IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10502

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CURTIS ONEAL RHINE

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before WIENER, GARZA, and ELROD, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Curtis Oneal Rhine was convicted, based on his plea

of guilty without a plea agreement, on one count of possession with intent to

distribute 1.89 grams of cocaine base and one count of felon in possession of a

firearm. Rhine now appeals his sentence, contending that the district court

clearly erred when it determined that his earlier drug-related activity was

relevant conduct for sentencing purposes. Convinced that Rhine’s earlier

conduct cannot properly be considered relevant conduct for his sentencing on the

offense of conviction, we reverse and remand for re-sentencing. 

United States Court of Appeals

Fifth Circuit

F I L E D

September 29, 2009

Charles R. Fulbruge III

Clerk
No. 08-10502

 The officer released the other passenger, Lavell Buchanan, at the scene without

1

charging her.

 Moore, who was only charged in Count 2 of the indictment, also pleaded guilty without

2

a plea agreement. He is not a party to this appeal.

2

I. FACTS AND PROCEEDINGS

A. The Offense of Conviction

Late in October 2007, a Fort Worth police officer conducted a routine

traffic stop of a vehicle in which Rhine was occupying the front passenger seat.

There were two other individuals in the vehicle at the time of the stop: Algie

Deon Moore, the driver, and Lavell Buchanan, a female passenger seated in the

rear. When the officer smelled marijuana in the vehicle, he asked Rhine

whether he had been smoking. When Rhine replied that he had smoked

marijuana earlier that evening, the officer asked him to step out of the vehicle.

After a background check revealed that Rhine had several outstanding

warrants for his arrest, the officer took him into custody and conducted a search

of the vehicle, discovering two firearms under the passenger seat where Rhine,

a convicted felon, had been seated. The officer then took both Rhine and Moore

— also a convicted felon — to the Fort Worth city jail, where an intake search

revealed a small plastic bag containing 1.89 grams of cocaine base (crack

cocaine) concealed in Rhine’s anal cavity.

1

The grand jury returned a two-count indictment charging Rhine with (1)

possession with intent to distribute 1.89 grams of cocaine base, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(C) (“Count 1"), and (2) possession of a firearm by a

felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(1), and (a)(2) (“Count 2").

Rhine pleaded guilty to both counts without a plea agreement. 

2

B. The “Fish Bowl” Drug-Trafficking Ring

In May 2006 — approximately 17 months before Rhine’s arrest for the

instant drug offense — an ongoing FBI investigation known as the “Fish Bowl”
No. 08-10502

 The term “Fish Bowl” refers to a small neighborhood about three miles southeast of 3

downtown Fort Worth, bordering the western edge of Cobb Park. According to police, a street

gang controlled the neighborhood by keeping the only two entrances surrounded by lookouts,

making it difficult for police to conduct a surprise raid.

In these statements, the individuals assisting in the investigation commonly refer to 4

Rhine only by his street name — “Pushead,” or “Pus Head.” One individual, however, stated

that he had purchased three to four kilograms of crack cocaine from someone he knew only as

“Pumpkin Head.” As there was no other mention of a “Pumpkin Head” in connection with the

investigation, SA Coffindaffer assumed that this individual was referring to Rhine.

Although Rhine stated that he had been released from prison on parole in 2005, 5

records from the Texas Department of Criminal Justice indicate that he was in fact released

on October 11, 2004.

3

investigation culminated in a large-scale drug raid in Fort Worth, Texas. The

raid resulted in the indictments of more than 30 individuals for a variety of

criminal offenses, most of which involved drug trafficking. After conducting 3

post-arrest interviews with many of the individuals apprehended during the

raid, FBI Special Agent J. Coffindaffer (“SA Coffindaffer”) reported that several

individuals had implicated Rhine in the criminal drug activity. As agents were 4

unsuccessful in completing a controlled drug buy from Rhine, he was not charged

along with the other Fish Bowl participants.

After Rhine’s arrest in the instant case, SA Coffindaffer reinitiated his

investigation into Rhine’s participation in the Fish Bowl drug-trafficking ring.

SA Coffindaffer first interviewed Rhine, who stated that he had moved into his

mother’s house several months after the Fish Bowl arrests to “lay low” and to

avoid getting in trouble. Rhine said that he had been unemployed since his

release from state prison in 2005, yet was unable to explain how he had

supported himself, his children, or his drug habit during that time. Rhine 5

further claimed that he had not sold any narcotics or possessed any guns since

his 2005 release. According to Rhine, the guns found during the search of the

vehicle had belonged to Moore, even though Rhine acknowledged that his

fingerprints might be found on one of the firearms because he had loaded it.
No. 08-10502

4

Rhine also stated that both he and Moore had first met Buchanan, a crackcocaine user, when they picked her up from a service station shortly before their

arrest.

After interviewing Rhine, SA Coffindaffer conducted a series of follow-up

interviews with the individuals who had initially implicated Rhine in the Fish

Bowl drug-trafficking ring, questioning them about their experiences with Rhine

before the Fish Bowl raid and their ensuing arrests. One informant indicated

that he had purchased approximately 15 grams of cocaine base from Rhine on

a single occasion; another indicated that he had received approximately 62

grams of cocaine base from Rhine every week for almost three months; and a

third indicated that he had regularly cooked between five and six kilograms of

powder cocaine into crack cocaine for Rhine over a period of several months.

According to these informants, Rhine was one of the primary, large-scale

suppliers of crack cocaine to the mid-level Fish Bowl dealers prior to the FBI

raid.

SA Coffindaffer also interviewed Lavell Buchanan, the passenger seated

in the back of Moore’s vehicle at the time of Rhine’s arrest. Buchanan stated

that she had initially walked to a service station to purchase beer but decided

to purchase crack cocaine instead when she learned that Rhine and Moore were

selling it from a dark-colored van in the parking lot. According to Buchanan, she

did not know either Rhine or Moore before that meeting, during which she had

agreed to purchase five dollars of crack cocaine from them. Buchanan stated

that she, Rhine, and Moore were driving to her apartment to complete the

transaction when police stopped them.

C. The Pre-Sentence Report

After reviewing the entire record and the statements made to SA

Coffindaffer, the probation officer who compiled the Pre-Sentence Report (“PSR”)

concluded that Rhine’s earlier drug-related activities were relevant conduct for
No. 08-10502

 Although the Guidelines indicated a sentencing range of up to 365 months, the

6

maximum sentence for Count 1 is limited by statute to 240 months and the maximum

sentence for Count 2 is limited to 120 months, thus providing for a maximum statutory

sentence of no more than 360 months if imposed to run consecutively.

 U.S.S.G. § 5G1.2(d) (2007) (“If the sentence imposed on the count carrying the highest

7

statutory maximum is less than the total punishment, then the sentence imposed on one or

more of the other counts shall run consecutively, but only to the extent necessary to produce

a combined sentence equal to the total punishment.”).

5

sentencing purposes. Specifically, the probation officer deduced that Rhine’s

alleged participation in the Fish Bowl drug-trafficking ring was “all part of the

same course of conduct or common scheme [or] plan as the offense of conviction.”

To determine the total amount of drugs involved in this relevant conduct,

the probation officer credited the testimony of the informant who had stated that

he had regularly cooked between five and six kilograms of powder cocaine into

crack cocaine for Rhine over a period of several months. Basing her calculations

on this information, the probation officer concluded that Rhine had possessed at

least 4.5 kilograms of crack cocaine during the course of his alleged participation

in the Fish Bowl drug-trafficking operations — a figure that, according to the

probation officer, represented a “very conservative estimate” that she made to

avoid double-counting drug amounts.

Pursuant to the United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) Section 2D1.1, the probation officer calculated Rhine’s Base Offense

Level to be 38. Factoring in Rhine’s acceptance of responsibility, his criminal

history record, and his possession of a firearm during commission of the offense,

the probation officer determined that Rhine’s Total Offense Level was 37 with

a Criminal History Category of IV, producing a Guidelines range of 292 to 365

months imprisonment. The Guidelines called for Rhine’s sentences on Counts 6

1 and 2 to be imposed consecutively, but only to the extent necessary to produce

a combined sentence equal to his total maximum punishment.7
No. 08-10502

 In addition, Rhine was also arrested twice in connection with other drug-related

8

offenses, although these arrests did not lead to convictions: (1) In 1993, he was arrested for

possession of crack cocaine; and (2) in 1998, he was arrested for possession of marijuana.

