United States v. Wall

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-50838
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ABRAHAM P WALL
Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
July 8, 1999
Before KING, Chief Judge, and SMITH and BARKSDALE, Circuit
Judges.

KING, Chief Judge:

Defendant-appellant Abraham P. Wall challenges the sentence

imposed by the district court after he pleaded guilty to

possessing marijuana with intent to distribute in violation of 21

U.S.C. § 841(a)(1). The issue for our decision is whether, for

purposes of sentencing Wall, the district court properly included

certain incidents as relevant conduct pursuant to United States

Sentencing Guideline § 1B1.3(a)(2). We affirm Wall’s conviction

but vacate his sentence, and remand for resentencing.
 I. FACTUAL AND PROCEDURAL HISTORY

On March 20, 1997, defendant-appellant Abraham P. Wall was

indicted on six counts relating to three marijuana seizures.

Specifically, count one charged Wall with possessing marijuana

with intent to distribute on April 30, 1992 in violation of 21

U.S.C. § 841(a)(1). The remaining counts—including conspiracy to

import marijuana with intent to distribute in violation of 21

U.S.C. § 846 (count two), importation of marijuana from Mexico

into the United States in violation of 21 U.S.C. §§ 952(a) and

960(a)(1) (counts three and five), and possession with intent to

distribute marijuana in violation of 21 U.S.C. § 841(a)(1)

(counts four and six)—stemmed from seizures of marijuana from a

former girlfriend of Wall’s, Margaret Friesen, in April 1996 and

March 1997.

The three incidents underlying the indictment include the

following:

In April 1992, Wall was arrested near the United States

Border Patrol checkpoint at Sierra Blanca, Texas in possession of

approximately 0.1 kilograms of marijuana.1

1
The parties dispute the actual amount seized. The
government argues that the amount was five pounds, while Wall
contends that the amount was 0.1 kilograms, or approximately four
ounces. For our purposes, the actual amount is irrelevant. We
use the 0.l kilograms figure, however, because that is the figure
used to calculate Wall’s sentence in Wall’s presentence report,
which was adopted by the district court prior to imposing
sentence.
We note that shortly after Wall’s 1992 arrest, Wall pleaded
guilty in state court to unlawful possession of marijuana and

2
 Four years later, in April 1996, police stopped Friesen for

a traffic violation in Arkansas and discovered 58 kilograms of

marijuana in the tires of the pick-up truck she was driving (the

1996 offense).2 Two days earlier, the truck had crossed into the

United States from Mexico at the Bridge of the Americas. Friesen

and Wall were co-owners of the truck. Friesen subsequently

pleaded guilty to possession of a controlled substance with

intent to sell or deliver, and received a sentence of ten years

of probation.

In March 1997, Friesen was arrested at the Presidio, Texas

port of entry after the Border Patrol discovered 20.8 kilograms

of marijuana in the gas tank of the pick-up truck she was driving

(the 1997 offense). Friesen had recently purchased the truck in

Kansas from Isaac Reimer using money given to her by Wall.

According to Friesen, she then drove the truck to Mexico where

Wall borrowed it for several hours. Friesen claimed to have no

knowledge of the marijuana concealed in the truck, and told the

arresting officers that she suspected Wall of hiding the

marijuana without her knowledge. Friesen later received a

received a sentence of four years of probation.
2
Friesen was traveling with a couple and their two
children.

3
sentence of thirty-six months of imprisonment in connection with

this incident.3

Pursuant to a plea agreement, on May 22, 1998, Wall pleaded

guilty to count one, the charge pertaining to the April 1992

seizure of marijuana, and the government dismissed the remaining

five counts. Wall’s presentence report (PSR) recommended that

the conduct underlying the dismissed counts be included as

relevant conduct for purposes of determining the range of Wall’s

sentence under the United States Sentencing Guidelines (the

guidelines or U.S.S.G.).4

The probation officer calculated Wall’s base offense level

by adding the amounts seized from Friesen at the time of her

arrests in April 1996 (58 kilograms) and March 1997 (20.8

kilograms) to the amount seized from Wall at the time of his

April 1992 arrest (0.1 kilograms). Thus, the amount of marijuana

attributed to Wall totaled 78.9 kilograms, and Wall’s

corresponding base offense level was twenty-two. The PSR further

recommended a two-level increase for Wall’s role as an organizer,

3
Her sentence was imposed by the same district court that
sentenced Wall.
4
In addition to the three incidents described above,
Wall’s PSR also described an incident in which $6000 was seized
from Wall and Friesen in Kansas after a traffic stop in early
1996. A drug-detecting canine alerted to the presence of
narcotics on the money. Wall and Friesen did not contest the
seizure, and the money was later forfeited. This incident did
not increase Wall’s base offense level, although the district
court did mention it at Wall’s sentencing hearing.

4
leader, manager, or supervisor of criminal activity, pursuant to

U.S.S.G. § 3B1.1(c), and a three-level decrease for Wall’s

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and

(b)—resulting in a total offense level of twenty-one and a

guidelines range of thirty-seven to forty-six months of

imprisonment.

Wall filed written objections to his PSR’s inclusion of the

1996 and 1997 offenses as relevant conduct, and also objected in

front of the district court at both of his sentencing hearings.

He argued that the district court should consider only the amount

of marijuana underlying the count to which Wall pleaded guilty,

the 0.1 kilograms seized from Wall in April 1992, which would

result in a base offense level of six and a guidelines range of

up to six months of imprisonment.

Wall’s first sentencing hearing occurred on July 21, 1998.

After hearing argument concerning the relevant conduct issue, the

district court postponed sentencing until it could hear testimony

from Friesen concerning the 1996 and 1997 offenses. At Wall’s

second sentencing hearing, on August 4, 1998, Wall renewed his

objection to the inclusion of the 1996 and 1997 offenses as

relevant conduct. The district court overruled Wall’s objections

after hearing Friesen’s testimony, and adopted the findings of

the PSR. In reaching its conclusion, the district court made the

following findings:

5
 I find that the conduct outlined by Ms. Freison is
believable. Her testimony was credible. I think the 1992
plea that Mr. Wall made was for marijuana. That marijuana
came from Mexico. In subsequent years—two or three years
later, marijuana is coming where from, Mexico. Who’s
originating this marijuana? Mr. Wall. It’s been
transported in vehicles across the Rio Grande River for
distribution from Mexico. I find that Mr. Wall was the
organizer; that he was instrumental in Ms. Freison becoming
involved in carrying drugs; that there was relevant conduct
at the time that Mr. Wall and Ms. Freison, who at that time
was going by Mrs. Wall, were picked up in Kansas; that the
$6,000 that she described was, in my opinion, proceeds from
the sale of a controlled substance.

Evidently, Mr. Wall agreed with this. There was no
quarrel with him about the forfeiture of that money. I find
that the time that Ms. Freison was arrested in Arkansas was
because of that relevant conduct by Mr. Wall in sending her
with this load of marijuana into Arkansas and that the money
that she had was forfeited. The dope she had that was
forfeited up there, she paid for that by pleading guilty to
an offense for which she received probation.

I also find that in connection with her conviction
where she received a total of 36 months, that that
marijuana, also, was attributable to—it was in a pickup that
had been delivered to Mexico by Ms. Freison at the behest of
Mr. Wall. . . .

Insofar as the time is concerned, Mr. Freison [sic] did
plead guilty to a 1992 offense. . . . By the same taken
[sic], he’s charged with other offenses in there. And in
looking at the big picture, I don’t think the statute of
limitations governs this deal at all. The Fifth Circuit has
held that relevant conduct is not guided by or controlled by
the statute of limitations. I find that the correct total
offense level in this case is a 21, a criminal history
category of one.

Based on a total offense level of twenty-one and a criminal

history category of I, the district court sentenced Wall to

forty-six months of imprisonment and three years of supervised

release, and also imposed a $100 special assessment. Wall filed

his timely notice of appeal on August 11, 1998.

6
 II. STANDARD OF REVIEW

We review a district court’s interpretation of the

guidelines de novo, and its factual findings for clear error.

See United States v. Peterson, 101 F.3d 375, 384 (5th Cir. 1996);

United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994). A

district court’s determination of what constitutes relevant

conduct for purposes of sentencing is reviewed for clear error.

See Peterson, 101 F.3d at 384; United States v. Bryant, 991 F.2d

171, 177 (5th Cir. 1993).

III. DISCUSSION

A defendant convicted of a drug offense is sentenced based

on the amount of drugs involved in the offense. See U.S.

SENTENCING GUIDELINES MANUAL § 2D1.1 (1998). The guidelines provide

that in calculating the offense level the district court may

consider other offenses in addition to the acts underlying the

offense of conviction so long as those offenses constitute

relevant conduct as defined in the guidelines. See id. § 1B1.3.

As we have recognized, “the base offense level can reflect

quantities of drugs not specified in the count of conviction if

they were part of the same course of conduct or part of a common

scheme or plan as the count of conviction.” United States v.

Moore, 927 F.2d 825, 827 (5th Cir. 1991) (internal quotation

marks omitted). The defendant need not have been convicted of

7
the other offenses before they may be considered relevant

conduct. See id.

The guidelines define “relevant conduct” to include “all

acts and omissions . . . that were part of the same course of

conduct or common scheme or plan as the offense of conviction.”

U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a)(2). “Common scheme or

plan” is defined as two or more offenses that are “substantially

connected to each other by at least one common factor, such as

common victims, common accomplices, common purpose, or similar

modus operandi.” Id. § 1B1.3 application note 9(A). “Same

course of conduct” is defined as follows: “Offenses that do not

qualify as part of a common scheme or plan may nonetheless

qualify as part of the same course of conduct if they are

sufficiently connected or related to each other as to warrant the

conclusion that they are part of a single episode, spree, or

ongoing series of offenses.” Id. § 1B1.3 application note 9(B).

Factors to consider in making this determination include “the

degree of similarity of the offenses, the regularity

(repetitions) of the offenses, and the time interval between the

offenses.” Id. “When one of the above factors is absent, a

stronger presence of at least one of the other factors is

required.”5 Id.

5
The application note thereafter provides: “For example,
where the conduct alleged to be relevant is relatively remote to
the offense of conviction, a stronger showing of similarity or
regularity is necessary to compensate for the absence of temporal

8
 Wall argues that the district court erred in calculating his

offense level by considering the 1996 and 1997 offenses as

relevant conduct. According to Wall, the 1996 and 1997 offenses

were not part of the same common scheme or plan as the 1992

offense to which he pleaded guilty because the two sets of

offenses lacked common accomplices, common purposes, and similar

modus operandi. Wall further contends that the 1996 and 1997

offenses were not part of the same course of conduct as the 1992

offense because the later offenses were temporally remote from

the 1992 offense, were not similar to the 1992 offense, and did

not evince a pattern of regularity.

We agree that the 1996 and 1997 offenses were not part of

the same “common scheme or plan” as the 1992 offense. Id.

application note 9(A); see United States v. Hill, 79 F.3d 1477,

1482 (6th Cir. 1996) (noting that several courts have found that

a “‘common scheme or plan’ requires that acts ‘be connected

together by common participants or by an overall scheme’ whereas

the ‘same course of conduct’ concept looks to ‘whether the

defendant repeats the same type of criminal activity over time’”)

(quoting United States v. Silkowski, 32 F.3d 682, 687 (2d Cir.

1994) (further citations omitted)). Although the offenses

arguably shared the common general purpose of importing marijuana

for distribution in the United States, because Friesen testified

proximity.” Id.

9
that she did not meet Wall until 1995, the offenses did not share

similar accomplices. Moreover, there is insufficient evidence of

a distinctive modus operandi connecting the later offenses, which

involved large quantities of marijuana concealed in pick-up

trucks, to the 1992 offense, which involved a relatively small

amount of marijuana secreted in Wall’s car.

Thus, we must examine whether the 1996 and 1997 offenses can

be considered part of the “same course of conduct” as the 1992

offense. U.S. SENTENCING GUIDELINES MANUAL § 1B1.3 application note

9(B). As described above, this depends on “the degree of

similarity of the offenses, the regularity (repetitions) of the

offenses, and the time interval between the offenses.” Id.

The time interval between the 1992 offense and the 1996 and

1997 offenses is considerable. No evidence in the record

indicates that Wall continued his drug activities between his

1992 arrest and the offenses involving Friesen which began in

early 1996. Cf. Moore, 927 F.2d at 828 (finding that intervening

arrest for marijuana possession helped connect defendant’s

earlier drug activity to his offense of conviction such that the

earlier drug activity could be considered relevant conduct).

Although “[t]here is no separate statute of limitations beyond

which relevant conduct suddenly becomes irrelevant,” id., we find

that the incidents in the instant case are separated by an

unprecedented lapse of time for a case involving drug

distribution. Cf. United States v. Powell, 124 F.3d 655, 666

10
(5th Cir. 1997) (finding that defendant’s state tax evasion

satisfied the element of temporal proximity for purposes of

including it as relevant conduct because it occurred during the

same period of time as the federal tax evasion for which

defendant was convicted), cert. denied, 118 S. Ct. 1082 (1998);

Bryant, 991 F.2d at 177 (finding temporal proximity of

approximately two months helped support district court’s relevant

conduct finding in drug distribution case); United States v.

Bethley, 973 F.2d 396, 400-01 (5th Cir. 1992) (finding that

cocaine distribution activity that occurred monthly for the six

months preceding the offense of conviction could be considered

relevant conduct); Moore, 927 F.2d at 826, 828 (finding that

amphetamine seized five months prior to offense of conviction

could be considered relevant conduct). Various courts have found

that a period of separation of over one year negated or weighed

against the temporal proximity of the offenses. See Hill, 79

F.3d at 1484; United States v. Maxwell, 34 F.3d 1006, 1011 (11th

Cir. 1994). We conclude that temporal proximity is lacking in

this case.

Where the temporal proximity of the offenses is nonexistent,

the other factors must be stronger. See U.S. SENTENCING GUIDELINES

MANUAL § 1B1.3 application note 9(B) (“[W]here the conduct alleged

to be relevant is relatively remote to the offense of conviction,

a stronger showing of similarity or regularity is necessary to

compensate for the absence of temporal proximity.”). We must

11
therefore consider “‘whether there are distinctive similarities

between the offense of conviction and the remote conduct that

signal that they are part of a single course of conduct rather

than isolated, unrelated events that happen only to be similar in

kind.’” Maxwell, 34 F.3d at 1011 (quoting United States v.

Sykes, 7 F.3d 1331, 1336 (7th Cir. 1993)).

We conclude that there are significant differences between

the 1992 offense and the 1996 and 1997 offenses. Notably, there

is no evidence that the marijuana that formed the basis for the

1996 and 1997 offenses shared a common source, supplier, or

destination with the marijuana involved in the 1992 offense. Cf.

United States v. Jackson, 161 F.3d 24, 29 (D.C. Cir. 1998)

(finding that similarity of the offenses justified earlier

offense’s inclusion as relevant conduct where both offenses

involved large amount of drugs, were brokered by the same person,

and involved a common source). Moreover, while the 1996 and 1997

offenses are arguably similar to each other, their modus operandi

differs from that of the 1992 offense. The 1996 and 1997

offenses involved large loads of marijuana secreted in the wheels

and gas tank of two pick-up trucks driven across the border by

Friesen. In contrast, there is no evidence in the record of

where the much smaller 1992 load was hidden in Wall’s car.

Furthermore, while Friesen was involved in the 1996 and 1997

offenses, nothing indicates that Wall had accomplices in 1992.

12
Friesen herself could not have been a participant, having only

met Wall in 1995.

In short, the two sets of offenses do not share many

similarities other than that they both involved marijuana.6 As

the Eleventh Circuit has stated,

We do not think that two offenses constitute a single course
of conduct simply because they both involve drug
distribution. To so conclude would be, in the words of the
Fourth Circuit,

to describe [the defendant’s] conduct at such a level
of generality as to eviscerate the evaluation of
whether uncharged criminal activity is part of the
“same course of conduct or common scheme or plan” as
the offense of conviction. With a brushstroke that
broad, almost any uncharged criminal activity can be
painted as similar in at least one respect to the
charged criminal conduct.

Maxwell, 34 F.3d at 1011 (quoting United States v. Mullins, 971

F.2d 1138, 1145 (4th Cir. 1992)); see also Hill, 79 F.3d at 1484

(stating that where two drug transactions are separated by more

than one year, a relevant conduct finding generally may not be

premised on the sole similarity that the transactions involved

the same drug).

Both parties cite United States v. Jackson, 161 F.3d 24

(D.C. Cir. 1998), in support of their respective positions. In

Jackson, the court found that a 1992 drug transaction properly

constituted relevant conduct within the meaning of U.S.S.G.

6
Nor is there a pattern of regularity in light of the
lengthy separation between the 1992 offense and the 1996 and 1997
offenses and the lack of evidence of any illicit conduct between
the two.

13
§ 1B1.3(a)(2) for purposes of sentencing the defendant for a

similar 1996 drug transaction. See id. at 30. The court

reasoned that although both the temporal and regularity prongs

were weak, the strength of the similarity prong justified the

inclusion of the 1992 offense as relevant conduct. See id. at

29-30.7 The court distinguished several cases—in which other

courts had held that an earlier offense separated by a lengthy

time interval from the offense of conviction was not part of the

same course of conduct—on the ground that the similarity of the

offenses in those cases was weaker than in the case before it.

See id. at 29 (citing United States v. Fermin, 32 F.3d 674, 681

(2d Cir. 1994); United States v. Mullins, 971 F.2d 1138 (4th Cir.

1992); United States v. Kappes, 936 F.2d 227, 231 (6th Cir.

1991)). Although the court conceded that a “four-year time

interval makes the temporal factor weak, and in many cases might

be difficult for another factor to outweigh,” ultimately it

concluded that the similarity between the offenses justified the

relevant conduct finding in that case. Id. at 30. The court

7
The court described the similarity of the offenses as
follows:

Here the “degree of similarity” between the 1992 and 1996
deals is strong. Each was brokered by Rayful Edmond; each
involved, either actually or in Jackson’s perception, a
transaction between Jackson and the Trujillo-Blancos; each
involved a meeting with an intermediary in the United
States; and each involved the transfer of large quantities
of cocaine.

Id. at 29.

14
noted, however, that “[a] ‘course of conduct’ is not a limitless

concept, and the limits are approached in this case.” Id.

In the case at bar, the limits have been exceeded. The

temporal distance between the offenses, the lack of regularity,

and the weak similarities between the offense of conviction and

the later offenses compel us to conclude that the later offenses

cannot properly be considered as relevant conduct for purposes of

sentencing Wall. We therefore conclude that the district court

clearly erred by including the 1996 and 1997 offenses as relevant

conduct in sentencing Wall for the 1992 offense. Because this

error was not harmless, we vacate Wall’s sentence and remand for

resentencing.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM Wall’s conviction but

VACATE Wall’s sentence and REMAND for resentencing in conformity

with this opinion.

15