United States v. Randolph Buchanon , 299 F. App'x 903 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11319 ELEVENTH CIRCUIT
November 7, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00064-CR-FTM-34-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDOLPH BUCHANON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 7, 2008)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Randolph Buchanon appeals his sentence, imposed following a guilty plea,
for possession with intent to distribute in May 2007 five grams or more of cocaine
base, also known as crack cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii).
Buchanon asserts the district court incorrectly calculated his base offense level
pursuant to U.S.S.G. § 1B1.3 by finding “relevant conduct” between the charged
offense and a subsequent drug offense in September 2007. Buchanon contends
the two offenses lacked distinctive similarities, temporal proximity, and regularity.
At sentencing the district court found the May and September incidents were
sufficiently similar because they involved (1) the same substance, (2) an intent to
distribute in part by the amount and lack of any paraphernalia for use, (3) lack of
acknowledgment by Buchanon that he uses or ever used crack cocaine, and
(4) substances that were both concealed in vehicles. The court found that “five
months does not, to the Court, appear to be entirely remote or too remote to
consider it as temporally proximate.” As for regularity, the court found, “[t]here
isn’t any indication of regularity” other than two occasions in which law
enforcement found cocaine base on Buchanon which “indicates some regularity.”
2
The district court sentenced Buchanon to 75 months imprisonment and five years
of supervised release.1
This Court reviews “the sentencing court’s findings of fact for clear error
and review the application of the Sentencing Guidelines to the facts de novo.”
United States v. Blanc, 146 F.3d 847, 851 (11th Cir. 1998). We review for clear
error “the district court’s factual findings regarding whether two [offenses] at issue
in this sentencing involved the same course of conduct.” Id.Under U.S.S.G. § 1B1.3, the district court must consider all “relevant
conduct” when calculating the 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 . . . as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). Offenses may
“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 part of a single
episode, spree, or ongoing series of offenses.” U.S.S.G. § 1B1.3, comment. (n.9).
1
The district court also stated it would have imposed the same sentence if the September
incident were not relevant conduct:
I also think I should say that even if the Court were to have concluded that the 2.1 grams
of crack cocaine from the September arrest were not relevant conduct, based upon all of
the factors in this case, the Court would still be of the view that any sentence less than
75 months would be insufficient. And therefore, I think I would still be at the same
place, which is that 75 months is the term of imprisonment that is necessary to comply
with the purposes of sentencing in this matter.
3
The district court evaluates the “similarity, regularity, and temporal
proximity” between the two offenses and “must consider whether there are
distinctive similarities between the offense of conviction and the remote conduct
that signal that they are part of a single course of conduct rather than isolated,
unrelated events that happen only to be similar in kind.” United States v. Maxwell,
34 F.3d 1006, 1011 (11th Cir. 1994) (quotation omitted). “Where one of these
factors is absent, ‘a stronger presence of at least one of the other factors is
required.’” Blanc, 146 F.3d at 852 (quoting U.S.S.G. § 1B1.3 comment. (n.9)).
“Distinctive similarities” are more than general abstractions of the conduct.
For instance, in Maxwell we held that a cocaine distribution scheme was not
“related conduct” to a dilaudid distribution conviction because they did not involve
any of the same parties or drugs. Maxwell, 34 F.3d at 1011. The only similarity
between the two distribution schemes was that “they both involve[d] drug
distribution” in the general sense. Id. We held that “to describe [the defendant’s]
conduct at such a level of generality . . . eviscerate[s] the evaluation of whether
uncharged criminal activity is part of the same course of conduct.” Id. (quotation
omitted).
In this case, the district court found that there was no “indication of
regularity” or if there was it was minimal. Thus, in order to find relevant conduct
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between the two offenses, there must be a stronger showing of either similarity or
temporal proximity. The stronger showing is with similarity.
The May 2007 and September 2007 offenses have more distinct similarities
than both being involved in “drug distribution.” The two offenses both involved
cocaine base, an intent to distribute, lack of any drug paraphernalia, and
concealment of the substance in vehicles rather than on Buchanon himself. See
Maxwell, 34 F.3d at 1011. These similarities show more than a generic level of
likeness, as required by Maxwell. Therefore, the district court did not commit clear
error in finding distinctive similarities between the two offenses. And as for
temporal proximity, we have never held that a five-month separation between two
offenses is too remote in time. Thus the district court did not clearly err in finding
temporal proximity between the two offenses.2
Based upon the foregoing and our review of the record and the briefs, we
affirm Buchanon’s sentence.
AFFIRMED.
2
We also find the district court’s sentence of 75 months’ imprisonment and five years of
supervised release was substantively reasonable. Gall v. United States, 552 U.S. ___, 128 S. Ct.
586, 597 (2007); United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).
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