United States v. Garrett

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4255
LA DON GARRETT,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CR-01-56)
Submitted: August 16, 2002
Decided: October 7, 2002
Before WILKINS, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James M. Pool, LAW OFFICES OF JAMES M. POOL, Clarksburg,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Robert H. McWilliams, Jr., Assistant United States Attor-
ney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GARRETT
OPINION
PER CURIAM:
La Don Garrett pled guilty to distributing .48 grams of crack in
violation of 21 U.S.C. § 841 (2000), and was sentenced to a term of
sixty-three months imprisonment. Garrett appeals his sentence, con-
tending that the district court erred when it included two sales of
crack in his relevant conduct even though the sales occurred after his
guilty plea and more than a year after the offense of conviction. We
affirm.
Garrett sold crack to confidential informants on July 13, July 20,
and September 30, 2000, in Clarksburg, West Virginia. In October
2001, he was charged in a one-count information with the July 20
sale. He stipulated in his plea agreement that his relevant conduct
included the crack he sold on all three dates, a total of 1.278 grams.
After his guilty plea, Garrett was released on bond and in December
2001 he sold crack twice more to a confidential informant in Fair-
mont, West Virginia, not far from Clarksburg. At his sentencing, the
district court found that the December 2001 sales were part of the
same course of conduct and added those amounts, totaling .78 grams,
to Garrett’s relevant conduct. As a result, Garrett’s base offense level
increased from 18 to 20.
Garrett argues on appeal that the district court erred in finding that
the 2001 crack sales were part of the same course of conduct. U.S.
Sentencing Guidelines Manual §§ 1B1.3, 2D1.1 (2001). When the
facts are undisputed, the district court’s ruling on a disputed issue is
a legal one, and the standard of review is de novo. United States v.
Butner, 277 F.3d 481, 488 (4th Cir.), cert. denied, 122 S. Ct. 2610(2002). For drug offenses, all conduct that is "part of the same course
of conduct or common scheme or plan as the offense of conviction"
constitutes relevant conduct. USSG § 1B1.3(a)(2).
This court uses a single test for determining whether conduct out-
side the count of conviction is part of the same course of conduct or
a common scheme or plan. United States v. Pauley, 289 F.3d 254, 259
(4th Cir. 2002); United States v. Mullins, 971 F.2d 1138, 1144 (4th
Cir. 1992). This test directs the sentencing court to look to: the nature
UNITED STATES v. GARRETT 3
of the defendant’s acts, his role, and the number and frequency of rep-
etitions of his acts, to determine whether they indicate a pattern of
behavior. The important factors are the "similarity, regularity, and
temporal proximity between the offense of conviction and the
uncharged conduct." Pauley, 289 F.3d at 259. The district court
should "look for a stronger presence of at least one of the components
if one of the components is not present at all." Id.Here, the district court found that all of Garrett’s crack sales were
part of an ongoing series of offenses, i.e., part of the same course of
conduct. The record contains little information about Garrett’s drug
activities beyond the bare fact that he made the various sales. How-
ever, this information was enough to establish a regular pattern of
crack sales by Garrett in the Clarksburg area.
Garrett argues that the length of the interval between the sale in
September 2000 and his post-plea sales in December 2001 precludes
a finding that the December 2001 sales were relevant conduct. While
there is a significant lapse of time between the 2000 and 2001 sales,
as in Pauley, Garrett’s repetitive conduct weighs in favor of the dis-
trict court’s finding that he was engaged in an ongoing series of
offenses. USSG § 1B1.3, (n.9(B)) (same course of conduct). Garrett
relies on United States v. Hill, 79 F.3d 1477, 1480-85 (6th Cir. 1996)
(holding that where nineteen-month gap separated two isolated sales
of different quantities of cocaine, government had not proved regular-
ity, temporal proximity, or similarity); United States v. Russell, 76
F.3d 808, 812-13 (6th Cir. 1996) (holding that defendant’s conduct in
drug offense four months after drug sales for which he was convicted
was not in furtherance of criminal activity that occurred during
offense of conviction); and United States v. Hahn, 960 F.2d 903, 909-
10 (9th Cir. 1992) (remanding for findings concerning evidence of
similarity and regularity given five-month gap between offense of
conviction and prior drug sales). However, as the district court found,
Garrett’s offenses were similar as well as repetitive. Thus, two of the
three significant factors were present.
Garrett argues that the sales were not similar because the 2000
sales were made at the homes of the confidential informants while the
2001 sales were made in a restaurant parking lot in the next county.
We do not find this slight difference to be significant. Given the lim-
4 UNITED STATES v. GARRETT
ited information available, the district court did not err in concluding
that the 2001 sales were part of the same course of conduct as the pre-
vious sales.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED