United States v. Sago , 355 F. App'x 158 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 7, 2009
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-1192
(D. Ct. No. 1:08-CR-00251-JLK-1)
DWIGHT EDMOND SAGO, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before TACHA and GORSUCH, Circuit Judges, and STAMP, District Judge.**
Defendant-appellant Dwight Edmond Sago was tried and convicted by a jury of
one count of possessing with intent to distribute crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii). During sentencing, the district judge included as relevant
conduct a quantity of crack cocaine Mr. Sago possessed more than five months prior to
the activity for which he was charged. See United States Sentencing Guidelines Manual
(“U.S.S.G.” or “Guidelines”) § 1B1.3. Mr. Sago appeals the consideration of that drug
quantity, contending that the government failed to prove that his possession of it qualifies
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
The Honorable Frederick P. Stamp, Jr., Senior United States District Judge for
the Northern District of West Virginia, sitting by designation.
as relevant conduct. He also argues that the district court erred by failing to make a
specific finding that the drugs satisfy the Guidelines’ definition of relevant conduct. We
take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
Mr. Sago was arrested on March 20, 2008, as he left an apartment in Colorado
Springs that police officers were surveilling in connection with a drug trafficking
investigation. As police officers were approaching the apartment with the intention of
executing a search warrant, Mr. Sago ran to a car and started to drive away but was
stopped by the police. When the police officers opened Mr. Sago’s car door, they saw
him drop something which they later determined was a bag containing crack cocaine.
After removing Mr. Sago from the car, an officer patted him down and found a second
bag containing crack cocaine in his pocket. Officers found a third bag containing crack
cocaine inside a false-bottomed aerosol can in the car. After transporting Mr. Sago to the
police station, the arresting officer found a scale on the floorboard of the patrol car used
to transport him. Mr. Sago later admitted to dropping the scale in the patrol car.
Laboratory testing showed that the three bags contained a total of 34.9 grams of crack
cocaine.
Police Officer Troy Lindvall testified at trial that, on October 9, 2007, he stopped
Mr. Sago after observing several traffic violations. When Officer Lindvall patted Mr.
Sago down, he found a digital scale and a plastic bag of something that appeared to be
crack cocaine in Mr. Sago’s pants pocket. Officer Lindvall field-tested the substance in
-2-
the bag, which tested positive for cocaine. Officer Lindvall estimated the bag contained
about an ounce, or 28 grams, of crack cocaine, which the officer described as a
“distribution” amount.
After the jury convicted Mr. Sago, a presentence investigation report (“PSR”) was
prepared that included both the government’s and Mr. Sago’s sentencing
recommendations. Both parties recognized that the evidence at trial supported a finding
that Mr. Sago possessed 34.9 grams of crack cocaine, which produced a base offense
level of 26. See U.S.S.G. § 2D1.1(c)(7). The government, however, included an
additional 24.6 grams which it determined was the amount found by Officer Lindvall
during the October 9 traffic stop. The resultant quantity of 59.5 grams of crack cocaine
produced a base offense level of 30. See id. § 2D1.1(c)(5).
In his sentencing statement, Mr. Sago objected to the inclusion of the crack
cocaine seized from him on October 9 because it was “only ‘field tested’ and the weight
of the substance was a gross weight that included the packaging.” Thereafter, Mr. Sago
objected to the inclusion of the October 9 incident as relevant conduct because (1)
evidence of that incident should not have been admitted at trial under Fed. R. Evid. 403
and 404(b), as Mr. Sago argued at the final pre-trial conference; and (2) “the offense level
should be based on the amount the jury found he had possessed which would result in an
offense level of 26 based on 34.9 grams of crack cocaine.” Thereafter, the PSR was
amended to reflect ATF Special Agent Peter Merenyi’s report that a laboratory analysis
of the crack cocaine seized from Mr. Sago on October 9 indicated that the net weight of
-3-
the drug was 16.7 grams, not 24.6 grams as originally reported. Even with this reduced
amount, however, the total quantity of crack cocaine seized from Mr. Sago on October 9
and March 20 was still greater than 50 grams and thus still produced a base offense level
of 30 under U.S.S.G. § 2D1.1(c)(5).
At the sentencing hearing, the court overruled Mr. Sago’s objection to inclusion of
the October 9 incident as relevant conduct, finding that the drugs were “relevant and
material” and could be taken into consideration. The district court therefore found that
Mr. Sago’s offense level was 30, his criminal history placed him in Category II, and the
applicable advisory Guidelines range was 108–135 months. The court sentenced Mr.
Sago to 120 months’ imprisonment. Mr. Sago now appeals his sentence.
II. DISCUSSION
Mr. Sago argues that the crack cocaine seized during his October 9, 2007 traffic
stop should not be considered when determining his base offense level under the
Guidelines because: (1) the district court improperly held that the drugs satisfied the
definition of relevant conduct, and (2) the district court failed to make a specific finding
as to relevant conduct. The government contends that Mr. Sago failed to preserve either
claim of error by the trial court. “To preserve an issue for our review, a party must make
a proper, timely objection at trial or sentencing on the same specific ground he or she is
appealing.” United States v. McClellan, 165 F.3d 535, 551 (7th Cir. 1999) (emphasis
omitted). Mr. Sago’s counsel objected to the consideration of the October 9 drugs as
relevant conduct but never did so on the particular grounds now addressed on appeal –
-4-
instead, she focused her objections on Fed. R. Evid. 403 and 404 and the fact that she
understood the drugs to have been only field tested. Specific and timely objections “can
alert the district court and opposing counsel, so that a potential error can be corrected,
obviating any need for an appeal.” United States v. Lopez-Flores, 444 F.3d 1218, 1221
(10th Cir. 2006). Nevertheless, assuming arguendo that Mr. Sago preserved the issue for
appeal, we hold that the district court properly considered the October 9 drugs as relevant
conduct.
