United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 29, 1998 Decided October 23, 1998
No. 97-3122
United States of America,
Appellee
v.
Adolph Jackson,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00254-01)
Antoini M. Jones argued the cause and filed the brief for
appellant.
Rachel Carlson Lieber, Assistant United States Attorney,
argued the cause for appellee. With her on the brief were
Wilma A. Lewis, United States Attorney, John R. Fisher,
Mary-Patrice Brown, Richard L. Edwards and Mary B.
Murphy, Assistant United States Attorneys.
Before Edwards, Chief Judge, and Wald and Sentelle,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Adolph Jackson entered a plea of
guilty to one count of Possession with Intent to Distribute
Five Kilograms or More of Cocaine in violation of 21 U.S.C.
s 841(a)(1) and (b)(1)(A)(ii)(II). He appeals from a judgment
imposing a sentence of 132 months. Jackson argues that the
district court improperly concluded that an earlier incident of
uncharged conduct four years before the offense of conviction
was in the same "course of conduct" and was thus appropri-
ately included as "relevant conduct" for the purposes of
determining the base offense level under U.S.S.G. s 1B1.3.
We reject appellant's argument and affirm his sentence.
I. Background
Adolph Jackson was arrested as a result of a reverse sting
operation facilitated by the cooperation of Rayful Edmond.
Edmond, a purported drug lord, had been convicted of vari-
ous federal narcotics offenses in 1990, and received concur-
rent sentences of life without parole. See United States v.
Edmond, 52 F.3d 1080 (D.C. Cir. 1995). While in prison,
Edmond continued his drug activity by using the facility's
visitation and telephone privileges to broker drug transac-
tions between individuals in Colombia and in Washington,
D.C. Edmond's telephone calls from prison were tape re-
corded consistent with Bureau of Prison policy, and in 1994,
federal investigators became aware of his illegal activities and
commenced an investigation. Edmond agreed to plead guilty
to conspiracy to distribute cocaine, and began to cooperate
with the government. He represented to his former contacts
in the illicit drug industry that he had resumed his pattern of
brokering large drug deals between parties in D.C. and in
Colombia, with the government providing the cocaine in
reverse sting operations.
In 1996, Adolph Jackson became the target of one such
reverse sting. Edmond claimed that he had arranged a large
drug transaction between Jackson and the Colombians in
1992. The government planned the sting so that Jackson
would be led to believe that he was transacting with the same
Colombian parties he had in 1992, with Edmond as intermedi-
ary. The sting was successful, and Jackson was arrested on
August 7, 1996. A two-count indictment was filed the next
day, charging him with one count of Conspiracy to Possess
with Intent to Distribute Five Kilograms or More of Cocaine
in violation of 21 U.S.C. ss 846, 841(a)(1) and
841(b)(1)(A)(ii)(II), and one count of Possession with Intent to
Distribute Five Kilograms or More of Cocaine in violation of
21 U.S.C. ss 841(a)(1) and 841(b)(1)(A)(ii)(II). On November
1, 1996, Jackson entered a plea of guilty to the second count
of the indictment.
On April 1 and 2, 1997, the district court held a sentencing
hearing which focused on whether Jackson's alleged 1992
drug transaction would be considered "relevant conduct" for
the purpose of establishing his base offense level under
U.S.S.G. s 1B1.3. The government presented two witnesses
at the hearing, Rayful Edmond and Detective Gonzalez, a
D.C. police officer. Edmond testified regarding the 1992
transaction and its similarity to the feigned 1996 transaction.
He explained that the Colombians with whom he arranged his
transactions from prison were "Chickie" and "Negro"
Trujillo-Blanco, and that a representative of the Colombians
named Memo would typically meet with the D.C. parties in
New York City to complete the transaction. According to
Edmond, he arranged a transaction between defendant and
the Colombians in 1992. Edmond testified that the 1992
transaction involved the purchase of 25 kilograms of powder
cocaine by defendant and his then partner, Marcus Haynes,
who was the subject of a separate reverse sting. Jackson and
Haynes allegedly received the cocaine from Memo in a meet-
ing in New York City in July or August of 1992. Edmond
further testified that while he was not present at the actual
transaction, prior and subsequent conversations with the par-
ties involved confirmed that the transaction had been com-
pleted. According to Edmond, Jackson and Haynes were not
entirely satisfied with Memo as intermediary due to late
changes he had made in the deal. Edmond testified that
shortly after the 1992 transaction, Chickie was killed, and
Negro went into hiding, so that further transactions with
them were not possible at that time. Portions of Edmond's
testimony were supported by recordings of his phone conver-
sations from prison.
