[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16876 JUNE 13, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00065-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR LEE COLEMAN,
a.k.a. Pops,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(June 13, 2006)
Before DUBINA, BLACK and HULL, Circuit Judges.
PER CURIAM:
Arthur Lee Coleman appeals his sentence imposed after pleading guilty to
distribution of five grams or more of cocaine base, in violation of 21 U.S.C.
§841(a)(1). Coleman asserts the district court erred by: (1) enhancing his
applicable sentencing range based on facts neither admitted by him nor found by a
jury in violation of United States v. Booker, 125 S. Ct. 738 (2005); (2) considering
the drugs seized from his car and residence on March 22, 2005 in calculating his
base offense level because the evidence seized did not constitute relevant conduct
under U.S.S.G. § 1B1.3; and (3) holding him accountable for 229.7 grams of
cocaine hydrochloride, which was converted into the 2.297 grams of cocaine base,
because cocaine hydrochloride is not cocaine base. We discuss each issue in turn,
and find no error.
I. DISCUSSION
A. Error under Booker
When a defendant raises a constitutional objection to enhancements of his
sentence in the district court, we review the sentence de novo. United States v. Paz,
405 F.3d 946, 948 (11th Cir. 2005). We review challenges to the district court’s
consultation of the Guidelines as we did before Booker–the district court’s
interpretation of the Guidelines is subject to de novo review, while its factual
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findings must be accepted unless clearly erroneous. United States v. Ellis, 419
F.3d 1189, 1192 (11th Cir. 2005).
After Booker, “the use of extra-verdict enhancements in an advisory
guidelines system is not unconstitutional.” United States v. Chau, 426 F.3d 1318,
1323 (11th Cir. 2005) (emphasis added) (quotations and citation omitted). The
court may find facts not found by a jury nor admitted by the defendant, and use
them in formulating a sentence, as long as it applies the Guidelines as advisory. Id.
at 1324. In United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005), cert.
denied 126 S. Ct. 432 (2005), we stated “[o]ur Circuit's precedent uniformly states,
[r]elevant conduct of which a defendant was acquitted nonetheless may be taken
into account in sentencing for the offense of conviction, as long as the government
proves the acquitted conduct relied upon by a preponderance of the evidence.”
(quotations and citations omitted). We explained further that:
Booker does not suggest that the consideration of acquitted conduct
violates the Sixth Amendment as long as the judge does not impose a
sentence that exceeds what is authorized by the jury verdict. Thus,
nothing in Booker erodes our binding precedent. Booker suggests that
sentencing judges can continue to consider relevant acquitted conduct
when applying the Guidelines in an advisory manner, [f]or when a
trial judge exercises his discretion to select a specific sentence within
a defined range, the defendant has no right to a jury determination of
the facts that the judge deems relevant.
Id. at 1304-05 (quotations, footnote, and citations omitted).
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Here, the district court used conduct to which Coleman did not plead guilty
in arriving at his base offense level. The district court, however, noted the
Guidelines were only advisory in nature, thereby avoiding any Booker error.
Moreover, the record reveals the Government proved by a preponderance of the
evidence that Coleman was responsible for additional quantities of cocaine
hydrochloride and cocaine base found at his residence and car during the March
22, 2005, search. Therefore, the district court did not commit clear error.
B. Relevant conduct
The Guidelines provide that relevant conduct shall be taken into account in
calculating the defendant’s base offense level. U.S.S.G. § 1B1.3. Relevant
conduct includes “all acts and omissions . . . that were part of the same course of
conduct or common scheme or plan as the offense of conviction.” Id.
§ 1B1.3(a)(2). The commentary explains that “ [a]pplication of this provision does
not require the defendant, in fact, to have been convicted of multiple counts.” Id.
§ 1B1.3, comment. (n.3). The commentary provides an example of a drug case
where a defendant sells 10, 15, and 20 grams of cocaine on three occasions as part
of the same course of conduct or common scheme or plan. See id. In that case, the
defendant would be responsible for 45 grams of cocaine even if he were convicted
of a single count charging only one of the sales. See id.
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For two or more offenses to constitute part of common scheme or plan, they
must be substantially connected to each other by at least one common factor, such
as common purpose. Id. § 1B1.3, comment. (n.9(A)). In relevant part, U.S.S.G.
§ 1B1.3, comment. n. 9(B) provides:
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 a part of a single episode, spree, or
ongoing series of offenses. Factors that are appropriate to the
determination of whether offenses are sufficiently connected or
related to each other to be considered as part of the same course of
conduct include the degree of similarity of the offenses, the regularity
(repetitions) of the offenses, and the time interval between the
offenses.
The district court did not clearly err by attributing to Coleman as relevant
conduct the drugs seized on March 22, 2005. Contrary to Coleman’s assertion,
even though he pleaded only to Count 1, the Guidelines do not require the
defendant be convicted of multiple counts for § 1B1.3 to be applicable. Further,
Coleman’s January 27, 2005, and March 22, 2005, offenses reflect the same course
of conduct. First, the record reveals that Coleman distributed crack cocaine to the
confidential informant (CI) on January 27, 2005, and less than two months later he
possessed items consistent with drug distribution, such us latex gloves, copper
scouring pads, razor blades, small plastic bags, and a large amount of money.
Second, both offenses involved similar types and quantities of drugs. On January
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27, 2005, Coleman sold 17.8 grams of cocaine base, while on March 22, 2005,
Coleman possessed 15.1 grams of crack cocaine and 229.9 grams of powder
cocaine, which can be converted into crack cocaine. Third, during the search, the
officers found $260 of the “buy” money the CI used to purchase crack from
Coleman mixed in a large amount of money recovered from Coleman’s bedroom.
Thus, the evidence indicates both offenses were sufficiently connected to each
other as to warrant the conclusion they were part of an ongoing series of offenses.
Accordingly, the district court did not clearly err by attributing the drugs seized on
March 22, 2005, to Coleman.
C. Conversion Ratio
Because Coleman raises this issue for the first time on appeal, we review it
for plain error. See United States v. Barfield, 396 F.3d 1144, 1150 (11th Cir.
2005). We have found the 100:1 conversion ratio between powder and crack
cocaine appropriate. United States v. Byse, 28 F.3d 1165, 1171 n.9 (11th Cir.
1994).
The district court did not plainly err by determining that 229.7 grams seized
from the search of Coleman’s residence and vehicle on March 22, 2005, was
equivalent to 2.297 grams of cocaine base. The conversion ratio 100:1 for powder
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cocaine to crack cocaine is contemplated by the Guidelines and we have found that
ratio appropriate.
II. CONCLUSION
The district court did not err in enhancing Coleman’s sentencing range based
on facts not admitted by him or found by a jury, considering the drugs seized from
his car and residence on March 22, 2005 in calculating his base offense level, or
holding him accountable for 2.297 grams of cocaine base. Thus, we affirm
Coleman’s sentence.
AFFIRMED.
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