Mr. Sago challenges the application of the drugs found in his possession on
October 9 as relevant conduct, which resulted in increasing his base offense level from 26
to 30. “We review the district court’s factual findings to determine whether there was
clear error, and we review the ultimate determination of relevant conduct de novo.”
United States v. Egbert, 562 F.3d 1092, 1096–97 (10th Cir. 2009) (quoting United States
v. Osborne, 332 F.3d 1307, 1311 (10th Cir. 2003)).
Under the Guidelines, a defendant’s offense level is determined by considering the
conduct underlying the offense of conviction as well as other “relevant conduct.” See
U.S.S.G. § 1B1.3(a). Relevant conduct for drug offenses such as Mr. Sago’s is defined as
“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 parties appear to
agree that if the October 9 conduct qualifies as relevant conduct it does so under the
“course of conduct” clause. “‘Same course of conduct’ ‘does not require a connection
between the acts in the form of an overall criminal scheme. Rather the guideline term
-5-
contemplates that there be sufficient similarity and temporal proximity to reasonably
suggest that repeated instances of criminal behavior constitute a pattern of criminal
conduct.’” United States v. Roederer, 11 F.3d 973, 979 (10th Cir. 1993) (quoting United
States v. Perdomo, 927 F.2d 111, 115 (2d Cir. 1991)). “Similarity, regularity, and
temporal proximity are the significant elements to be evaluated.” Id. (citing United States
v. Hahn, 960 F.2d 903 (9th Cir. 1992)); see also U.S.S.G. § 1B1.3 cmt. n.9(B).
After reviewing the record, we agree with the district court that the October 9
incident properly constitutes relevant conduct. On both occasions, Mr. Sago possessed
distribution-level quantities of crack cocaine and digital scales. Although Mr. Sago
initially argued that the October 9 evidence was as indicative of possession as
distribution, he now concedes that the drugs were held for distribution. Furthermore,
testimony by Bonita Williams and Michael Britton established that Mr. Sago was selling
cocaine with some regularity during at least a portion of the five months between the two
occurrences. Finally, we find unconvincing Mr. Sago’s argument that the five-month
period between the two occurrences requires a stronger showing of similarity or
regularity. While it is true that when one factor is absent “a stronger showing of at least
one of the other factors is required,” U.S.S.G. § 1B1.3 cmt. n.9(B), we find the five-
month break “insufficient to establish an interruption in his course of conduct.” United
States v. Moore, 130 F.3d 1414, 1419 (10th Cir. 1997) (holding sale of narcotics was
relevant conduct despite a six-month break between sales to undercover officers). Mr.
Sago’s contention that the two instances of conduct are unrelated is thus not persuasive.
-6-
Mr. Sago also contends that the district court erred in failing to make an express,
specific finding that the October 9 incident was part of the same course of conduct as the
offense of conviction. Mr. Sago failed to raise this issue before the district court;
therefore, we review for plain error. United States v. Mancera-Perez, 505 F.3d 1054,
1058 (10th Cir. 2007). “Plain error occurs when there is (1) error, (2) that is plain, which
(3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Lopez-Flores, 444 F.3d at 1222 (quotations
omitted). “Error is plain only if it is . . . contrary to well-settled law.” United States v.
Commanche, 577 F.3d 1261, 1270 (10th Cir. 2009) (quotations omitted).
Mr. Sago’s argument does not satisfy the first two prongs of plain-error review.
First, at the sentencing hearing the district court stated, “I do think the drugs from that
separate arrest are relevant and material for purposes of sentencing.” This statement on
the record sufficiently explains the district court’s decision to apply § 1B1.3.
Furthermore, we have never required that a district court make explicit findings on the
record concerning each factor in the same-course-of-conduct analysis. To the extent
other circuits suggest such a requirement, we cannot say that it is well-settled law in this
circuit. Compare United States v. Ortiz, 431 F.3d 1035, 1042–43 (7th Cir. 2005)
(requiring a district court to “explicitly state and support . . . the finding that the
unconvicted activities bore the necessary relation to the convicted offense”) (quotations
omitted) with Moore, 130 F.3d at 1417 (requiring only a “specific finding[] that the
offense is part of the same course of conduct or common scheme or plan”) (quotations
-7-
and alterations omitted). If Mr. Sago desired clarification as to the district court’s
reasoning behind its conclusion that the October 9 conduct was relevant conduct, he
should have raised the issue with the district court. The district court did not commit
plain error by failing to make a more specific and explicit finding regarding “course of
conduct.”
III. CONCLUSION
The district court properly considered the drugs found in Mr. Sago’s possession on
October 9, 2007, as relevant conduct for purposes of sentencing. We therefore AFFIRM
Mr. Sago’s sentence.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
-8-