IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 29, 2009
No. 08-10502 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CURTIS ONEAL RHINE
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before WIENER, GARZA, and ELROD, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Curtis Oneal Rhine was convicted, based on his plea
of guilty without a plea agreement, on one count of possession with intent to
distribute 1.89 grams of cocaine base and one count of felon in possession of a
firearm. Rhine now appeals his sentence, contending that the district court
clearly erred when it determined that his earlier drug-related activity was
relevant conduct for sentencing purposes. Convinced that Rhine’s earlier
conduct cannot properly be considered relevant conduct for his sentencing on the
offense of conviction, we reverse and remand for re-sentencing.
No. 08-10502
I. FACTS AND PROCEEDINGS
A. The Offense of Conviction
Late in October 2007, a Fort Worth police officer conducted a routine
traffic stop of a vehicle in which Rhine was occupying the front passenger seat.
There were two other individuals in the vehicle at the time of the stop: Algie
Deon Moore, the driver, and Lavell Buchanan, a female passenger seated in the
rear. When the officer smelled marijuana in the vehicle, he asked Rhine
whether he had been smoking. When Rhine replied that he had smoked
marijuana earlier that evening, the officer asked him to step out of the vehicle.
After a background check revealed that Rhine had several outstanding
warrants for his arrest, the officer took him into custody and conducted a search
of the vehicle, discovering two firearms under the passenger seat where Rhine,
a convicted felon, had been seated. The officer then took both Rhine and Moore
— also a convicted felon — to the Fort Worth city jail, where an intake search
revealed a small plastic bag containing 1.89 grams of cocaine base (crack
cocaine) concealed in Rhine’s anal cavity.1
The grand jury returned a two-count indictment charging Rhine with (1)
possession with intent to distribute 1.89 grams of cocaine base, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C) (“Count 1"), and (2) possession of a firearm by a
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(1), and (a)(2) (“Count 2").
Rhine pleaded guilty to both counts without a plea agreement.2
B. The “Fish Bowl” Drug-Trafficking Ring
In May 2006 — approximately 17 months before Rhine’s arrest for the
instant drug offense — an ongoing FBI investigation known as the “Fish Bowl”
1
The officer released the other passenger, Lavell Buchanan, at the scene without
charging her.
2
Moore, who was only charged in Count 2 of the indictment, also pleaded guilty without
a plea agreement. He is not a party to this appeal.
2
No. 08-10502
investigation culminated in a large-scale drug raid in Fort Worth, Texas. The
raid resulted in the indictments of more than 30 individuals for a variety of
criminal offenses, most of which involved drug trafficking.3 After conducting
post-arrest interviews with many of the individuals apprehended during the
raid, FBI Special Agent J. Coffindaffer (“SA Coffindaffer”) reported that several
individuals had implicated Rhine in the criminal drug activity.4 As agents were
unsuccessful in completing a controlled drug buy from Rhine, he was not charged
along with the other Fish Bowl participants.
After Rhine’s arrest in the instant case, SA Coffindaffer reinitiated his
investigation into Rhine’s participation in the Fish Bowl drug-trafficking ring.
SA Coffindaffer first interviewed Rhine, who stated that he had moved into his
mother’s house several months after the Fish Bowl arrests to “lay low” and to
avoid getting in trouble. Rhine said that he had been unemployed since his
release from state prison in 2005, yet was unable to explain how he had
supported himself, his children, or his drug habit during that time.5 Rhine
further claimed that he had not sold any narcotics or possessed any guns since
his 2005 release. According to Rhine, the guns found during the search of the
vehicle had belonged to Moore, even though Rhine acknowledged that his
fingerprints might be found on one of the firearms because he had loaded it.
3
The term “Fish Bowl” refers to a small neighborhood about three miles southeast of
downtown Fort Worth, bordering the western edge of Cobb Park. According to police, a street
gang controlled the neighborhood by keeping the only two entrances surrounded by lookouts,
making it difficult for police to conduct a surprise raid.
4
In these statements, the individuals assisting in the investigation commonly refer to
Rhine only by his street name — “Pushead,” or “Pus Head.” One individual, however, stated
that he had purchased three to four kilograms of crack cocaine from someone he knew only as
“Pumpkin Head.” As there was no other mention of a “Pumpkin Head” in connection with the
investigation, SA Coffindaffer assumed that this individual was referring to Rhine.
5
Although Rhine stated that he had been released from prison on parole in 2005,
records from the Texas Department of Criminal Justice indicate that he was in fact released
on October 11, 2004.
3
No. 08-10502
Rhine also stated that both he and Moore had first met Buchanan, a crack-
cocaine user, when they picked her up from a service station shortly before their
arrest.
After interviewing Rhine, SA Coffindaffer conducted a series of follow-up
interviews with the individuals who had initially implicated Rhine in the Fish
Bowl drug-trafficking ring, questioning them about their experiences with Rhine
before the Fish Bowl raid and their ensuing arrests. One informant indicated
that he had purchased approximately 15 grams of cocaine base from Rhine on
a single occasion; another indicated that he had received approximately 62
grams of cocaine base from Rhine every week for almost three months; and a
third indicated that he had regularly cooked between five and six kilograms of
powder cocaine into crack cocaine for Rhine over a period of several months.
According to these informants, Rhine was one of the primary, large-scale
suppliers of crack cocaine to the mid-level Fish Bowl dealers prior to the FBI
raid.
SA Coffindaffer also interviewed Lavell Buchanan, the passenger seated
in the back of Moore’s vehicle at the time of Rhine’s arrest. Buchanan stated
that she had initially walked to a service station to purchase beer but decided
to purchase crack cocaine instead when she learned that Rhine and Moore were
selling it from a dark-colored van in the parking lot. According to Buchanan, she
did not know either Rhine or Moore before that meeting, during which she had
agreed to purchase five dollars of crack cocaine from them. Buchanan stated
that she, Rhine, and Moore were driving to her apartment to complete the
transaction when police stopped them.
C. The Pre-Sentence Report
After reviewing the entire record and the statements made to SA
Coffindaffer, the probation officer who compiled the Pre-Sentence Report (“PSR”)
concluded that Rhine’s earlier drug-related activities were relevant conduct for
4
No. 08-10502
sentencing purposes. Specifically, the probation officer deduced that Rhine’s
alleged participation in the Fish Bowl drug-trafficking ring was “all part of the
same course of conduct or common scheme [or] plan as the offense of conviction.”
To determine the total amount of drugs involved in this relevant conduct,
the probation officer credited the testimony of the informant who had stated that
he had regularly cooked between five and six kilograms of powder cocaine into
crack cocaine for Rhine over a period of several months. Basing her calculations
on this information, the probation officer concluded that Rhine had possessed at
least 4.5 kilograms of crack cocaine during the course of his alleged participation
in the Fish Bowl drug-trafficking operations — a figure that, according to the
probation officer, represented a “very conservative estimate” that she made to
avoid double-counting drug amounts.
Pursuant to the United States Sentencing Guidelines (“Guidelines” or
“U.S.S.G.”) Section 2D1.1, the probation officer calculated Rhine’s Base Offense
Level to be 38. Factoring in Rhine’s acceptance of responsibility, his criminal
history record, and his possession of a firearm during commission of the offense,
the probation officer determined that Rhine’s Total Offense Level was 37 with
a Criminal History Category of IV, producing a Guidelines range of 292 to 365
months imprisonment.6 The Guidelines called for Rhine’s sentences on Counts
1 and 2 to be imposed consecutively, but only to the extent necessary to produce
a combined sentence equal to his total maximum punishment.7
6
Although the Guidelines indicated a sentencing range of up to 365 months, the
maximum sentence for Count 1 is limited by statute to 240 months and the maximum
sentence for Count 2 is limited to 120 months, thus providing for a maximum statutory
sentence of no more than 360 months if imposed to run consecutively.
7
U.S.S.G. § 5G1.2(d) (2007) (“If the sentence imposed on the count carrying the highest
statutory maximum is less than the total punishment, then the sentence imposed on one or
more of the other counts shall run consecutively, but only to the extent necessary to produce
a combined sentence equal to the total punishment.”).
