UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-30740
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD A. DYER,
also known as Blabber,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CR-57)
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June 12, 2000
Before JONES and BENAVIDES, Circuit Judges, and WALTER*, District
Judge.
PER CURIAM:**
Appellant Dyer convicted of heroin trafficking,
challenges the district court’s assessment of a substantial
increase in his base offense level for sentencing purposes grounded
in Dyer’s participation in two uncharged murders. Dyer asserts
that the government failed to prove he participated in the murders
and failed to show they were “relevant conduct” for sentencing.
*
District Judge of the Western District of Louisiana, sitting by
designation.
**
Pursuant to 5th Cir. R. 47 .5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Cir. R. 47.5.A.
See U.S.S.G. § 1B1.3. We disagree with the first contention but
agree with the second and must therefore reverse and remand.
As to the first contention, it was not clearly erroneous
for the district court to find that Dyer participated in, and did
not simply have knowledge of, the murders of Kanes and Fernandez.
The finding is supported inter alia by a reasonable interpretation
of Dyer’s secretly tape-recorded statements, interviews with Dyer’s
cellmate, and ballistics tests of Dyer’s gun.
With regard to the second contention, however, there is
insufficient evidence to find the murders were relevant conduct
within the guidelines, i.e., part of the same course of conduct,
common scheme or plan as the offense of conviction. United States
v. Vital, 68, F.3d 114, 118 (5th Cir. 1995). “Offenses qualify as
part of the same course of conduct if they are ‘sufficiently
connected or related to each other to warrant a conclusion that
they are part of a single episode, spree, or ongoing series of
offenses.’” United States v. Ocana, 204 F.3d 585, 589-90 (5th Cir.
2000) (quoting § 1B1.3 Application Note 9(b)). The appropriate
factors to weigh to determine whether the offenses are sufficiently
connected or related include “the degree of similarity of the
offenses, the regularity of the offenses, and the time interval
between the offenses.’” Id. at 590. “When one of the factors is
absent, a stronger presence of at least one of the other factors is
required.” Id.
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A careful review of the PSR and sentencing hearing
persuades us that the only above-referenced factor present in this
case is temporal proximity of the murders to Dyer’s heroin offense.
The government charges Dyer with repetitive conduct involving drugs
and violence. But the record does not connect these murders to
Dyer’s drug trafficking or to the robberies and murders of drug-
dealing associates that Dyer contemplated. Lacking any other
evidence than temporal proximity to demonstrate that these murders
were part of the same course of conduct, common scheme or plan as
the offense of conviction, we must vacate this relevant conduct
enhancement. In so ordering, we need not and do not rule on the
applicability of an upward departure, which may be urged at re-
sentencing.
For these reasons, the sentence is VACATED and the case
REMANDED for re-sentencing consistent herewith.
VACATED and REMANDED.
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