* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 6 2000 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GUILLERMO HERNANDEZ, Defendant-Appellant. No. 00-8003 (D.C. No. 99-CR-31-5) (Wyoming)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL , and BRISCOE , Circuit Judges.

Guillermo Hernandez pled guilty to conspiracy to po ssess with intent to distribute and to distribute marijuana, using a tel ephone to facilitate a controlled substance offense, and distributing marijuana. He appeals his sentence, and we affirm.-2-

The conspiracy charge to which Mr. Hernandez pled g uilty alleged that he, his sister Araceli Hernandez, and others conspired to distribute marijuana in Casper, Wyoming, from January 1 to March19, 1999. Mr. Hernandez and Ms. Hernandez allegedly received quantities for resale and distributed the drug to others. The substantive counts arose from a teleph one conversation between Mr. Hernandez and his sister in which she asked him to provide her a quarter pound of marijuana for sale to another person, and from the actual distribution of the marijuana to that person. At sentencing, the government argued that Mr. Hernandez’ base offense level should include as relevant conduct marijuana he had allegedly possessed with intent to distribute approximately two years e arlier in Casper. In support of its position, the government presented evidence fro m Chad Campbell, who had lived with Mr. Hernandez for four or five months inthe spring of 1997. Mr. Campbell testified that during this time he observe d one-pound blocks of compressed marijuana in the freezer unit of the ref rigerator in the residence they shared, that the amount fluctuated as Mr. Hernandez sold this marijuana, and that he himself sold small quantities of it on occasion and gave the proceeds to Mr. Hernandez. Mr. Campbell further stated that he hadearlier possessed eight pounds of marijuana in blocks at another residence and that that quantity was very similar to the amount he observed in Mr. Hernandez’ freezer.-3-

The district court credited Mr. Campbell’s testimony and concluded that eight pounds of marijuana should be included as rel evant conduct in calculating Mr. Hernandez’ total offense level. As a result, M r. Hernandez had a total offense level of 10 and a criminal history categoryof III, for a sentencing range under the Sentencing Guidelines of ten to sixteen m onths. The judge’s thirteenmonth sentence fell in the middle of the applicable range. On appeal Mr. Hernandez argues that the court erredby including the eight pounds of marijuana for sentencing purposes, conten ding that Mr. Campbell’s estimate of drug quantity lacked sufficient indiciaof reliability because his recollection was admittedly blurred by his use of d rugs and alcohol during the relevant time, and that the earlier alleged acts we re too remote and dissimilar to justify an enhancement as relevant conduct under th e Guidelines. We review fact findings on drug quantities and rele vant conduct under the clearly erroneous standard. United States v. Richards , 27 F.3d 465, 468 (10th Cir. 1994). Whether the activity at issue qualifies as relevant conduct, however, is a question of law we review de novo. United States v. Svacina , 137 F.3d 1179, 1182 (10th Cir. 1998). “The government must prove the existence of the additional quantities by a preponderance of the evi dence.” Richards , 27 F.3d at 468

. Drug quantities may be established on the basis o f estimates so long as they have some basis of support in the record and suffic ient indicia of reliability. Id.-4-

at 469. We turn first to Mr. Hernandez’ argument that the amount attributable to his earlier sales was not supported by sufficient i ndicia of reliability because Mr. Campbell was admittedly using drugs and alcohol dur ing that period. “The credibility of a witness at sentencing is for the s entencing court, who is the trier of fact, to analyze. Applicable case law permits t he sentencing court to accept estimates on quantities based on information with aminimum indicia of reliability.” United States v. Deninno , 29 F.3d 572, 578 (10th Cir. 1994). We will not disturb the lower court’s assessment of Mr . Campbell’s credibility. Mr. Hernandez also argues that his earlier drug act ivity does not qualify as relevant conduct. A defendant’s base offense level can be determined on the basis of conduct other than the offense of convicti on if that conduct is “part of the same course of conduct . . . as the offense of conv iction.” U.S.S.G. § 1B1.3(a)(2). “[T]he analysis of same course of con duct focuses on whether there is a pattern of criminal conduct,” which is determi ned by several factors, including “similarity, regularity, temporal proximi ty, the nature of the defendant’s acts, [and] his role.” Svacina , 137 F.3d at 1183 (internal quotations omitted). Here, the earlier drug sales took place in the same location and were very similar in nature. Mr. Hernandez’ role as a middleman in t hose transactions was likewise very similar to his role in the offense of convicti on. While the earlier conduct-5-