5
No. 08-10502
Rhine timely filed an objection to the PSR. His primary objection was to
the conclusion that his alleged participation in the Fish Bowl drug-trafficking
ring was relevant conduct for sentencing on his offense of conviction. Rhine
insisted that any participation in the Fish Bowl incident was neither part of a
common scheme or plan nor part of the same course of conduct as the instant
behavior. Rhine contended that the activities not only lacked common
accomplices, common victims, a common purpose, or a common modus operandi,
but also showed no evidence of temporal proximity, similarity, or regularity.
Rhine also objected to the PSR’s consideration of facts that were neither
admitted by him nor found beyond a reasonable doubt by a jury, contending that
the court would violate his Sixth Amendment rights by increasing his sentence
based on such information.
In response to Rhine’s objections, the probation officer filed an Addendum
to the PSR, in which she declined to credit the objections or amend her
Guidelines calculations. Insisting that Rhine’s earlier drug-related activities
were relevant conduct, the probation officer voiced the opinion that Rhine “has
participated in drug-related activities since at least 1993.” In particular, the
probation officer cited Rhine’s three pre-Fish Bowl convictions for drug-related
crimes, noting that (1) in 1993, Rhine pleaded guilty to possession of crack
cocaine with intent to deliver, (2) in 1999, he pleaded guilty to possession of
marijuana, and (3) in 2002, he pleaded guilty to possession of a controlled
substance.8 Despite having no direct evidence that Rhine had engaged in any
criminal activity — much less drug activity — between May 2006 and October
2007, the probation officer nevertheless found persuasive the absence of
“evidence that [he] completely removed himself from that type of lifestyle.”
8
In addition, Rhine was also arrested twice in connection with other drug-related
offenses, although these arrests did not lead to convictions: (1) In 1993, he was arrested for
possession of crack cocaine; and (2) in 1998, he was arrested for possession of marijuana.
6
No. 08-10502
According to the probation officer, Rhine likely would have been distributing a
large volume of drugs over that period if not for “the fact that most of the larger
scale dealers had already been arrested for, and convicted of, federal drug
violations.” Declining to credit Rhine’s move into his mother’s house to “lay low”
as a voluntary departure from crime, the probation officer instead surmised that
Rhine had silently harbored intentions to “resume his drug trafficking
activities.” The probation officer concluded that Rhine’s participation in the Fish
Bowl drug-trafficking ring and his offense of conviction were all part of the same
course of conduct or common scheme or plan.
Rhine timely objected to the Addendum, again asserting that his alleged
participation in the Fish Bowl drug-trafficking ring was not relevant conduct for
purposes of sentencing on the offense of conviction.
D. Sentencing
The district court adopted the findings of the PSR and the Addendum,
overruling Rhine’s objections to both. The court said that “all of the transactions
that were taken into account by the probation officer were sufficiently connected
or related to each other to warrant the conclusion that they were a part of a
single episode or spree or ongoing series of offenses.” Despite the absence of any
record evidence, either direct or circumstantial, that Rhine had dealt drugs since
the end of the Fish Bowl operations, the government stated on the record that
there was no indication that Rhine had stopped selling drugs in the period
between the Fish Bowl arrests and his offense of conviction. The court explained
that it had taken this into consideration in making its relevant-conduct
determination. The court then overruled Rhine’s other objections, including his
contention that the Sixth Amendment prevented the court from increasing his
sentencing range based on facts that were neither admitted by him nor found by
a jury.
7
No. 08-10502
Adopting the Guidelines calculations set forth in the PSR, the district
court sentenced Rhine to the statutory maximum period of imprisonment — 240
months as to Count 1 and 120 months as to Count 2, to run consecutively.
Rhine timely appealed his sentence. He now urges that (1) the district
court committed clear error by characterizing his earlier drug-related activities
as relevant conduct for sentencing purposes, and (2) even if those activities were
relevant conduct, the court violated his Sixth Amendment rights by increasing
his sentence based on facts neither admitted by Rhine nor proved beyond a
reasonable doubt to a jury.