Both Edmond and Detective Gonzales testified regarding
the 1996 sting. Edmond explained that he contacted Jackson
in 1996 and led him to believe that contact with Negro had
been reestablished and that there was a new intermediary
with whom a deal could be transacted. Detective Gonzales
was the undercover officer who posed as the "new Memo" in
the 1996 transaction. In his testimony at the sentencing
hearing, Gonzales explained that he structured the 1996
transaction to parallel the 1992 transaction. Gonzales testi-
fied that he met with Jackson in a Newark hotel, and that
Jackson did not seem confused or surprised when Gonzales
mentioned Chickie and Negro during that meeting. The 1996
transaction involved ten kilograms of cocaine.
The district court concluded that the government had es-
tablished that the 1992 transaction was relevant conduct
under U.S.S.G. s 1B1.3. Since the 1992 conduct was deemed
relevant, the defendant was responsible not only for the ten
kilograms involved in the 1996 transaction, but for the
twenty-five kilograms involved in the 1992 transaction. This
increased defendant's base offense level from 32 to 34. After
an adjustment for acceptance of responsibility, the defendant
had an offense level of 31. With a criminal history of 2, this
led to a sentencing range of 121 to 151 months. The judge
imposed a sentence of 132 months, from which Jackson
appeals.
Jackson argues that his alleged 1992 drug transaction
should not have been used to determine his base offense level
under s 1B1.3. He makes two arguments: first, that more
than a simple preponderance should have been required to
establish the 1992 transaction, and second, that the 1992
transaction is too distant in time to be considered part of the
same course of conduct as the 1996 offense.
II. Standard of Proof at Sentencing
The preponderance standard for factual determinations at
sentencing is suggested by the Guidelines themselves, see
U.S.S.G. s 6A1.3 (Policy Statement) commentary. The Su-
preme Court has held that the application of the preponder-
ance standard at sentencing generally satisfies due process.
McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986); United
States v. Watts, 117 S. Ct. 633, 637 (1997). In addition, this
court has consistently stated that only a preponderance is
required for proof of facts at sentencing. For example, in
United States v. Lam Kwong-Wah, 966 F.2d 682 (D.C. Cir.
1992), we held that a preponderance standard was acceptable
regarding a sentencing court's finding of scienter with respect
to the amount of drugs involved in conspiracy or distribution,
even if the amount could have a significant impact on the
length of the sentence. See also United States v. Pinnick, 47
F.3d 434, 437 (D.C. Cir. 1995) (government must establish
acts constituting relevant conduct by a preponderance); Unit-
ed States v. Gottfried, 58 F.3d 648, 652 (D.C. Cir. 1995)
(same). Although appellant argues that the evidence of the
1992 transaction was insufficient to prove the incident by even
a preponderance, we have considered this argument, and find
it to be without merit.
To support his argument that a higher standard of proof
should have been required, appellant cites United States v.
Shonubi, 103 F.3d 1085 (2d Cir. 1997), which held that a more
rigorous standard should be employed where the disputed
conduct will significantly enhance a sentence. As on two
prior occasions on which appellants have raised this same
argument, we find that the facts before us do not involve any
extraordinary circumstances so that we need not determine
whether a higher standard could ever apply. See Lam
Kwong-Wah, 966 F.2d 682, and United States v. Toms, 136
F.3d 176 (D.C. Cir. 1998). Even if a higher standard might
be required where an extremely large difference in sentences
is at stake, this is not such a case. 21 U.S.C.
s 841(b)(1)(A)(ii) provides a ten-year minimum sentence for
the offense on which defendant entered a plea. The 132-
month sentence imposed in this case was only twelve months
more than this ten-year minimum. In contrast, the relevant
conduct determination in Shonubi led to an increase of at
least fifty-four months. See 103 F.3d at 1087. Furthermore,
treating Jackson's 1992 conduct as relevant increased his base
offense level by only two points. A two-point increase was
also at issue in Watts, 117 S. Ct. at 634. There, the Court
acknowledged the divergence of opinion among lower courts
regarding whether relevant conduct which would dramatically
increase the sentence would require a higher standard of
proof. Id. at 637. However, the Court held that there were
no such exceptional circumstances in that case, so that proof
by a preponderance was enough, and the Court had no need
to address whether a higher standard would ever be required.
Id. at 638. We reach an identical conclusion here.
III. The Relevant Conduct Determination
Appellant's argument that the 1992 transaction is too dis-
tant in time to be considered part of the same course of
conduct as the 1996 offense under U.S.S.G. s 1B1.3 is more
troubling. However, applying the law of Guideline sentencing
to the facts of record, we conclude that this argument also
fails.
A.The Course of Conduct Test
U.S.S.G. s 1B1.3 defines "relevant conduct" for determin-
ing an offender's base offense level. Subsection (a)(1) pro-
vides that unless otherwise specified, the base offense level
shall be determined based on acts or omissions occurring
"during the commission of the offense of conviction, in prepa-
ration for that offense, or in the course of attempting to avoid
detection or responsibility for that offense." For certain
specified offenses for which the sentence depends substantial-
ly on quantity, primarily certain property, tax, fraud, and
drug offenses, the Guidelines allow consideration of a broader
range of conduct. See U.S.S.G. s 1B1.3 background note;
United States v. Boney, 977 F.2d 624, 635 (D.C. Cir. 1992)
(conduct relevant to drug offense is "sweepingly defined").
The rationale for allowing consideration of such conduct is
that where quantity is an important consideration, it is impor-
tant to "take into account the full range of related conduct,"
U.S.S.G. s 1B1.3 background note, "regardless of the number
of counts that are alleged or on which a conviction is ob-
tained." Id. Accordingly, subsection 1B1.3(a)(2) provides
that for these specified offenses, relevant conduct includes
acts and omissions "that were part of the same course of
conduct or common scheme or plan as the offense of convic-
tion." Subsection 1B1.3(a)(2) applies only to offenses which
U.S.S.G. s 3D1.2 would require to be grouped for sentencing
purposes. See U.S.S.G. s 1B1.3(a)(2); United States v. Lan-
caster, 968 F.2d 1250, 1257 (D.C. Cir. 1992). The drug
offenses for which appellant was sentenced are among those
specified by s 3D1.2, see U.S.S.G. s 3D1.2 (requiring group-
ing of offenses covered by U.S.S.G. s 2D1.1); U.S.S.G.
s 2D1.1 (covering violations of 21 U.S.C. s 841(a) and (b)(1)),
and are therefore subject to this broader definition of rele-
vant conduct.
The Guideline's application notes address the question of
what constitutes a "course of conduct" or a "common scheme"
within the meaning of U.S.S.G. s 1B1.3(a)(2). Application
note 9(A) provides that "[f]or two or more offenses to consti-
tute part of a common scheme or plan, they must be substan-
tially connected to each other by at least one common factor,
such as common victims, common accomplices, common pur-
pose, or similar modus operandi." U.S.S.G. s 1B1.3 applica-
tion note 9(A). Application note 9(B) provides that offenses
that do not qualify as a common scheme or plan may nonethe-
less be within 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." U.S.S.G. s 1B1.3 application
note 9(B). Factors appropriate to determining whether or
not offenses are part of the same course of conduct include
"the degree of similarity of the offenses, the regularity (repe-
titions) of the offenses, and the time interval between the
offenses." Id. When one of the factors is absent or weak, a
stronger presence of at least one of the other factors is
required. Id.; Pinnick, 47 F.3d at 438. Whether or not
offenses are part of the same course of conduct may depend
on the nature of the offenses. For example, application note
9(B) states that a failure to file tax returns in three consecu-
tive years would be considered a course of conduct, since such
returns are only required at yearly intervals.
The district court in this case concluded that the 1992 and
1996 transactions were part of the same course of conduct.
The court recognized that the four-year interval between the
1992 and 1996 conduct made the time element weak, but
concluded that the strong degree of similarity between the
two drug transactions made them part of a single course of
conduct.
B.Standard of Review
A sentencing court's determination that particular conduct
is relevant to the offense of conviction is in many cases a
factual question that we review for clear error. See, e.g.,
Pinnick, 47 F.3d at 438. However, in this case, the district
court's decision that the 1992 offense was relevant conduct
involved not only a factual question, but an application of
s 1B1.3 to the facts found. Congress has provided that a
district court's application of the Guidelines to the facts must
be given "due deference." 18 U.S.C. s 3742(e). We have
explained this standard of review as "fall[ing] somewhere
between de novo and 'clearly erroneous,' a standard of review
that reflects an apparent congressional desire to compromise
between the need for uniformity in sentencing and the recog-
nition that the district courts should be afforded some flexibil-
ity in applying the guidelines to the facts before them."
United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994),
quoted in United States v. Broumas, 69 F.3d 1178, 1180 (D.C.
Cir. 1995). The deference that is due depends on the nature
of the question presented. Koon v. United States, 518 U.S.
81, 98 (1996). Because the question of whether conduct in a
given case constitutes a "course of conduct" is inherently fact
intensive, we afford due deference in the present case.
C.Analysis
Appellant argues that the four-year time interval between
the 1992 and 1996 transactions renders both the regularity
prong and the temporal prong of the test very weak, and that
similarity alone cannot justify a finding of a course of conduct.
While we have stated that no single factor is dispositive in
determining whether earlier offenses are part of the same
course of conduct, Pinnick, 47 F.3d at 438, we have not
previously considered a situation where a course of conduct
was found primarily on the basis of strength in a single
factor. Similarly, U.S.S.G. s 1B1.3 application note 9(B)
provides that when one factor is absent, a stronger showing in
at least one of the other factors is required, but does not
address situations where two of the factors are absent or
weak.
Traditionally, what conduct to consider in sentencing was
left to the sentencing judge's discretion. Before the imposi-
tion of the Guidelines, it was a recognized principle that " 'a
judge may appropriately conduct an inquiry broad in scope,
largely unlimited either as to the kind of information he may
consider, or the source from which it may come.' " United
States v. Grayson, 438 U.S. 41, 50 (1978) (quoting United
States v. Tucker, 404 U.S. 443, 446 (1972)). The information
considered in pre-Guidelines sentencing sometimes included
unconvicted conduct which was temporally remote. See Unit-
ed States v. Campbell, 684 F.2d 141, 154 (D.C. Cir. 1982)
(upholding sentence based in part on conduct prior to the
statutory limitations period). The Sentencing Reform Act of
1984, as amended, 18 U.S.C. s 3551 et seq., 28 U.S.C. ss 991-
998, channeled the trial judge's discretion, and corresponding-
ly, established more meaningful appellate review. However,
the development of the Guidelines "did not alter a court of
appeals' traditional deference to a district court's exercise of
its sentencing discretion." Koon, 518 U.S. at 97. In enacting
the Sentencing Reform Act, Congress gave no indication that
the sentencing judge was to ignore any information under the
Guidelines regime that previously would have been relevant.
United States v. Wishnefsky, 7 F.3d 254, 256 (D.C. Cir. 1993).
In fact, the Sentencing Reform Act recodified without com-
ment a longstanding statutory provision that "[n]o limitation
shall be placed on the information concerning the back-
ground, character, and conduct of a person convicted of an
offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sen-
tence." 18 U.S.C. s 3661, formerly 18 U.S.C. s 3577. In
light of this, we find no justification for crafting rigid time
limits on the conduct a sentencing judge may consider in
making a course-of-conduct determination.
Congress's failure to impose defined limits on what may
constitute a course of conduct certainly does not mean there
are no limits, only that they must be determined on a case-by-
case basis. While we find nothing in s 1B1.3 which necessar-
ily precludes a district court judge from finding a course of
conduct based primarily on similarity, we must consider
whether it was appropriate to do so in the present case.
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 transac-
tion 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.
However, the four-year interval between the two transactions
makes the time and regularity prongs quite weak.
Previous cases addressing the appropriateness of finding a
course of conduct have not dealt with situations combining
such strong similarity with such a long time interval. A
number of cases involving lengthy time intervals have held
that the earlier offense was not part of the same course of
conduct, but in each of those cases, the similarity was weaker
than in this case. In United States v. Mullins, 971 F.2d 1138
(4th Cir. 1992), the court held that where uncharged insur-
ance fraud was more than six months prior to the wire fraud
which was the offense of conviction, a sufficiently strong
showing of similarity had not been made out to consider the
incidents part of a course of conduct. In United States v.
Kappes, 936 F.2d 227, 231 (6th Cir. 1991), the court concluded
that it was clear error for the district court to find a defen-
dant's obtaining his postal job under false pretenses in 1983
part of the same course of conduct as making false state-
ments on an occupational injury form in 1989. United States
v. Fermin, 32 F.3d 674, 681 (2d Cir. 1994), implicitly over-
ruled on other grounds, Bailey v. United States, 116 S. Ct.