6

Rhine timely filed an objection to the PSR. His primary objection was to

the conclusion that his alleged participation in the Fish Bowl drug-trafficking

ring was relevant conduct for sentencing on his offense of conviction. Rhine

insisted that any participation in the Fish Bowl incident was neither part of a

common scheme or plan nor part of the same course of conduct as the instant

behavior. Rhine contended that the activities not only lacked common

accomplices, common victims, a common purpose, or a common modus operandi,

but also showed no evidence of temporal proximity, similarity, or regularity.

Rhine also objected to the PSR’s consideration of facts that were neither

admitted by him nor found beyond a reasonable doubt by a jury, contending that

the court would violate his Sixth Amendment rights by increasing his sentence

based on such information.

In response to Rhine’s objections, the probation officer filed an Addendum

to the PSR, in which she declined to credit the objections or amend her

Guidelines calculations. Insisting that Rhine’s earlier drug-related activities

were relevant conduct, the probation officer voiced the opinion that Rhine “has

participated in drug-related activities since at least 1993.” In particular, the

probation officer cited Rhine’s three pre-Fish Bowl convictions for drug-related

crimes, noting that (1) in 1993, Rhine pleaded guilty to possession of crack

cocaine with intent to deliver, (2) in 1999, he pleaded guilty to possession of

marijuana, and (3) in 2002, he pleaded guilty to possession of a controlled

substance. Despite having no direct evidence that Rhine had engaged in any 8

criminal activity — much less drug activity — between May 2006 and October

2007, the probation officer nevertheless found persuasive the absence of

“evidence that [he] completely removed himself from that type of lifestyle.”
No. 08-10502

7

According to the probation officer, Rhine likely would have been distributing a

large volume of drugs over that period if not for “the fact that most of the larger

scale dealers had already been arrested for, and convicted of, federal drug

violations.” Declining to credit Rhine’s move into his mother’s house to “lay low”

as a voluntary departure from crime, the probation officer instead surmised that

Rhine had silently harbored intentions to “resume his drug trafficking

activities.” The probation officer concluded that Rhine’s participation in the Fish

Bowl drug-trafficking ring and his offense of conviction were all part of the same

course of conduct or common scheme or plan. 

Rhine timely objected to the Addendum, again asserting that his alleged

participation in the Fish Bowl drug-trafficking ring was not relevant conduct for

purposes of sentencing on the offense of conviction.

D. Sentencing

The district court adopted the findings of the PSR and the Addendum,

overruling Rhine’s objections to both. The court said that “all of the transactions

that were taken into account by the probation officer were sufficiently connected

or related to each other to warrant the conclusion that they were a part of a

single episode or spree or ongoing series of offenses.” Despite the absence of any

record evidence, either direct or circumstantial, that Rhine had dealt drugs since

the end of the Fish Bowl operations, the government stated on the record that

there was no indication that Rhine had stopped selling drugs in the period

between the Fish Bowl arrests and his offense of conviction. The court explained

that it had taken this into consideration in making its relevant-conduct

determination. The court then overruled Rhine’s other objections, including his

contention that the Sixth Amendment prevented the court from increasing his

sentencing range based on facts that were neither admitted by him nor found by

a jury.
No. 08-10502

 United States v. Peterson, 101 F.3d 375, 384 (5th Cir. 1996). 9

United States v. Hinojosa, 484 F.3d 337, 340 (5th Cir. 2007) (internal quotation 10

marks and citation omitted); see United States v. Wall, 180 F.3d 641, 644 (5th Cir. 1999) (“A

district court’s determination of what constitutes relevant conduct for purposes of sentencing

is reviewed for clear error.”); United States v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993)

(“[S]pecific factual findings regarding relevant conduct are reviewed on appeal only for clear

error.”).

United States v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991). 11

 U.S.S.G. § 2D1.1. 12

8

Adopting the Guidelines calculations set forth in the PSR, the district

court sentenced Rhine to the statutory maximum period of imprisonment — 240

months as to Count 1 and 120 months as to Count 2, to run consecutively. 

Rhine timely appealed his sentence. He now urges that (1) the district

court committed clear error by characterizing his earlier drug-related activities

as relevant conduct for sentencing purposes, and (2) even if those activities were

relevant conduct, the court violated his Sixth Amendment rights by increasing

his sentence based on facts neither admitted by Rhine nor proved beyond a

reasonable doubt to a jury.