II. ANALYSIS
A. Standard of Review
A district court’s interpretation and application of the Guidelines is
reviewed de novo and its factual determinations are reviewed for clear error.9
“A finding by the district court that unadjudicated conduct is part of the same
course of conduct or common scheme or plan is a factual determination subject
to review . . . under the clearly erroneous standard.” 10 “A factual finding is not
clearly erroneous as long as it is plausible in light of the record as a whole.”11
B. Relevant Conduct
A defendant convicted of a drug offense is sentenced based on the amount
of drugs involved in the offense.12 In calculating a defendant’s base offense level,
9
United States v. Peterson, 101 F.3d 375, 384 (5th Cir. 1996).
10
United States v. Hinojosa, 484 F.3d 337, 340 (5th Cir. 2007) (internal quotation
marks and citation omitted); see United States v. Wall, 180 F.3d 641, 644 (5th Cir. 1999) (“A
district court’s determination of what constitutes relevant conduct for purposes of sentencing
is reviewed for clear error.”); United States v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993)
(“[S]pecific factual findings regarding relevant conduct are reviewed on appeal only for clear
error.”).
11
United States v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991).
12
U.S.S.G. § 2D1.1.
8
No. 08-10502
the district court may consider other offenses in addition to the acts underlying
the offense of conviction, as long as those offenses constitute “relevant conduct”
as defined in the Guidelines. 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.” 13 The defendant need not have been convicted of, or even
charged with, the other offenses for them to be considered relevant conduct for
sentencing purposes.14 In drug distribution cases, we have “broadly defined
what constitutes the ‘same course of conduct’ or ‘common scheme or plan.’”15
With this in mind, we now address whether Rhine’s alleged participation in the
Fish Bowl drug-trafficking ring and his offense of conviction are part of (1) a
common scheme or plan, or (2) the same course of conduct.
1. Common Scheme or Plan
A separate, unadjudicated offense may be part of a common scheme or
plan — and thus relevant conduct — if it is “substantially connected to [the
offense of conviction] by at least one common factor, such as common victims,
common accomplices, common purpose, or similar modus operandi.” 16 Several
courts have concluded that, for two offenses to be considered part of a common
scheme or plan, the acts “must be connected together by common participants
13
United States v. Moore, 927 F.2d 825, 827 (5th Cir. 1991) (quoting United States v.
Mir, 919 F.2d 940, 943 (5th Cir. 1990)) (internal quotation marks omitted); see id. (“To be
considered as relevant conduct, drug related offenses need not result in the defendant’s
conviction.”); United States v. Edwards, 911 F.2d 1031, 1033 (5th Cir. 1990) (“The district
court can consider a broad range of conduct in assessing a defendant’s offense level under the
guidelines and is not limited solely to the conduct for which the defendant is being
sentenced.”).
14
Wall, 180 F.3d at 644-45.
15
Bryant, 991 F.2d at 177.
16
U.S.S.G. § 1B1.3, cmt. n.9(A).
9
No. 08-10502
or an overall scheme.” 17 In United States v. Wall, we ruled that two offenses
were not part of a common scheme or plan because (1) the offenses did not share
any common accomplices, (2) there was no common modus operandi, as the
earlier offense involved a small amount of marijuana and the later offense
involved large quantities of marijuana concealed in pick-up trucks, and (3) the
only common purpose between the offenses was “importing marijuana for
distribution in the United States,” which was, by itself, insufficient to establish
a common scheme or plan.18
We conclude that Rhine’s participation in the Fish Bowl drug-trafficking
ring and his offense of conviction cannot be considered part of a common scheme
or plan. There is no evidence that Moore, Rhine’s only accomplice in his offense
of conviction, played any role in the Fish Bowl drug-trafficking ring. Neither is
there evidence that any Fish Bowl participant was involved in the instant
incident. Further, the offenses do not share a common modus operandi: In the
Fish Bowl offense, Rhine is alleged to have been a large-scale supplier to mid-
level dealers; by contrast, in the offense of conviction, he attempted to sell a
small quantity of crack cocaine to an individual buyer for five dollars. Finally,
the only common purpose linking the two offenses is Rhine’s motivation to profit
from the distribution of crack cocaine, which — like the marijuana importation
in Wall — is by itself insufficient to connect the offenses as separate parts of a
common scheme or plan. 19 We must therefore proceed to determine whether
17
See United States v. Hill, 79 F.3d 1477, 1482 (6th Cir. 1996) (collecting cases)
(internal quotation marks omitted).
18
Wall, 180 F.3d at 645.
19
See United States v. Culverhouse, 507 F.3d 888, 895 (5th Cir. 2007) (holding that two
offenses were not part of a common scheme or plan when the offenses could only “be connected
by . . . the most general of purposes, in that they both involved methamphetamine”).
10
No. 08-10502
Rhine’s alleged participation in the Fish Bowl drug-trafficking ring may properly
be considered part of the same course of conduct as his offense of conviction.
2. Same Course of Conduct
The Guidelines state that “[o]ffenses 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 [the offense of conviction]
as to warrant the conclusion that they are part of a single episode, spree, or
ongoing series of offenses.”20 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.” 21 A weak showing as to
any one of these factors will not preclude a finding of relevant conduct; rather,
“[w]hen one of the above factors is absent, a stronger presence of at least one of
the other factors is required.”22
a. Temporal Proximity
To determine whether temporal proximity is present, we begin with the
interval between the defendant’s purported relevant conduct and the offense of
conviction.23 Because there is “no separate statute of limitations beyond which
relevant conduct suddenly becomes irrelevant,” a defendant’s prior conduct will
not necessarily be “placed off limits simply because of a lapse of time.”24
Nevertheless, “various courts have found that a period of separation of over one
20
U.S.S.G. § 1B1.3, cmt. n.9(B).
21
Id.
22
Id.
23
See Culverhouse, 507 F.3d at 896.
24
Moore, 927 F.2d at 828; see United States v. Santiago, 906 F.2d 867, 872-73 (2d Cir.
1990) (stating that there are no “inherent limitations on the transactions to be considered”).
11
No. 08-10502
year negated or weighed against [a finding of] temporal proximity.” 25 We have
“generally used a year as the benchmark for determining temporal proximity.”26
For example, in United States v. Miller, we concluded that offenses separated by
21 months were “relatively remote in time” and held that “other factors must be
authoritatively present in order to overcome this long gap.”27
Here, at least 17 months separate any participation by Rhine in the Fish
Bowl drug-trafficking ring from his offense of conviction.28 Although not
dispositive, a hiatus this large suggests that temporal proximity is lacking. We
also find counter-indicative the lack of evidence that Rhine engaged in any
intervening criminal activity, the presence of which might link his earlier
conduct to the offense of conviction.29 The government urges us to overlook this
25
Wall, 180 F.3d at 646; see, e.g., Hill, 79 F.3d at 1484 (6th Cir. 1996) (“[W]e find that
temporal proximity is extremely weak in that nineteen months is an exceedingly long lapse
between offenses.”); United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir. 1994) (concluding
that two offenses occurring more than a year apart were “temporally remote”).
26
See United States v. Booker, 334 F.3d 406, 414 (5th Cir. 2003). Compare Culverhouse,
507 F.3d at 896 (concluding that temporal proximity was lacking when offenses were
separated by almost three years), and United States v. Miller, 179 F.3d 961, 966 (5th Cir.
1999) (holding that offenses separated by 21 months were temporally remote), with Bryant,
991 F.2d at 177 (concluding that temporal proximity of roughly two months supported district
court’s finding of relevant conduct), and Moore, 927 F.2d at 826, 828 (holding that
amphetamines seized five months prior to offense of conviction could be considered relevant
conduct). But see United States v. Robins, 978 F.2d 881, 890 (5th Cir. 1992) (concluding that
“a hiatus of approximately one and one half years” did not render prior “similar transactions”
irrelevant for sentencing purposes).
27
179 F.3d at 966, 967 n.10.
28
As stated above, the Fish Bowl investigation culminated in a large-scale drug raid
on May 17, 2006, but the informant on whose statement the probation officer relied indicated
that he had stopped cooking crack cocaine for Rhine by approximately January 2006.
