United States v. Lucas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4024
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK ANTHONY LUCAS, a/k/a Ease Up,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-00794-TLW-1)
Submitted: August 26, 2009 Decided: October 7, 2009
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
T. Kirk Truslow, TRUSLOW LAW FIRM, LLC, North Myrtle Beach,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Carrie A. Fisher, Alfred W. Bethea, Assistant United
States Attorneys, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Anthony Lucas was convicted by a jury of
possession with intent to distribute five grams or more of
cocaine base (crack), 21 U.S.C. § 841(a), (b)(1)(B) (2006)
(Count 1); using and carrying a firearm during and in relation
to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A) (2006)
(Count 2), and possession of a firearm by a convicted felon, 18
U.S.C. § 922(g)(1) (2006) (Count 3). He received a total
sentence of 324 months imprisonment for Counts 1 and 3, with a
sixty-month consecutive sentence for Count 2. Lucas appeals his
sentence, contending that the district court erred in finding
that his prior drug activity constituted relevant conduct under
U.S. Sentencing Guidelines Manual § 1B1.3(a) (2008). We affirm.
Lucas sold 1.5 grams of marijuana to a confidential
informant in July 2005. A search warrant was executed at his
home. When the officers entered, Lucas was exiting the kitchen
where powder cocaine was being cooked into crack. Twelve bags
of marijuana packaged for sale were recovered, as well as a .357
Magnum revolver that was found under Lucas’ mattress. After
federal charges were brought against Lucas, investigators
interviewed six persons who described crack and marijuana
transactions with him going back to the early 1990’s. One
witness testified at Lucas’ trial. Information from all six was
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used to calculate the quantity of crack attributable to Lucas
for sentencing purposes.
“When a defendant has committed multiple offenses
similar to the charged offense, all conduct that is ‘part of the
same course of conduct or common scheme or plan as the offense
of conviction’ constitutes relevant conduct” under USSG
§ 1B1.3(a)(2). United States v. Hodge, 354 F.3d 305, 312-13
(4th Cir. 2004) (quoting USSG § 1B1.3(a)(2)); see also United
States v. Dugger, 485 F.3d 236, 241-42 (4th Cir. 2007) (same).
Application Note 9(B) to § 1B1.3 provides that prior offenses
are 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.” Hodge, 354 F.3d at 313. Criminal acts may be
part of the same course of conduct even if they do not involve
common participants and are not connected by an overall scheme.
Id. Factors to be considered in determining whether offenses
are 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.” Id.(quoting Application Note 9(B)). The sentencing court’s
determination that prior drug activity constituted relevant
conduct because it was part of the same course of conduct as the
offense of conviction is reviewed for clear error. Id.3
Lucas correctly asserts that the instant offense and
his prior drug activity were not part of a common scheme or
plan. USSG § 1B1.3, comment. (n.9(A)). He also argues that his
prior conduct was not part of the same course of conduct as the
instant offense because he was not convicted of conspiracy and,
with respect to each witness’ statement, he claims that “[t]he
offense of conviction was possession of drugs,” while the prior
“activity [was] drug transacting” which was unconnected to the
instant offense. In fact, Lucas’ current offense is possession
with intent to distribute, not simple possession. He was in the
act of cooking powder cocaine into crack when the search was
executed at his home and bags of marijuana packaged for sale
were also found in his home. These facts show a high degree of
similarity between his current offense and his prior drug
activity, which involved sale of both crack and marijuana.
Lucas argues that, taking each witness separately,
there was little regularity (number of repetitions) in his
dealings with each of them, and there was often a considerable
lapse of time between his various transactions with them. In
addition, most of the prior drug transactions were remote in
time from the instant offense. However, the evidence of Lucas’
prior drug activities established that he consistently bought
and sold cocaine, crack, and marijuana over a ten-to-fifteen
year period in Hartsville and the surrounding county.
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Not all prior drug activity is necessarily relevant
conduct. See Dugger, 485 F.3d at 241-42 (defendant’s
involvement in scheme to sell marijuana and Xanax while in
detention for crack distribution was not relevant conduct
because of lack of continuity or similarity between conduct in
detention and pre-detention crack sales, which occurred a year
earlier). However, here, the offense of conviction was exactly
the same kind of conduct as the prior drug activity described by
the witnesses. Therefore, the district court did not clearly
err in finding that the offense of conviction was part of the
same course of conduct as Lucas’ prior drug activity.
We therefore affirm the sentence imposed by the
district court. 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
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