II. ANALYSIS

A. Standard of Review

A district court’s interpretation and application of the Guidelines is

reviewed de novo and its factual determinations are reviewed for clear error.9

“A finding by the district court that unadjudicated conduct is part of the same

course of conduct or common scheme or plan is a factual determination subject

to review . . . under the clearly erroneous standard.” “A factual finding is not 10

clearly erroneous as long as it is plausible in light of the record as a whole.”11

B. Relevant Conduct

A defendant convicted of a drug offense is sentenced based on the amount

of drugs involved in the offense. In calculating a defendant’s base offense level, 12
No. 08-10502

United States v. Moore, 927 F.2d 825, 827 (5th Cir. 1991) (quoting United States v.

13

Mir, 919 F.2d 940, 943 (5th Cir. 1990)) (internal quotation marks omitted); see id. (“To be

considered as relevant conduct, drug related offenses need not result in the defendant’s

conviction.”); United States v. Edwards, 911 F.2d 1031, 1033 (5th Cir. 1990) (“The district

court can consider a broad range of conduct in assessing a defendant’s offense level under the

guidelines and is not limited solely to the conduct for which the defendant is being

sentenced.”).

Wall, 180 F.3d at 644-45. 14

Bryant, 991 F.2d at 177. 15

 U.S.S.G. § 1B1.3, cmt. n.9(A). 16

9

the district court may consider other offenses in addition to the acts underlying

the offense of conviction, as long as those offenses constitute “relevant conduct”

as defined in the Guidelines. As we have recognized, “the base offense level can

reflect quantities of drugs not specified in the count of conviction if they were

part of the same course of conduct or part of a common scheme or plan as the

count of conviction.” The defendant need not have been convicted of, or even 13

charged with, the other offenses for them to be considered relevant conduct for

sentencing purposes. In drug distribution cases, we have “broadly defined 14

what constitutes the ‘same course of conduct’ or ‘common scheme or plan.’”15

With this in mind, we now address whether Rhine’s alleged participation in the

Fish Bowl drug-trafficking ring and his offense of conviction are part of (1) a

common scheme or plan, or (2) the same course of conduct.

1. Common Scheme or Plan

A separate, unadjudicated offense may be part of a common scheme or

plan — and thus relevant conduct — if it is “substantially connected to [the

offense of conviction] by at least one common factor, such as common victims,

common accomplices, common purpose, or similar modus operandi.” Several 16

courts have concluded that, for two offenses to be considered part of a common

scheme or plan, the acts “must be connected together by common participants
No. 08-10502

See United States v. Hill, 79 F.3d 1477, 1482 (6th Cir. 1996) (collecting cases) 17

(internal quotation marks omitted).

Wall, 180 F.3d at 645. 18

See United States v. Culverhouse, 507 F.3d 888, 895 (5th Cir. 2007) (holding that two 19

offenses were not part of a common scheme or plan when the offenses could only “be connected

by . . . the most general of purposes, in that they both involved methamphetamine”).

10

or an overall scheme.” In United States v. Wall, we ruled that two offenses 17

were not part of a common scheme or plan because (1) the offenses did not share

any common accomplices, (2) there was no common modus operandi, as the

earlier offense involved a small amount of marijuana and the later offense

involved large quantities of marijuana concealed in pick-up trucks, and (3) the

only common purpose between the offenses was “importing marijuana for

distribution in the United States,” which was, by itself, insufficient to establish

a common scheme or plan.18

We conclude that Rhine’s participation in the Fish Bowl drug-trafficking

ring and his offense of conviction cannot be considered part of a common scheme

or plan. There is no evidence that Moore, Rhine’s only accomplice in his offense

of conviction, played any role in the Fish Bowl drug-trafficking ring. Neither is

there evidence that any Fish Bowl participant was involved in the instant

incident. Further, the offenses do not share a common modus operandi: In the

Fish Bowl offense, Rhine is alleged to have been a large-scale supplier to midlevel dealers; by contrast, in the offense of conviction, he attempted to sell a

small quantity of crack cocaine to an individual buyer for five dollars. Finally,

the only common purpose linking the two offenses is Rhine’s motivation to profit

from the distribution of crack cocaine, which — like the marijuana importation

in Wall — is by itself insufficient to connect the offenses as separate parts of a

common scheme or plan. We must therefore proceed to determine whether 19
No. 08-10502

 U.S.S.G. § 1B1.3, cmt. n.9(B). 20

Id.

21

Id.

22

See Culverhouse, 507 F.3d at 896. 23

 Moore, 927 F.2d at 828; see United States v. Santiago, 906 F.2d 867, 872-73 (2d Cir. 24

1990) (stating that there are no “inherent limitations on the transactions to be considered”).

11

Rhine’s alleged participation in the Fish Bowl drug-trafficking ring may properly

be considered part of the same course of conduct as his offense of conviction.

2. Same Course of Conduct

The Guidelines state that “[o]ffenses that do not qualify as part of a

common scheme or plan may nonetheless qualify as part of the same course of

conduct if they are sufficiently connected or related to [the offense of conviction]

as to warrant the conclusion that they are part of a single episode, spree, or

ongoing series of offenses.” Factors to consider in making this determination 20

include “the degree of similarity of the offenses, the regularity (repetitions) of the

offenses, and the time interval between the offenses.” A weak showing as to 21

any one of these factors will not preclude a finding of relevant conduct; rather,

“[w]hen one of the above factors is absent, a stronger presence of at least one of

the other factors is required.”22

a. Temporal Proximity

To determine whether temporal proximity is present, we begin with the

interval between the defendant’s purported relevant conduct and the offense of

conviction. Because there is “no separate statute of limitations beyond which 23

relevant conduct suddenly becomes irrelevant,” a defendant’s prior conduct will

not necessarily be “placed off limits simply because of a lapse of time.”24

Nevertheless, “various courts have found that a period of separation of over one
No. 08-10502

Wall, 180 F.3d at 646; see, e.g., Hill, 79 F.3d at 1484 (6th Cir. 1996) (“[W]e find that

25

temporal proximity is extremely weak in that nineteen months is an exceedingly long lapse

between offenses.”); United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir. 1994) (concluding

that two offenses occurring more than a year apart were “temporally remote”).

See United States v. Booker, 334 F.3d 406, 414 (5th Cir. 2003). Compare Culverhouse,

26

507 F.3d at 896 (concluding that temporal proximity was lacking when offenses were

separated by almost three years), and United States v. Miller, 179 F.3d 961, 966 (5th Cir.

1999) (holding that offenses separated by 21 months were temporally remote), with Bryant,

991 F.2d at 177 (concluding that temporal proximity of roughly two months supported district

court’s finding of relevant conduct), and Moore, 927 F.2d at 826, 828 (holding that

amphetamines seized five months prior to offense of conviction could be considered relevant

conduct). But see United States v. Robins, 978 F.2d 881, 890 (5th Cir. 1992) (concluding that

“a hiatus of approximately one and one half years” did not render prior “similar transactions”

irrelevant for sentencing purposes).

 179 F.3d at 966, 967 n.10. 27

 As stated above, the Fish Bowl investigation culminated in a large-scale drug raid 28

on May 17, 2006, but the informant on whose statement the probation officer relied indicated

that he had stopped cooking crack cocaine for Rhine by approximately January 2006.

Therefore, depending on which source one credits, Rhine’s participation in the Fish Bowl drugtrafficking ring ended some time between January and May 2006, meaning that at least 17

months — and as many as 22 months — separate Rhine’s earlier conduct from his offense of

conviction.

 See Moore, 927 F.2d at 828 (finding that intervening arrest for marijuana possession 29

helped connect defendant’s earlier drug activity to his offense of conviction such that the

12

year negated or weighed against [a finding of] temporal proximity.” We have 25

“generally used a year as the benchmark for determining temporal proximity.”26

For example, in United States v. Miller, we concluded that offenses separated by

21 months were “relatively remote in time” and held that “other factors must be

authoritatively present in order to overcome this long gap.”27

Here, at least 17 months separate any participation by Rhine in the Fish

Bowl drug-trafficking ring from his offense of conviction. Although not 28

dispositive, a hiatus this large suggests that temporal proximity is lacking. We

also find counter-indicative the lack of evidence that Rhine engaged in any

intervening criminal activity, the presence of which might link his earlier

conduct to the offense of conviction. The government urges us to overlook this 29
No. 08-10502

earlier drug activity could be considered relevant conduct).

See Culverhouse, 507 F.3d at 896 (“However, a failure in temporal proximity does not, 30

by itself, prevent a finding of relevant conduct.”).

See United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir. 1993). 31

Id.

32

13

shortcoming, insisting that the apparent lack of intervening criminal activity is

solely the result of the informants’ imprisonment on federal drug convictions —

and not Rhine’s voluntarily abstention from criminal activity. This argument

is unpersuasive, as it suggests that Rhine has the burden of proving the negative

fact that he did not engage in any intervening criminal activity, when in fact it

is incumbent on the government to show the positive fact of Rhine’s continued

drug distribution activities. 

We conclude that temporal proximity is lacking, adding, however, that our

conclusion does not necessarily preclude a finding of relevant conduct.30

Offenses separated by 17 months — or even longer periods of time — might still

be considered part of the same course of conduct if supported by a stronger

presence of at least one of the other factors. In particular, we recognize that a

lapse of time between prior conduct and the offense of conviction does not

necessarily indicate that a defendant abandoned a course of conduct. In some

cases, a lapse of time might merely mean that the defendant had to put a

venture “on hold.” For example, in United States v. Cedano-Rojas, the Seventh 31

Circuit concluded that a defendant’s drug transaction that occurred two years

prior to his offense of conviction was not too temporally remote to be considered

relevant conduct. The defendant in Cedano-Rojas had completed a large-scale 32

drug transaction shortly before losing his supplier, after which he faced

difficulties obtaining cocaine, resulting in a two-year gap between his earlier
No. 08-10502

Id. at 1177-78. 33

Id. at 1180. 34

Id. at 1180-81. 35

Id.

36

14

offense and the offense of conviction. Describing the defendant’s earlier 33

offense as “relatively stale,” the Seventh Circuit warned that courts must remain

“cautious and exacting in permitting such . . . dealings to be included in the same

course of conduct as the offense of conviction. Nevertheless, the Seventh 34

Circuit affirmed the district court’s finding of relevant conduct, basing its

holding largely on the overwhelming evidence in support of similarity, as both

offenses involved (1) large amounts of cocaine, (2) the same source and supplier,

and (3) a nearly identical use of “mules” to distribute the drugs. Thus, even if,

35

arguendo, we were to adopt the reasoning of Cedano-Rojas and find that Rhine

had been forced to put his venture “on hold” following the Fish Bowl arrests, we

would still need to determine whether a stronger presence of either similarity

or regularity compensates for the absence of temporal proximity. Therefore, 36

we must now determine whether there is sufficient evidence of similarity or

regularity to support a finding that Rhine’s earlier conduct and his offense of

conviction were part of the same course of conduct, despite the attenuation

between the end of the Fish Bowl ring’s operations and Rhine’s crime of

conviction.

b. Similarity

To determine whether a defendant’s earlier conduct is sufficiently similar

to the offense of conviction, we inquire whether “there are distinctive similarities

between the offense of conviction and the remote conduct that signal that they

are part of a course of conduct rather than isolated, unrelated events that
No. 08-10502

Culverhouse, 507 F.3d at 896 (internal quotation marks and citation omitted). 37

See Wall, 180 F.3d at 646-47 (quoting United States v. Mullins, 971 F.2d 1138, 1145 38

(4th Cir. 1992)).

Id. at 646. 39

15

happen only to be similar in kind.” As we have previously cautioned, however, 37

courts must not conduct this analysis at such a level of generality as to render

it meaningless. For example, in Wall, we concluded that two offenses were not 38

sufficiently similar because (1) there was no evidence that the marijuana

involved in each of the offenses shared a common source, supplier or destination,

(2) there were no common accomplices, and (3) one of the offenses involved “large

loads of marijuana secreted in the wheels and gas tank[s] of two pick-up trucks

driven across the border,” whereas the other offense involved only “a much

smaller . . . load hidden [somewhere] in [the defendant’s car].”39

Likewise, there are several material differences between Rhine’s alleged

participation in the Fish Bowl drug-trafficking ring and his offense of conviction.

Rhine’s instant offense involved possession of a very small quantity (1.89 grams)

of crack cocaine with intent to sell some lesser portion of it to an individual

buyer for five dollars; the sale took place in a vehicle; and Buchanan, the

individual purchaser for her personal consumption, had just learned about Rhine

from some unnamed source at a service station. In contrast, Rhine’s alleged

participation in the Fish Bowl drug-trafficking ring was said to have involved his

acting as a large-scale manufacturer, distributor, and supplier of kilogram

quantities of crack cocaine to numerous mid-level dealers. There are not even

any allegations that Rhine sold to individual users during the Fish Bowl drug

trafficking. Neither is there any suggestion that the two incidents involved any

common participants or accomplices.
No. 08-10502

See Culverhouse, 507 F.3d at 896 (“Nor is there any evidence that the

40

methamphetamine in the two offenses shared a common source, supplier, destination, or that

the two offenses involved a similar modus operandi.”); Wall, 180 F.3d at 646 (“Notably, there

is no evidence that the marijuana that formed the basis for the 1996 and 1997 offenses shared

a common source, supplier, or destination with the marijuana involved in the 1992 offense.”).

See Culverhouse, 507 F.3d at 896 (“The fact that [the unadjudicated offense and the 41

offense of conviction] both involved methamphetamine is not enough.”); Wall, 180 F.3d at 646-

47 (“We do not think that two offenses constitute a single course of conduct simply because

they both involve drug distribution.”); Miller, 179 F.3d at 967 (concluding that similarity was

lacking because “[t]he only real similarity between the two [offenses] is that they both involved

a transaction for the sale of cocaine”).

Mullins, 971 F.2d at 1145; see Hill, 79 F.3d at 1484 (stating that, if two drug

42

transactions are separated by more than one year, a relevant conduct finding generally may

not be premised on the sole similarity that the transactions involved the same drug).

16

We conclude that similarity is lacking, as the differences between these

offenses are significant. The quantities, methods of distribution, participants,

and nature of the transactions — as well as the defendant’s role in them — all

vary substantially. Further, there is no evidence that the cocaine forming the

basis for Rhine’s offense of conviction shared a common source, supplier, or

destination with the cocaine involved in the Fish Bowl activities. Although the 40

offenses both involve the distribution of crack cocaine, the mere fact that two

separate offenses involve the same type of drug is generally not sufficient to

support a finding of similarity. To hold that these offenses are similar would 41

be, in the words of the Fourth Circuit,

to describe the defendant’s conduct at such a level of generality as

to eviscerate the evaluation of whether uncharged activity is part of

the same course of conduct or common scheme or plan as the offense

of conviction. With a brushstroke that broad, almost any uncharged

criminal activity can be painted as similar in at least one respect to

the charged criminal conduct.42
No. 08-10502

See Culverhouse, 507 F.3d at 896 (“While we question whether a showing of 43

regularity alone could support a finding of relevant conduct when coupled with an absence of

temporal proximity and similarity, we assume arguendo that a showing of sufficient regularity

could provide the necessary support.”).

See Wall, 180 F.3d at 646, n.6. 44

 507 F.3d at 897. 

45

Id. at 896-97.

46

Id. at 897. 47

17

Having satisfied ourselves that both temporal proximity and similarity are

lacking, we must now determine whether there is a sufficiently strong presence

of regularity to support a finding of relevant conduct.43

c. Regularity

To determine whether “regularity” is present, we inquire whether there

is evidence of a regular, i.e., repeated, pattern of similar unlawful conduct

directly linking the purported relevant conduct and the offense of conviction.44

For example, in Culverhouse, we held that two dissimilar offenses separated by

almost three years lacked regularity because there was no evidence of unlawful

conduct occurring “between the [defendant’s] prior transaction . . . and [his] later

manufacturing.” In Culverhouse, the government had insisted that regularity 45

was present because the defendant had been involved in several prior drug

transactions, all of which had taken place before the offense the government

sought to characterize as relevant conduct. But, as we explained, “[t]he 46

sentencing judge could not have relied on this evidence to establish the

regularity required by § 1B1.3,” primarily because the temporally remote

offenses had not occurred between the earlier conduct and the offense of

conviction. We then concluded that, even if we were to consider the earlier 47

offenses, our case law established that “five offenses over the course of fifteen

years, separated as they are by time and circumstances, cannot be considered
No. 08-10502

Id. (internal quotation marks and citation omitted). 48

 U.S.S.G. § 1B1.3, cmt. n.9(B). 49

18

repetitious or regular conduct to a degree significant enough to constitute

sufficient connection under the [G]uidelines.”48

After reviewing the instant record, we conclude that regularity is lacking,

as there is no evidence that Rhine engaged in any intervening criminal activity

— much less drug distribution — between the Fish Bowl drug-trafficking ring

and his offense of conviction. Without even a scintilla of evidence that Rhine

sold drugs in the interim, the government nevertheless seeks to shift the burden

to Rhine, insisting that he must prove the negative fact that he did not engage

in a series of similar drug transactions. But we decline to adopt the

government’s assertion that regularity is present merely because of Rhine’s

inability to disprove an assertion that already finds no support in the record, and

conclude instead that there is no evidence of intervening or repetitious criminal

behavior that might link the two incidents together.

The government also insists that Rhine’s three prior convictions for

marijuana possession and cocaine distribution support a finding of regularity,

even though the convictions all took place well before Rhine’s alleged

participation in the Fish Bowl drug-trafficking ring. Rhine counters that, under

our precedent, a district court may not base a finding of regularity on a

defendant’s prior convictions or activity that did not take place between the

purported relevant conduct and the offense of conviction. 

It bears emphasizing that the overall purpose of this analysis is simply to

determine whether the offense at issue is part of the “same course of conduct” as

the offense of conviction, or, more specifically, whether the two are “sufficiently

connected or related . . . as to warrant the conclusion that they are part of a

single episode, spree, or ongoing series of offenses.” Consequently, we decline 49
No. 08-10502

See United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006) (explaining that, 50

following United States v. Booker, 543 U.S. 220 (2005), “[t]he sentencing judge is entitled to

19

to adopt Rhine’s suggestion that a district court may never consider a

defendant’s prior convictions or activities simply because they did not occur in

the interval between the purported relevant conduct and the offense of

conviction. Rhine’s contention misstates our holding in Culverhouse, in which

we concluded not only that the defendant’s several prior transactions had

preceded his purported relevant conduct, thus rendering their persuasive value

questionable, but also that, even on the merits, those activities did not

demonstrate sufficient regularity to overcome the absence of both temporal

proximity and similarity. Indeed, there may be the rare case in which a prior

conviction or prior activity informs this analysis by establishing a direct link,

i.e., a pattern of regularity or repetition, between the purported relevant conduct

and the offense of conviction (e.g., if a specific “course of conduct” began before

the “relevant conduct” and continued through to the offense of conviction). But

this, like Culverhouse, is not such a case. We are satisfied that Rhine’s old, preFish Bowl convictions do not establish a direct link or pattern of regularity

between the two disparate and temporally remote incidents at issue, viz., Rhine’s

alleged 2006 participation in a large-scale drug trafficking ring and his 2007

conviction for a relatively small, street-level drug deal.

In sum, Rhine’s alleged participation in the Fish Bowl activities cannot be

considered part of the same course of conduct as his instant offense, as temporal

proximity, similarity, and regularity are all lacking.

C. Sixth Amendment

Having concluded that Rhine’s alleged participation in the Fish Bowl drugtrafficking-ring cannot properly be considered relevant conduct, we need not

address the merits of his Sixth Amendment claim. We note, however, that the

claim is foreclosed by our precedent.50
No. 08-10502

find by a preponderance of the evidence all the facts relevant to the determination of a

guideline sentencing range”); United States v. Alonzo, 435F.3d 551, 553 (5th Cir. 2006) (same).

20

III. CONCLUSION

For the foregoing reasons, we conclude that the district court clearly

erred by treating Rhine’s alleged participation in the Fish Bowl drugtrafficking ring as relevant conduct for purposes of sentencing on his offense

of conviction. Rhine’s activity in the Fish Bowl operations and the instant

offense are not part of a common scheme or plan, as the two disparate

incidents lack common accomplices, common victims, a common purpose, or a

common modus operandi. Neither can the two disparate incidents be

considered part of the same course of conduct, as temporal proximity,

similarity, and regularity are all lacking. We therefore VACATE Rhine’s

sentence and REMAND for re-sentencing in conformity with this opinion.