Therefore, depending on which source one credits, Rhine’s participation in the Fish Bowl drug-
trafficking ring ended some time between January and May 2006, meaning that at least 17
months — and as many as 22 months — separate Rhine’s earlier conduct from his offense of
conviction.
29
See 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
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No. 08-10502
shortcoming, insisting that the apparent lack of intervening criminal activity is
solely the result of the informants’ imprisonment on federal drug convictions —
and not Rhine’s voluntarily abstention from criminal activity. This argument
is unpersuasive, as it suggests that Rhine has the burden of proving the negative
fact that he did not engage in any intervening criminal activity, when in fact it
is incumbent on the government to show the positive fact of Rhine’s continued
drug distribution activities.
We conclude that temporal proximity is lacking, adding, however, that our
conclusion does not necessarily preclude a finding of relevant conduct.30
Offenses separated by 17 months — or even longer periods of time — might still
be considered part of the same course of conduct if supported by a stronger
presence of at least one of the other factors. In particular, we recognize that a
lapse of time between prior conduct and the offense of conviction does not
necessarily indicate that a defendant abandoned a course of conduct. In some
cases, a lapse of time might merely mean that the defendant had to put a
venture “on hold.”31 For example, in United States v. Cedano-Rojas, the Seventh
Circuit concluded that a defendant’s drug transaction that occurred two years
prior to his offense of conviction was not too temporally remote to be considered
relevant conduct.32 The defendant in Cedano-Rojas had completed a large-scale
drug transaction shortly before losing his supplier, after which he faced
difficulties obtaining cocaine, resulting in a two-year gap between his earlier
earlier drug activity could be considered relevant conduct).
30
See Culverhouse, 507 F.3d at 896 (“However, a failure in temporal proximity does not,
by itself, prevent a finding of relevant conduct.”).
31
See United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir. 1993).
32
Id.
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No. 08-10502
offense and the offense of conviction.33 Describing the defendant’s earlier
offense as “relatively stale,” the Seventh Circuit warned that courts must remain
“cautious and exacting in permitting such . . . dealings to be included in the same
course of conduct as the offense of conviction.34 Nevertheless, the Seventh
Circuit affirmed the district court’s finding of relevant conduct, basing its
holding largely on the overwhelming evidence in support of similarity, as both
offenses involved (1) large amounts of cocaine, (2) the same source and supplier,
and (3) a nearly identical use of “mules” to distribute the drugs.35 Thus, even if,
arguendo, we were to adopt the reasoning of Cedano-Rojas and find that Rhine
had been forced to put his venture “on hold” following the Fish Bowl arrests, we
would still need to determine whether a stronger presence of either similarity
or regularity compensates for the absence of temporal proximity.36 Therefore,
we must now determine whether there is sufficient evidence of similarity or
regularity to support a finding that Rhine’s earlier conduct and his offense of
conviction were part of the same course of conduct, despite the attenuation
between the end of the Fish Bowl ring’s operations and Rhine’s crime of
conviction.
b. Similarity
To determine whether a defendant’s earlier conduct is sufficiently similar
to the offense of conviction, we inquire whether “there are distinctive similarities
between the offense of conviction and the remote conduct that signal that they
are part of a course of conduct rather than isolated, unrelated events that
33
Id. at 1177-78.
34
Id. at 1180.
35
Id. at 1180-81.
36
Id.
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No. 08-10502
happen only to be similar in kind.” 37 As we have previously cautioned, however,
courts must not conduct this analysis at such a level of generality as to render
it meaningless.38 For example, in Wall, we concluded that two offenses were not
sufficiently similar because (1) there was no evidence that the marijuana
involved in each of the offenses shared a common source, supplier or destination,
(2) there were no common accomplices, and (3) one of the offenses involved “large
loads of marijuana secreted in the wheels and gas tank[s] of two pick-up trucks
driven across the border,” whereas the other offense involved only “a much
smaller . . . load hidden [somewhere] in [the defendant’s car].”39
Likewise, there are several material differences between Rhine’s alleged
participation in the Fish Bowl drug-trafficking ring and his offense of conviction.
Rhine’s instant offense involved possession of a very small quantity (1.89 grams)
of crack cocaine with intent to sell some lesser portion of it to an individual
buyer for five dollars; the sale took place in a vehicle; and Buchanan, the
individual purchaser for her personal consumption, had just learned about Rhine
from some unnamed source at a service station. In contrast, Rhine’s alleged
participation in the Fish Bowl drug-trafficking ring was said to have involved his
acting as a large-scale manufacturer, distributor, and supplier of kilogram
quantities of crack cocaine to numerous mid-level dealers. There are not even
any allegations that Rhine sold to individual users during the Fish Bowl drug
trafficking. Neither is there any suggestion that the two incidents involved any
common participants or accomplices.
37
Culverhouse, 507 F.3d at 896 (internal quotation marks and citation omitted).
38
See Wall, 180 F.3d at 646-47 (quoting United States v. Mullins, 971 F.2d 1138, 1145
(4th Cir. 1992)).
39
Id. at 646.
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No. 08-10502
We conclude that similarity is lacking, as the differences between these
offenses are significant. The quantities, methods of distribution, participants,
and nature of the transactions — as well as the defendant’s role in them — all
vary substantially. Further, there is no evidence that the cocaine forming the
basis for Rhine’s offense of conviction shared a common source, supplier, or
destination with the cocaine involved in the Fish Bowl activities.40 Although the
offenses both involve the distribution of crack cocaine, the mere fact that two
separate offenses involve the same type of drug is generally not sufficient to
support a finding of similarity.41 To hold that these offenses are similar 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 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.42
40
See Culverhouse, 507 F.3d at 896 (“Nor is there any evidence that the
methamphetamine in the two offenses shared a common source, supplier, destination, or that
the two offenses involved a similar modus operandi.”); Wall, 180 F.3d at 646 (“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.”).
41
See Culverhouse, 507 F.3d at 896 (“The fact that [the unadjudicated offense and the
offense of conviction] both involved methamphetamine is not enough.”); Wall, 180 F.3d at 646-
47 (“We do not think that two offenses constitute a single course of conduct simply because
they both involve drug distribution.”); Miller, 179 F.3d at 967 (concluding that similarity was
lacking because “[t]he only real similarity between the two [offenses] is that they both involved
a transaction for the sale of cocaine”).
42
Mullins, 971 F.2d at 1145; see Hill, 79 F.3d at 1484 (stating that, if 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).
16
No. 08-10502
Having satisfied ourselves that both temporal proximity and similarity are
lacking, we must now determine whether there is a sufficiently strong presence
of regularity to support a finding of relevant conduct.43
c. Regularity
To determine whether “regularity” is present, we inquire whether there
is evidence of a regular, i.e., repeated, pattern of similar unlawful conduct
directly linking the purported relevant conduct and the offense of conviction.44
For example, in Culverhouse, we held that two dissimilar offenses separated by
almost three years lacked regularity because there was no evidence of unlawful
conduct occurring “between the [defendant’s] prior transaction . . . and [his] later
manufacturing.” 45 In Culverhouse, the government had insisted that regularity
was present because the defendant had been involved in several prior drug
transactions, all of which had taken place before the offense the government
sought to characterize as relevant conduct.46 But, as we explained, “[t]he
sentencing judge could not have relied on this evidence to establish the
regularity required by § 1B1.3,” primarily because the temporally remote
offenses had not occurred between the earlier conduct and the offense of
conviction.47 We then concluded that, even if we were to consider the earlier
offenses, our case law established that “five offenses over the course of fifteen
years, separated as they are by time and circumstances, cannot be considered
43
See Culverhouse, 507 F.3d at 896 (“While we question whether a showing of
regularity alone could support a finding of relevant conduct when coupled with an absence of
temporal proximity and similarity, we assume arguendo that a showing of sufficient regularity
could provide the necessary support.”).
44
See Wall, 180 F.3d at 646, n.6.
45
507 F.3d at 897.
46
Id. at 896-97.
47
Id. at 897.
