustrates that appellate courts will often short‑circuit such claims at the prejudice prong.

For defense counsel, the message is clear: if you believe the proof at trial is diverging from a single‑conspiracy indictment and morphing into multiple conspiracies, it is critical to:

• Object during trial,
• Seek appropriate limiting instructions or severance, and
• Build a record of concrete prejudice.

B. Invited Error and Sentencing Litigation

On sentencing issues, Knox underscores the high cost of tactical choices:

• If a defendant affirmatively advocates for a particular method of calculating drug quantity (or any other guideline factor), he may be foreclosed from challenging that method on appeal—even if the resulting sentence is severe.
• This goes beyond a mere failure to object. It is a deliberate choice that transforms arguments into waived issues outside the court’s review.

Strategically, counsel must therefore balance:

• The short‑term benefit of winning a particular methodological dispute at sentencing, against
• The long‑term cost of eliminating appellate review if the chosen method proves more harmful than anticipated.

C. Non‑precedential but Persuasive Value

Under the Third Circuit’s I.O.P. 5.7, this disposition is not binding precedent. Still, it is likely to be cited for its:

• Application of well‑established variance principles (Perez, Kemp, Daraio, Allinson),
• Reaffirmation of the demanding nature of plain error review in unpreserved variance claims, and
• Clear statement on invited error as a form of waiver barring appellate review (Henderson, Lesende).

VI. Complex Concepts Simplified

A. Conspiracy and Multiple Conspiracies

A conspiracy is an agreement between two or more persons to commit a criminal offense, plus (in most federal statutes) some overt act in furtherance of that agreement.

In “single conspiracy” cases, the government alleges that the defendant joined one overarching agreement, even if many people and transactions are involved. A “multiple conspiracies” claim argues that the evidence actually shows several distinct agreements, not one unified scheme.

B. Variance vs. Constructive Amendment

A variance occurs when the proof at trial diverges from—but does not change—the charge in the indictment. It can be harmless if it does not prejudice the defendant.

A constructive amendment is more serious. It effectively alters the indictment’s terms by broadening or changing the offense charged, such that the defendant may be convicted of a crime not actually found by the grand jury. Constructive amendments often require reversal without a showing of prejudice.

Knox raised a variance claim, not a constructive amendment claim, and the court focused on whether he showed prejudice.

C. “Spillover” Evidence

“Spillover” refers to the danger that evidence admissible against one defendant (or for one conspiracy) unfairly influences the jury against another defendant (or for another conspiracy) to whom the evidence does not properly relate.

Courts are especially concerned with spillover in multi‑defendant conspiracy trials. However, as Perez, Kemp, and Knox illustrate, there is no improper spillover where:

• The evidence directly implicates the complaining defendant, and
• It is relevant to proving the charged conspiracy or crime.

D. Plain Error Review

When a defendant fails to raise an issue in the district court, the appellate court applies “plain error” review. The defendant must show:

1. Error,
2. Clear or obvious error,
3. That the error affected his substantial rights (often meaning it affected the outcome), and
4. That the error seriously affected the fairness, integrity, or public reputation of the proceedings.

This is a demanding standard and rarely satisfied. In Knox, the variance claim failed at the third prong—no showing that any assumed error affected his substantial rights.

E. Invited Error and Waiver vs. Forfeiture

Forfeiture is the failure to make a timely assertion of a right (e.g., failing to object). Forfeited claims may still be reviewed for plain error.

Waiver is the intentional relinquishment or abandonment of a known right (e.g., explicitly agreeing to a procedure or standard). Waived claims are generally not reviewable at all.

Invited error is a species of waiver: when a party actively urges the court to act in a certain way and the court does so, the party cannot later challenge that action as error. Knox’s sentencing claim fell into this category.

F. Drug Quantity and Base Offense Level

Under the U.S. Sentencing Guidelines, drug offenses are assigned a base offense level primarily according to the quantity and type of controlled substance. The greater the quantity, the higher the base offense level, and the higher the advisory guideline range.

Determining drug quantity often involves:

• Adding together amounts from multiple transactions,
• Estimating quantities where exact figures are unavailable, and
• Using testimony, documents, and other circumstantial evidence.

The district court’s conclusion that Knox was responsible for at least 280 grams but less than 400 grams of fentanyl placed him in a specific high‑level guideline range, driving his 293‑month sentence. His inability to challenge that calculation on appeal, because of invited error, had significant practical consequences.

VII. Conclusion

United States v. Knox is doctrinally modest but practically important. It does not create new law; instead, it strongly reaffirms existing Third Circuit and Supreme Court principles in two areas central to federal criminal practice:

• Variance in conspiracy cases: A defendant must do more than label the government’s case a “multiple conspiracy” proof. He must show specific, concrete prejudice—typically from improper spillover, lack of notice, or double‑jeopardy risk. Absent such prejudice, especially on plain error review, convictions will stand.
• Invited error in sentencing: Defendants cannot reverse‑engineer appellate issues from strategic choices they affirmatively advocated below. When a defendant invites or induces an alleged sentencing error, that issue is waived, not merely forfeited, and the appellate court will not review it.

For practitioners, the opinion underscores two enduring lessons:

1. Preserve variance and evidentiary objections early and build a record of prejudice if you believe proof is diverging from the indictment, and
2. Be cautious in proposing specific sentencing methodologies, recognizing that a short‑term tactical gain can extinguish appellate review if the outcome proves worse than expected.

Even as a non‑precedential decision, Knox provides a concise roadmap of how the Third Circuit applies long‑standing doctrines on variance, prejudice, and invited error, and it will likely be cited as persuasive authority in future cases raising similar issues.