501 (1995), held that drug transactions from 1983 to 1985
were not relevant conduct to a 1990-1991 conspiracy, but
noted that a high degree of similarity had not been estab-
lished. See also United States v. Hill, 79 F.3d 1477, 1484 (6th
Cir. 1996) (holding 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); United States v. Bar-
ton, 949 F.2d 968, 969 (8th Cir. 1991) (suggesting that 1983
conduct was "too distant and dissimilar" to 1989 conduct to be
used in sentencing).
Other cases have found a course of conduct under s 1B1.3
despite a significant lapse of time, but in these cases, the time
and regularity prongs were stronger than in this case. In
United States v. Wishnefsky, 7 F.3d 254 (D.C. Cir. 1993), we
held that where embezzlement occurred continuously from
1980-1990, the entire period constituted one "course of con-
duct" and could be taken into account in setting the base
offense level, even though the statute of limitations had run
on all but the 1987-1990 embezzlement. In United States v.
Moore, 927 F.2d 825, 828 (5th Cir. 1991), the court noted that
"[t]here is no separate statute of limitations beyond which
relevant conduct suddenly becomes irrelevant," but the time
lapse in that case was only seven months, and there was
intervening activity so that the "regularity" prong was not
entirely absent. In United States v. Nunez, 958 F.2d 196
(7th Cir. 1992), the court found that cocaine sales between
1986 and 1988 were relevant conduct to a 1990 offense, but in
this case as well, there was arguably some regularity, in that
there were multiple sales in the earlier period.
The case most similar to this one is Cedano-Rojas, 999
F.2d 1175 (7th Cir. 1993). In that case, the Seventh Circuit
upheld the finding of a course of conduct where there was a
single temporally separate transaction. Defendant Cedano-
Rojas was convicted of one count of possession with intent to
distribute cocaine as a result of an undercover operation.
Cedano-Rojas had bought cocaine from "Rios" in 1987 and
1988. In 1988, Rios' supplier was arrested, and he could not
find a replacement. In 1990, in attempting to get a new
supplier, Rios was arrested and began to cooperate with the
government. He led the defendant to believe he had a new
supplier, and arranged a transaction which led to Cedano-
Rojas' arrest. The offense of conviction occurred in 1990. At
sentencing, the 1987-1988 conduct was treated as part of the
same course of conduct. The Seventh Circuit upheld this
result, noting that "[a] respite is unlikely to be fatal in the
finding of a course of conduct if the interruption was not the
choice of the players." Id. at 1180.
While the facts of Cedano-Rojas are similar to those here,
the time interval in the present case is two years longer. A
four-year time interval makes the temporal factor weak, and
in many cases might be difficult for another factor to out-
weigh. Two incidents four years apart are hardly the proto-
typical "course of conduct." However, as application note
9(B) indicates, the nature of the offense is a relevant consid-
eration in determining whether there is a course of conduct.
U.S.S.G. s 1B1.3 application note 9(B). In this case, the
transactions in which Jackson was involved were extremely
large international cocaine deals. It is hardly reasonable to
anticipate that such transactions would be carried out with
the same frequency as might be expected from smaller drug
transactions. In addition, as in Cedano-Rojas, the lapse of
time does not evidence a voluntary cessation of activity by the
defendant. Here, Jackson's Colombian suppliers, the
Trujillo-Blancos, were allegedly unavailable between 1992
and 1996, making transactions with them during that time
impossible. In addition, Edmond's continued imprisonment
surely imposed at least some constraint on the number of
deals he could broker for the defendant. Therefore, giving
due deference to the trial judge's decision, and in light of the
extreme similarity between the 1992 and 1996 conduct in this
case, we hold that the district court was justified in consider-
ing the 1992 conduct in establishing Jackson's base offense
level under U.S.S.G. s 1B1.3. We make clear, however, that
this result rests heavily on the nature of the 1992 and 1996
transactions and their extreme similarity. A "course of con-
duct" is not a limitless concept, and the limits are approached
in this case.
IV. Conclusion
Given the nature of the 1992 and 1996 transactions, and
their extreme similarity, the district court's decision that
Jackson's 1992 conduct was relevant conduct under U.S.S.G.
s 1B1.3 was justified. We therefore reject appellant's argu-
ments, and affirm the sentence imposed by the district court.