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No. 08-10502
repetitious or regular conduct to a degree significant enough to constitute
sufficient connection under the [G]uidelines.”48
After reviewing the instant record, we conclude that regularity is lacking,
as there is no evidence that Rhine engaged in any intervening criminal activity
— much less drug distribution — between the Fish Bowl drug-trafficking ring
and his offense of conviction. Without even a scintilla of evidence that Rhine
sold drugs in the interim, the government nevertheless seeks to shift the burden
to Rhine, insisting that he must prove the negative fact that he did not engage
in a series of similar drug transactions. But we decline to adopt the
government’s assertion that regularity is present merely because of Rhine’s
inability to disprove an assertion that already finds no support in the record, and
conclude instead that there is no evidence of intervening or repetitious criminal
behavior that might link the two incidents together.
The government also insists that Rhine’s three prior convictions for
marijuana possession and cocaine distribution support a finding of regularity,
even though the convictions all took place well before Rhine’s alleged
participation in the Fish Bowl drug-trafficking ring. Rhine counters that, under
our precedent, a district court may not base a finding of regularity on a
defendant’s prior convictions or activity that did not take place between the
purported relevant conduct and the offense of conviction.
It bears emphasizing that the overall purpose of this analysis is simply to
determine whether the offense at issue is part of the “same course of conduct” as
the offense of conviction, or, more specifically, whether the two are “sufficiently
connected or related . . . as to warrant the conclusion that they are part of a
single episode, spree, or ongoing series of offenses.” 49 Consequently, we decline
48
Id. (internal quotation marks and citation omitted).
49
U.S.S.G. § 1B1.3, cmt. n.9(B).
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No. 08-10502
to adopt Rhine’s suggestion that a district court may never consider a
defendant’s prior convictions or activities simply because they did not occur in
the interval between the purported relevant conduct and the offense of
conviction. Rhine’s contention misstates our holding in Culverhouse, in which
we concluded not only that the defendant’s several prior transactions had
preceded his purported relevant conduct, thus rendering their persuasive value
questionable, but also that, even on the merits, those activities did not
demonstrate sufficient regularity to overcome the absence of both temporal
proximity and similarity. Indeed, there may be the rare case in which a prior
conviction or prior activity informs this analysis by establishing a direct link,
i.e., a pattern of regularity or repetition, between the purported relevant conduct
and the offense of conviction (e.g., if a specific “course of conduct” began before
the “relevant conduct” and continued through to the offense of conviction). But
this, like Culverhouse, is not such a case. We are satisfied that Rhine’s old, pre-
Fish Bowl convictions do not establish a direct link or pattern of regularity
between the two disparate and temporally remote incidents at issue, viz., Rhine’s
alleged 2006 participation in a large-scale drug trafficking ring and his 2007
conviction for a relatively small, street-level drug deal.
In sum, Rhine’s alleged participation in the Fish Bowl activities cannot be
considered part of the same course of conduct as his instant offense, as temporal
proximity, similarity, and regularity are all lacking.
C. Sixth Amendment
Having concluded that Rhine’s alleged participation in the Fish Bowl drug-
trafficking-ring cannot properly be considered relevant conduct, we need not
address the merits of his Sixth Amendment claim. We note, however, that the
claim is foreclosed by our precedent.50
50
See United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006) (explaining that,
following United States v. Booker, 543 U.S. 220 (2005), “[t]he sentencing judge is entitled to
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No. 08-10502
III. CONCLUSION
For the foregoing reasons, we conclude that the district court clearly
erred by treating Rhine’s alleged participation in the Fish Bowl drug-
trafficking ring as relevant conduct for purposes of sentencing on his offense
of conviction. Rhine’s activity in the Fish Bowl operations and the instant
offense are not part of a common scheme or plan, as the two disparate
incidents lack common accomplices, common victims, a common purpose, or a
common modus operandi. Neither can the two disparate incidents be
considered part of the same course of conduct, as temporal proximity,
similarity, and regularity are all lacking. We therefore VACATE Rhine’s
sentence and REMAND for re-sentencing in conformity with this opinion.
find by a preponderance of the evidence all the facts relevant to the determination of a
guideline sentencing range”); United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006) (same).
20