was separated by a gap of almost two years, we have held that temporal proximity is not dispositive, see United States v. Roederer , 11 F.3d 973, 979 (10th Cir. 1993), and have concluded that conduct is relevant even when separated by a gap much longer than that present here, see id. at 979-80. Accordingly, the court did not err in determining that Mr. Hernandez’ prior drug activity was relevant conduct. Mr. Hernandez argues that his thirteen-month senten ce was disproportionate to that of his sister, who pled gu ilty to the same offense and was sentenced to six months’ incarceration. “In imposi ng a sentence, the district court shall consider, inter alia, ‘the need to avoid unwa rranted sentence disparities among defendants with similar records who have beenfound guilty of similar conduct.’” United States v. Contreras , 108 F.3d 1255, 1271 (10th Cir. 1997). The record indicates that Ms. Hernandez had a base offense level of 4 and a criminal history category of III, for a sentencing range of 0-6 months. Mr. Hernandez’ base offense level was 10 because it inc luded prior relevant conduct. His sister’s base offense level was not similarly e nhanced because it did not include any prior relevant conduct. The disparity in their sentences reflected Mr. Hernandez’ more extensive criminal conduct and was therefore not unwarranted. Finally, Mr. Hernandez contends that remarks made b y the district court during the course of the proceedings revealed a bia s against him that prejudiced1 Mr. Hernandez refers us to comments made by the co urt both at a hearing

held April 14, 1999, and at his sentencing hearing on January 11, 2000. The transcript of the April 14 hearing is not included in the record on appeal and we therefore address only the court’s remarks at sente ncing. -6- the court’s relevant conduct determination. 1 At sentencing, the court observed that Mr. Hernandez’ troubles began with his use of marijuana and alcohol during his teen years, required him to receive drug and al cohol counseling while in prison, stated the court’s belief that Mr. Hernande z had intelligence and industry, and encouraged Mr. Hernandez to make something of h is life after his release from incarceration. After sentence had been impose d, the court referred to testimony from Mr. Campbell describing the extensiv e drinking and drug abuse Mr. Campbell had observed and taken part in during his senior trip to Mexico. The court stated:

That’s why this Court is disturbed that a lot of pe ople do not appreciate the magnitude of the risk they subject t heir children to when they allow them to travel to a country as lawl ess as Mexico. It’s one thing to go to Mexico when you go with you r parents. There’s some protection from the lawless elements w ithin that society. There are whole states in the Republic of Mexico that are controlled by the cartels. Now, that isn’t very di plomatic of me to say, but it is the unvarnished truth. App., vol. IV at 58. Mr. Hernandez contends the above remarks reveal that the court stereotyped him and lumped him in with lawless Mexican national s and that the court’s underlying prejudice affected its sentencing determ ination. A judge’s opinion-7-

formed on the basis of facts introduced in the cour se of the proceedings at issue does not support a claim of bias or prejudice unles s it displays a “deep-seated . . . antagonism that would make fair judgment impossible .” United States v. Pearson , 203 F.3d 1243, 1277 (10th Cir. 2000) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). The record is clear that the judge’s comments were in response to the testimony of Mr. Campbell rather th an an extrajudicial source. Moreover, they did not display a deep-seated antago nism making fair judgment impossible. To the contrary, the record as a whole reveals that the judge held a generally favorable view of Mr. Hernandez as a pers on with potential who had a problem with drugs and alcohol. Accordingly we see no ground for requiring resentencing. Mr. Hernandez’ sentence is AFFIRMED . ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge