UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 03-4329
NESTOR CAMPOS-ALONZO, a/k/a
Roberto Martinez Vega,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-02-281-1)
Submitted: August 28, 2003
Decided: September 12, 2003
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. CAMPOS-ALONZO
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Nestor Campos-Alonzo pled guilty to possession of a firearm by an
illegal alien, 18 U.S.C. § 922(g)(5) (2000) (Count One), and reentry
by a deported alien previously convicted of an aggravated felony, 8
U.S.C. § 1326(a), (b)(2) (2000) (Count Two), and was sentenced to
a term of 140 months imprisonment. Campos-Alonzo challenges the
district court’s determination of his base offense level under U.S. Sen-
tencing Guidelines Manual § 2K2.1(a)(2) (2002), arguing that the dis-
trict court failed to conduct an analysis of his two prior felony drug
offenses that complied with United States v. Breckenridge, 93 F.3d
132 (4th Cir. 1996). We affirm.
Guideline section 2K2.4(a)(2) provides an enhanced base offense
level of 24 for a defendant convicted of a federal firearm offense who
has two prior felony convictions for either a crime of violence or a
controlled substance offense. Campos-Alonzo had been convicted in
1997 of two felony drug offenses. The first resulted from a search
warrant executed at his home in North Garden, Albemarle County,
Virginia, on October 30, 1997, during which cocaine, marijuana, and
three firearms were seized by investigators of the Jefferson Area Drug
Task Force. An arrest warrant was issued for Campos-Alonzo and, on
November 28, 1997, investigators received information that he would
be conducting a drug transaction at an intersection on Route 29 in
Nelson County, Virginia. Campos-Alonzo was arrested there with
several other persons and gave as his residence an address in Dan-
ville, Virginia. He was prosecuted separately in each county, pleading
guilty in Albemarle County to "felony distribute cocaine," and in Nel-
son County to a felony cocaine charge, a misdemeanor marijuana
charge, and a firearms offense. The Nelson County sentence was
imposed three months after the Albemarle County sentence and was
made concurrent with it. After serving his active sentence, Campos-
Alonzo was deported to Mexico in July 2000. He returned a few
UNITED STATES v. CAMPOS-ALONZO 3
months later to live with his family in Danville, Virginia. Campos-
Alonzo was arrested in North Carolina in July 2002 in possession of
crack cocaine and a firearm, which resulted in his prosecution for the
instant offenses.
To calculate Campos-Alonzo’s guideline range, the probation offi-
cer placed each count in a separate group and, for Count One, recom-
mended a base offense level of 24 under USSG § 2K2.1(a)(2).
Campos-Alonzo objected that the predicate offenses (listed in ¶ 44
and ¶ 45 of the presentence report) were "related cases" which should
be counted as one offense for criminal history purposes under USSG
§ 4A1.2, comment. (n.3) because they were part of a common scheme
or plan and would have been consolidated for trial and sentencing but
for an "accident of geography," i.e., that the offenses occurred in dif-
ferent counties. See United States v. Breckenridge, 93 F.3d 132 (4th
Cir. 1996) (setting out test for determining whether prior offenses are
related under § 4A1.2 as part of a common scheme or plan).
Application Note 5 to § 2K2.1 provides that the guideline uses the
definition of "controlled substance offense" that is given in § 4B1.2
(Definitions of Terms Used in § 4B1.1). Application Note 3 to
§ 4B1.2 provides that the provisions of § 4A1.2 are applicable to the
counting of convictions under § 4B1.1. "Related cases" are defined in
Application Note 3 to § 4A1.2 as those resulting from "offenses that
(A) occurred on the same occasion, (B) were part of a single common
scheme or plan, or (C) were consolidated for trial or sentencing."
Convictions in "related cases" are treated as one prior offense in
determining both criminal history points and career offender status. In
the context of § 2K2.1, prior offenses in related cases are considered
as one offense in determining whether the enhanced base offense
level in subsection (a)(2) should apply.
Campos-Alonzo argued in his sentencing memorandum that his
1997 drug offenses were part of a common scheme or plan because
(1) they occurred within a short period of time, i.e., the second one
occurred one month after the search warrant was executed at his
house in North Garden, (2) both involved cocaine, marijuana, and
firearms, (3) both were investigated by the same detective of the Jef-
ferson Area Drug Task Force, and (4) the two offenses would have
4 UNITED STATES v. CAMPOS-ALONZO
been consolidated but for the "accident of geography" that they were
committed in different counties.
The district court held that the October 30 and November 28 drug
offenses were not part of a common scheme or plan because they
involved "different drugs and different firearms," and were "commit-
ted in different counties at a different time, 29 days apart." The court
noted that it did not know how the cases would have proceeded in
state court had they been committed in the same county. The court
adopted the guideline calculation recommended in the presentence
report and imposed a sentence of 120 months (the statutory maxi-
mum) for Count One and a concurrent sentence of 140 months (the
minimum under the guideline range) for Count Two.
Campos-Alonzo argues on appeal that the district court failed to
apply the Breckenridge test when it determined that his prior drug
offenses were not related. The relevant factors for determining
whether prior offenses were part of a common scheme or plan are:
whether (1) the crimes were committed within a short period of time,
(2) in close geographic proximity, (3) involved the same substantive
offense, (4) were directed at a common victim, (5) were solved during
the course of a single criminal investigation, (6) shared a similar
modus operandi, (7) were animated by the same motive, and (8) were
tried and sentenced separately only because of an accident of geogra-
phy. Breckenridge, 93 F.3d at 138. Not all the factors must be present
for a finding of a common scheme or plan. Id. Temporal and geo-
graphic proximity are significant, but not determinative. Id. The same
is true of a common motive or a single police investigation, unless the
investigation targeted the defendant. Id. The fact that the defendant
received concurrent sentences does not make separate offenses
related, but the fact that the offenses were substantively similar may
be significant.
The district court did not address each factor set out in Brecken-
ridge, but mentioned those it found to be most significant: the lack of
geographical and temporal proximity and the fact that it could not be
certain whether the cases would have been consolidated in state court
had they occurred in the same county. Implicit in the court’s findings
is its belief that Campos-Alonzo had not met the test set out in Breck-
enridge. We conclude that the court’s findings were adequate. United
UNITED STATES v. CAMPOS-ALONZO 5
States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) ("A court need not
engage in ritualistic incantation in order to establish its consideration
of a legal issue. It is sufficient if . . . the district court rules on issues
that have been fully presented for determination. Consideration is
implicit in the court’s ultimate ruling.").
Moreover, the defendant has the burden of proving the existence of
a common scheme. United States v. Joy, 192 F.3d 761, 771 (7th Cir.
1999); United States v. Cowart, 90 F.3d 154, 159 (6th Cir. 1996). The
district court’s determination as to whether prior offenses were part
of a common scheme or plan is reviewed for clear error. United States
v. Rivers, 929 F.2d 136, 140 (4th Cir. 1991). While this is a close
case, we conclude that Campos-Alonzo failed to meet his burden.
More information about Campos-Alonzo’s prior drug activity would
have assisted the district court, but because none was forthcoming the
court was limited to what could be gleaned from the search warrant
and arrest warrant submitted by defense counsel.
A number of the relevant factors support the district court’s finding
that Campos-Alonzo failed to show a common scheme or plan. First,
although the term "short period of time" has not been defined, we are
satisfied that the district court did not clearly err in finding that
Campos-Alonzo’s two drug offenses, separated by twenty-nine days,
were not committed within a short period of time. In Breckenridge,
the defendant averaged more than one burglary per week. See 93 F.3d
at 134, 138 (six burglaries committed within one month were commit-
ted in a short period of time). Similarly, "close geographic proximity"
may be interpreted in various ways. However, Campos-Alonzo’s two
offenses were not committed across the street from each other (as was
more or less the case in Breckenridge, see 93 F.3d at 134-35 & n.2),
but at least thirteen miles apart. We cannot say that district court
clearly erred in finding that this did not amount to close geographical
proximity.
Lacking specific information about the offenses, the court did not
make a finding on whether they involved a similar modus operandi.
Notably, Campos-Alonzo did not offer any information or argument
on this point in his sentencing memorandum or at sentencing. We are
thus reluctant to say that this factor weighs in his favor. The court also
did not decide whether both offenses were committed for the same
6 UNITED STATES v. CAMPOS-ALONZO
motive, which Campos-Alonzo identified as "profit" in his sentencing
memorandum. Because profit is almost always the motive for drug
crimes, this factor also does not weigh in favor of finding a common
scheme or plan in the absence of other evidence linking the two
offenses.
Finally, on the information available at sentencing, it was not pos-
sible for the court to determine whether, had the two offenses been
committed in the same county, they would have been consolidated for
trial or sentencing. See Breckenridge, 93 F.3d at 137-38 (under Vir-
ginia law, offenses may be charged together only if they were con-
nected or constituted parts of a common scheme or plan, i.e., (1) the
offenses were intimately connected or (2) the relationship between the
offenses was dependent on the existence of a plan that tied the
offenses together and demonstrated that the objective of each offense
was to contribute to the achievement of a goal not attainable by the
commission of any of the individual offenses) (internal quotations and
citations omitted). Because Campos-Alonzo provided no information
to assist the district court in deciding this question, we cannot con-
clude that it aids his argument.
Other factors do support Campos-Alonzo’s argument. The offenses
involved the same substantive offense, were directed at a common
victim: society, see, e.g., United States v. Cordo, 324 F.3d 223, 229
(3d Cir. 2003), and were solved as the result of a single investigation.
However, on balance, we are convinced that the district court’s fac-
tual finding that the two offenses were not part of a common scheme
or plan was not clearly erroneous. Consequently, the district court
properly applied a base offense level of 24 under § 2K2.1(a)(2).
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED