UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4329

NESTOR CAMPOS-ALONZO, a/k/a

Roberto Martinez Vega,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Frank W. Bullock, Jr., District Judge.

(CR-02-281-1)

Submitted: August 28, 2003

Decided: September 12, 2003

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Louis C. Allen, III, Federal Public Defender, William S. Trivette,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, Angela H.

Miller, Assistant United States Attorney, Greensboro, North Carolina,

for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Nestor Campos-Alonzo pled guilty to possession of a firearm by an

illegal alien, 18 U.S.C. § 922(g)(5) (2000) (Count One), and reentry

by a deported alien previously convicted of an aggravated felony, 8

U.S.C. § 1326(a), (b)(2) (2000) (Count Two), and was sentenced to

a term of 140 months imprisonment. Campos-Alonzo challenges the

district court’s determination of his base offense level under U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (2002), arguing that the district court failed to conduct an analysis of his two prior felony drug

offenses that complied with United States v. Breckenridge, 93 F.3d

132 (4th Cir. 1996). We affirm. 

Guideline section 2K2.4(a)(2) provides an enhanced base offense

level of 24 for a defendant convicted of a federal firearm offense who

has two prior felony convictions for either a crime of violence or a

controlled substance offense. Campos-Alonzo had been convicted in

1997 of two felony drug offenses. The first resulted from a search

warrant executed at his home in North Garden, Albemarle County,

Virginia, on October 30, 1997, during which cocaine, marijuana, and

three firearms were seized by investigators of the Jefferson Area Drug

Task Force. An arrest warrant was issued for Campos-Alonzo and, on

November 28, 1997, investigators received information that he would

be conducting a drug transaction at an intersection on Route 29 in

Nelson County, Virginia. Campos-Alonzo was arrested there with

several other persons and gave as his residence an address in Danville, Virginia. He was prosecuted separately in each county, pleading

guilty in Albemarle County to "felony distribute cocaine," and in Nelson County to a felony cocaine charge, a misdemeanor marijuana

charge, and a firearms offense. The Nelson County sentence was

imposed three months after the Albemarle County sentence and was

made concurrent with it. After serving his active sentence, CamposAlonzo was deported to Mexico in July 2000. He returned a few

2 UNITED STATES v. CAMPOS-ALONZO
months later to live with his family in Danville, Virginia. CamposAlonzo was arrested in North Carolina in July 2002 in possession of

crack cocaine and a firearm, which resulted in his prosecution for the

instant offenses. 

To calculate Campos-Alonzo’s guideline range, the probation officer placed each count in a separate group and, for Count One, recommended a base offense level of 24 under USSG § 2K2.1(a)(2).

Campos-Alonzo objected that the predicate offenses (listed in ¶ 44

and ¶ 45 of the presentence report) were "related cases" which should

be counted as one offense for criminal history purposes under USSG

§ 4A1.2, comment. (n.3) because they were part of a common scheme

or plan and would have been consolidated for trial and sentencing but

for an "accident of geography," i.e., that the offenses occurred in different counties. See United States v. Breckenridge, 93 F.3d 132 (4th

Cir. 1996) (setting out test for determining whether prior offenses are

related under § 4A1.2 as part of a common scheme or plan). 

Application Note 5 to § 2K2.1 provides that the guideline uses the

definition of "controlled substance offense" that is given in § 4B1.2

(Definitions of Terms Used in § 4B1.1). Application Note 3 to

§ 4B1.2 provides that the provisions of § 4A1.2 are applicable to the

counting of convictions under § 4B1.1. "Related cases" are defined in

Application Note 3 to § 4A1.2 as those resulting from "offenses that

(A) occurred on the same occasion, (B) were part of a single common

scheme or plan, or (C) were consolidated for trial or sentencing."

Convictions in "related cases" are treated as one prior offense in

determining both criminal history points and career offender status. In

the context of § 2K2.1, prior offenses in related cases are considered

as one offense in determining whether the enhanced base offense

level in subsection (a)(2) should apply. 

Campos-Alonzo argued in his sentencing memorandum that his

1997 drug offenses were part of a common scheme or plan because

(1) they occurred within a short period of time, i.e., the second one

occurred one month after the search warrant was executed at his

house in North Garden, (2) both involved cocaine, marijuana, and

firearms, (3) both were investigated by the same detective of the Jefferson Area Drug Task Force, and (4) the two offenses would have

UNITED STATES v. CAMPOS-ALONZO 3
been consolidated but for the "accident of geography" that they were

committed in different counties. 

The district court held that the October 30 and November 28 drug

offenses were not part of a common scheme or plan because they

involved "different drugs and different firearms," and were "committed in different counties at a different time, 29 days apart." The court

noted that it did not know how the cases would have proceeded in

state court had they been committed in the same county. The court

adopted the guideline calculation recommended in the presentence

report and imposed a sentence of 120 months (the statutory maximum) for Count One and a concurrent sentence of 140 months (the

minimum under the guideline range) for Count Two. 

Campos-Alonzo argues on appeal that the district court failed to

apply the Breckenridge test when it determined that his prior drug

offenses were not related. The relevant factors for determining

whether prior offenses were part of a common scheme or plan are:

whether (1) the crimes were committed within a short period of time,

(2) in close geographic proximity, (3) involved the same substantive

offense, (4) were directed at a common victim, (5) were solved during

the course of a single criminal investigation, (6) shared a similar

modus operandi, (7) were animated by the same motive, and (8) were

tried and sentenced separately only because of an accident of geography. Breckenridge, 93 F.3d at 138. Not all the factors must be present

for a finding of a common scheme or plan. Id. Temporal and geographic proximity are significant, but not determinative. Id. The same

is true of a common motive or a single police investigation, unless the

investigation targeted the defendant. Id. The fact that the defendant

received concurrent sentences does not make separate offenses

related, but the fact that the offenses were substantively similar may

be significant. 

The district court did not address each factor set out in Breckenridge, but mentioned those it found to be most significant: the lack of

geographical and temporal proximity and the fact that it could not be

certain whether the cases would have been consolidated in state court

had they occurred in the same county. Implicit in the court’s findings

is its belief that Campos-Alonzo had not met the test set out in Breckenridge. We conclude that the court’s findings were adequate. United

4 UNITED STATES v. CAMPOS-ALONZO
States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) ("A court need not

engage in ritualistic incantation in order to establish its consideration

of a legal issue. It is sufficient if . . . the district court rules on issues

that have been fully presented for determination. Consideration is

implicit in the court’s ultimate ruling."). 

Moreover, the defendant has the burden of proving the existence of

a common scheme. United States v. Joy, 192 F.3d 761, 771 (7th Cir.

1999); United States v. Cowart, 90 F.3d 154, 159 (6th Cir. 1996). The

district court’s determination as to whether prior offenses were part

of a common scheme or plan is reviewed for clear error. United States

v. Rivers, 929 F.2d 136, 140 (4th Cir. 1991). While this is a close

case, we conclude that Campos-Alonzo failed to meet his burden.

More information about Campos-Alonzo’s prior drug activity would

have assisted the district court, but because none was forthcoming the

court was limited to what could be gleaned from the search warrant

and arrest warrant submitted by defense counsel. 

A number of the relevant factors support the district court’s finding

that Campos-Alonzo failed to show a common scheme or plan. First,

although the term "short period of time" has not been defined, we are

satisfied that the district court did not clearly err in finding that

Campos-Alonzo’s two drug offenses, separated by twenty-nine days,

were not committed within a short period of time. In Breckenridge,

the defendant averaged more than one burglary per week. See 93 F.3d

at 134, 138 (six burglaries committed within one month were committed in a short period of time). Similarly, "close geographic proximity"

may be interpreted in various ways. However, Campos-Alonzo’s two

offenses were not committed across the street from each other (as was

more or less the case in Breckenridge, see 93 F.3d at 134-35 & n.2),

but at least thirteen miles apart. We cannot say that district court

clearly erred in finding that this did not amount to close geographical

proximity. 

Lacking specific information about the offenses, the court did not

make a finding on whether they involved a similar modus operandi.

Notably, Campos-Alonzo did not offer any information or argument

on this point in his sentencing memorandum or at sentencing. We are

thus reluctant to say that this factor weighs in his favor. The court also

did not decide whether both offenses were committed for the same

UNITED STATES v. CAMPOS-ALONZO 5
motive, which Campos-Alonzo identified as "profit" in his sentencing

memorandum. Because profit is almost always the motive for drug

crimes, this factor also does not weigh in favor of finding a common

scheme or plan in the absence of other evidence linking the two

offenses. 

Finally, on the information available at sentencing, it was not possible for the court to determine whether, had the two offenses been

committed in the same county, they would have been consolidated for

trial or sentencing. See Breckenridge, 93 F.3d at 137-38 (under Virginia law, offenses may be charged together only if they were connected or constituted parts of a common scheme or plan, i.e., (1) the

offenses were intimately connected or (2) the relationship between the

offenses was dependent on the existence of a plan that tied the

offenses together and demonstrated that the objective of each offense

was to contribute to the achievement of a goal not attainable by the

commission of any of the individual offenses) (internal quotations and

citations omitted). Because Campos-Alonzo provided no information

to assist the district court in deciding this question, we cannot conclude that it aids his argument. 

Other factors do support Campos-Alonzo’s argument. The offenses

involved the same substantive offense, were directed at a common

victim: society, see, e.g., United States v. Cordo, 324 F.3d 223, 229

(3d Cir. 2003), and were solved as the result of a single investigation.

However, on balance, we are convinced that the district court’s factual finding that the two offenses were not part of a common scheme

or plan was not clearly erroneous. Consequently, the district court

properly applied a base offense level of 24 under § 2K2.1(a)(2).

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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