### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-40033

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v. DOLPH FINLEY, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:12-CR-181-1

Before REAVLEY, ELROD, and HAYNES, Circuit Judges. PER CURIAM: * A jury convicted Defendant-Appellant Dolph F i n l ey of conspiracy to
possess with intent to distribute l ess than 50 kilograms of m arijuana in violation of 2 1 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846, a nd possession with intent to distribute less than 50 kilograms of marij u a n a in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2. The district court sentenced F inley to thirty-eight m onths of imprisonment to be followed by three years of supervised release. Finley appeals his c onviction, arguing that the district court erred in U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Nov em ber 11, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-40033 Document: 00512436651 Page: 1 Date Filed: 11/11/2013No. 13-40033

d e nying his motion to suppress and in overruling his jury selection challenge. Finley also appeals his s entence on t h e b a sis that the district court erred in finding both that h e committed a prior dr u g t r a f ficking offense and that the offense is relevant conduct under U.S. S E N T E N C I N G G U I D E L I N E S MA N U A L (“U.S.S.G.”) § 1B1.3(a)(2) (2012). We AFFIRM. I. Factual and Procedural History In February 2012, Finley and codefendant Thom a s Lubecke left Baton Rouge, Louisiana, i n a rental car and d r ove t o Brownsville, T exas. The purpose of their t rip was to pur c h a s e m a r ijuana for resale from contacts Finley had previously established in Brownsville. On the return, F i nley boarded a bus, concealing the contra b and i n an All-Star gym bag, while Lubecke followed behind in the rental car. After the bus passed throug h a b o r d e r checkpoint, a drug dog a lerted to Lubecke’s rental car. The subsequent s earch of the car r e vealed per s o n a l-use amounts o f d r u gs, some of the materials u sed to conceal t he marijuana, and a black All Star duffle b ag identical to th e o n e u sed to transport the marijuana. Because a Border Patrol agent recalled seeing t he other black All Star duffle bag in the luggage area of the passenger bus, Border Patrol a gents stopped the bus a second time. This time, a drug dog a lerted t o the bag, and asearch revealed the marijuana. The agents also discovered F i n l e y trying to dispose of the luggage receipt corre s ponding to the bag in the bathroom of the b us. Given Finley’s inculpatory actions and the discovery of the drugs, the agents arrested Finley. After his arrest, Border Patrol agents read Finley h is Miranda r ights, and Finley invoked his ri g h t t o counsel. L ater that day, Drug Enforcement Administration (“DEA”) agents arrived to interview Finley. One of the agents, Agent Cervantes, recognized Finley from a n earlier drug trafficking arrest at the Sarita B order Patrol checkpoint. After Finley was removed from his holding cell

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and taken to an office for a n interview, Agent Cervantes made eye c ontact with Finley and asked him, “do you remember m e?” Finley answered affirmatively, and the two b egan a c onversation during which Finley denied involvement in the events under investigation. At trial, Finley moved to suppress the statements made during this conversation. The district c ourt denied the motion, and the prosecutor introduced the conversation as evidence of Finley’s guilt. A ju r y u l timately convicted Finley of the charged o ffenses, and Finley’s

case p roceeded to sentencing. The Presentence Investig ation Report (“PSR”) included in the Guidelines calculation marijuana and ecstasy discovered during

an unadjudicated M arch 2011 arrest of Finley. Finley objected to the inclusion of these drugs i n t h e G uidelines calculation, b ut the district c o urt overruled the obje c tion, finding that Finley committed the March 2 011 offense and that it qualified as relevant conduct under § 1B1.3(a)(2) of the Guidelines.

II. Motion to Suppress Statements Finley a rgues on a ppeal that the statements of denial that he m ade on the day of his arrest s hould have been excluded under Edwards v
. Arizona , 451 U.S. 477 (1981), which prohibits continued interrogation a fter i nvocation of the right to c o unsel “unless the accused himself initiates further communication,

e x c h a n ges, o r c onversations with the p olice.” I d. at 484–85. Following a hearing, the d istrict court f ound that the a gents did not violate Edwards because Finley “initiated the communication about the o ffense or investigation

. . . before h e w as asked any q uestions about the investigation.” The district c o u r t therefore denied Finley’s motion to suppress. We revi e w de n o v o th e legal conclusions underlying a district court’s denial of a motion to suppress a nd review for c l ear er r o r a district court’s factual findings

. U

n ited States v. Gonzalez-Garcia , 708 F.3d 682, 6 85 ( 5th Cir. 2013). Any e rror is subject to h armless e rror review. U nited States v
. G reen , 272 F.3d 748, 756 (5th C ir. 2001). An e rror is h armless only i f we can determine beyond

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a reasonable doubt that the improper testimony did not contribute to the jury’s verdict. Id. We need not decide w hether the di strict court erred in admitting Finley’s statements, because the error was ha r m l ess. Even without the challenged

s t a t e m e n t s , there was overwhelming evidence of Finley’s guilt presented at t ri a l

. The jury listened to e xt ensive testimony by Lubecke that he and F i nley planned and carried out the purchase and transport of marijuana from Brownsville using

a rental car, a passenger bus, a b l ack All Star d uffle b a g , a n d marijuana packaging materials (black plastic sheeting, c o ffee, dryer sheets, and axle
gre a s e ). The jury reviewed video, p hotographic, and documentary evidence which indicated that Finley and Lubecke purchased t h e m a r ijuana packaging materials and two black All S t ar duffle b ags from Brownsville stores. There was also documentary e vidence th a t F i n l ey a nd Lubecke purchased bus tickets together. The jury heard testimony from a Brown s v i l l e Metro employee regarding surveillanc e v i d eo footage of Finley a nd Lubecke p u rchasing bus tickets together, Finley placi n g a b l ack All Star duffle bag in the luggage compartment of the bus, and Finley boarding the bus, as well as testimony from Border Patrol agents about Finley’s inculpatory conduct at the time of the stop. The jury also reviewed cellular telephone r ecords showing Finley and Lubecke in contact by telephone and text message while Finley was traveling on the bus, including a text message asking Finley what highway the b us was traveling on. The overwhelming nature of the e vidence leaves no doubt as t o Finley’s guilt. See United States v. Vejar- U r i as , 165 F.3d 337, 340 (5th Cir. 1999) (“[E]rror may be considered harmless when, disregarding t he [challenged evidence], there is otherwise ample evidence against a defendant.” (citation and internal qu o t at i o n m a rk s o m i tt e d) )

. In c o mparison, Finley’s statements of denial to the DEA a gents were insignificant: their fa l s i t y a nd inculpatory nature is realized only if the jurors first believe the other evidence of Finley’s guilt. See

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United States v
. Basey , 816 F.2d 980, 1 0 0 5 ( 5 th Cir. 1987) (“[E]rror may be harmless if the [improper] statement’s impact i s i n significant in l ight of the weight of other evidence against the defendant.” (citing Schneble v. Florida , 405 U.S. 427, 430 (1972))). The “verdict rendered was surely u n attributable to the” statements. Green , 272 F.3d a t 756. 1 Therefore, any potential error i n admitting Finley’s statements was harmless. I II. Batson Challenge Finley challenges a s racially based the peremptory strike of a juror in his

case. “The Due Process clause of the Fifth Amendment pr o h i b i t s t h e use of peremptory strikes o n the basis of race.” United States v. Davis , 393 F.3d 540, 544 (5th Cir. 2004) (citing, inter alia , Batson v. Kentucky , 476 U.S. 79, 84 (1986)). We review a d istrict court’s Batson ruling for clear er r o r
. U n i t e d States v. Kennedy , 707 F.3d 558, 568 (5th Cir.), cert. denied , 133 S. Ct. 2785 (2013). During voir dire , the prosecutor asked prospective j urors who had raised their n umbered cards in support o f l e gal i z a t i o n o f marijuana for medicinal
purposes to “leave your card up if you think it should just be legalized period.” At th i s p o i n t, potential Jurors 5 and 18 were the only p o tential jurors to leave their cards raised. The prosecutor then engaged in f o l l o w-up questioning of Jurors 5 and 18 o n t h is t opic, during w hich both e xpressed their belief that marijuana was less “severe,” “harmful,” or “ evil” than other drugs. The prosecutor used peremptory strikes on both Jurors 5 and 18. At the conclusion of jury selection, Finley r aised a Batson challenge to the prosecutor’s use of a peremptory str i k e a gainst potential J uror 5—the only African-American on the venire. The district court denied the challenge.

1 Finley’ s c o m p aris on to G reen is m is placed

. U nlik e in G reen , w here the challenged
s tatem ents w ere “the only d irect evid ence of [ the d ef end ant’s ] k now led ge of and acces s to the f irearm s charged in the ind ictm ent, ” 272 F. 3d at 757, Finley’s s tatem ents w ere not neces s ary to p rove any elem ent of the of f ens es
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Although Finley argues t hat t he prosecutor engaged in disparate
ques t i o n i ng of Juror 5 in a manner that would tend to prompt responses that

w o u l d justify striking Juror 5 and that the prosecutor’s proffered reason f o r striking Juror 5 was a p retext for ra c ial discrimination, the record s upports neither of these arguments. In short, Finley failed to mee t his burden of demonst r ating p urposeful discrimination. We perceive no error in the district court’s ruling. IV. Finley’s Prior Arrest as Relevant Conduct The district court increased Finley’s sentence based on evid e n c e that he h a d p r e v i o usly possessed drugs in March of 2011. 2 Finley appeals the district court’ s s e n t e ncing calculation on two grounds: (1) there w as a n insufficient evidentiary basis to conclude t hat he committed t h e March 2011 o ffense, and (2) the March 2 0 1 1 o f

fense w as not relevant conduct under § 1B1.3(a)(2) of the Guidelines because it was not part o f the s a me course o f c o n d u ct or common

s c h eme or plan as the instant offense of conviction. A district cour t ’ s determination that unadjudic a t e d conduct is relevant conduct under the Guidelines is a f

a c tual finding t hat we review for clear error. U nited States v. Rhine , 583 F.3d 878, 884–85 (5th Cir. 2009). A. Applicable Legal Standards In calculating the amount of drugs involved in an offense, a district court
may consider uncharged conduct so long as it constitutes “relevant conduct” under the Guidelines. See U.S.S.G. §§ 1B1.3(a)(2), 3D1.2(d). Relevant conduct includes “all acts and omissions

. . . that were part of the same course of conduct

or common scheme or plan as the o ffense of conviction.” § 1B1.3(a)(2). “‘Common scheme or plan’ and ‘same course of conduct’ are two closely-related

2 The cas e stem m ing f rom Finley’s M arch 2011 arres t w as d is m is s ed

.

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concepts.” § 1B1.3(a)(2) cmt. n.9. “Offenses that d o not qualify a s p art o f a

common scheme or plan may nonetheless qualify as part of the same course of conduct i f they are sufficiently connected or r elated to each other as to warrant the conclusion t hat they are part o f a single episode, spree, o r ongoing series of offenses.” § 1B1.3 cmt. n.9(B); see also Williams , 610 F.3d at 293. B. Finding that Finley Committed the March 2011 Offense At Finley’s sentencing hearing, the evid e n c e b e fore the district court included the t e s t i m o ny of Agent Cervantes, the D EA agent assigned to the investigation of Finley’s March 2011 a nd the PSR, which include d s i m ilar information about the March 2011 a rrest. A d d itionally, t he PSR included statements m ade by Lubecke that in late 2011, Finley informed him that he had previously made m u l t i p l e trips to South Texas to b uy marijuana to sell in Louisiana a n d that he had contacts i n Brownsville from whom they could purchase drugs. Furthermore, the district court had before it the evidence adduced at trial to prove the February 2012 o ffenses that Finley was convicted o f. This included evidence that in F ebruary 2012, Finley made a trip with Lubecke in a rental car from Baton Rouge, Louisiana, to Brownsville, Texas, d uring which th ey purchased marijuana and tried to transport i t back north through the Sar ita Border Patrol checkpoint in order to sell it. T h e same type of trip was i nvolved in the March 2011 offense. Based on the foregoing evidence, the district court specifically found that Finley committed the March 20 1 1 o ffense. Consequently, Finley’s argument that the district court erred by reaching its conclusion based on the “mere fact of arrest alone” is unavailing. The evidence c o nsidered by the district c ourt went well beyond the mere fact of Finley’s arrest. See U nited S t a t e s v. Harris , 702 F.3d 226, 230 n .1 (5th Cir. 2012) (“Because [the] PSR inclu d e d t h e f actual

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underpinnings f

or t he prior unadjudicated arrests—not merely the fact that [the defendant] had been arrested, but not convicted, for an offense—this case does not i nvolve improper reliance on the mere fact of prior arres t s
. ” ) , c e r t. denied , 133 S. Ct. 1845 (2013); United States v. Jones , 444 F.3d 430, 434 (5th Cir. 2006) (noting that while an arrest alone may not be considered, a court may consider

a p r i o r offense after making a finding, s upported by evidence, t h at t he defendant committed the offense). Finley argue s that because t he drugs were in a “hidden compartment” there w as insufficient evidence to support the “knowledge” element of t he prior offen s e
. Se e U

n ited States v. Mendoza, 522 F.3d 482, 489 (5th C ir. 2 008). In Mendoza, which involved a conviction based upon a “beyond a reasonable doubt” burden of proof, we e x p lained that, i n a hidden compartment situation, we traditionally require other circumstantial evidence “that is suspicious i n nature

or demonstrates guilty knowledge.” Id. (citation and internal quotation marks

o m i t ted). We need not resolve the open q uestion of whether Mendoza applie s equally to a sentencing proceeding w here the b urden of proof is preponderance of the evidence b ecause the evidence underlying the district court’s finding is suffici e nt even u nder Mendoza

. We c o nclude t hat there was sufficient circumstantial e vidence b e y o n d th e dru g s f o u n d i n th e h i d den compartment such that the district court did not clearly err in finding that Finley committed the March 2011 offense. C. Relevant Conduct Due to Same Course of Conduct 3

3 Relevant cond uct is d ef ined as includ ing acts that are either “p art of the s am e cours e of cond uct” as the of

f ens e of conviction or p art of a “com m on s chem e or p lan” as the of f ens e of conviction. § 1B1. 3( a) ( 2)

. T he d is trict court d id not s p ecif y through w hich avenue it reached its relevant cond uct f

ind ing. Becaus e w e d eterm ine it is p laus ible to f ind the tw o incid ents in ques tion w ere p art of the s am e cours e of cond uct, w e d o not ad d res s w hether they might als o be cons id eredp art of a com m on s chem e or p lan. 8 Case: 13-40033 Document: 00512436651 Page: 8 Date Filed: 11/11/2013No. 13-40033

Offenses may “qualify as p art of the s ame course o f conduct if they are sufficiently connected o r related to each other as to warrant the conclusion that they are part of a single episode, s pree, or ongoing series of o ffenses.” § 1B1.3 cmt. n.9(B). Factors b earing on t h is determination include “t he degree of similarity of t he o ffenses, the regularity (repetitions) of the offenses, and the time i n terval between the offenses.” Id. Here, all three factors weigh in favor of the district court’s finding that th e M arch 2011 offense is part o f t he same course of conduct as the offense of conviction. “To determine whether a d e f e ndant’s earlier conduct i s s ufficiently similar to the offense of conviction, w e inquire whether ‘there are distinctive s i m ilarities between the offense of conviction and the remote conduct that signal that they

are part of a course of conduct rather t han i solated, unrelated events that ha p pen only t o be similar in kind.’” Rhine , 5 83 F.3d at 888 (quoting United States v. Culverhouse , 507 F.3d 888, 896 (5th Cir. 2007)). In t his case, there are multiple distinct similarities betw e e n t he two offenses. First, t h e offenses t h e m s e l ves are t he same—conspiracy to p ossess with intent to distribute a controlled substance. Both o ffenses b e g a n w ith renting a car from Enterprise Rent-A-Car i n B aton Rouge, Louisiana. In addition, both involved Finley traveling with an accomplice to Brownsville, Texas, where the t wo s pent a single night at a hote l

. Al s o i n both offenses, after a one-day stay in Brownsville, Finley and the ac c o m p l ice then began transporting d rugs north through the Sarita Border Patrol checkpoint. The amount of d rugs in both offe n s e s w a s greater than a p ersonal-use amount—5.44 k ilograms of marijuana and 18.7
grams o f e c s tasy i n the first incident and 16.8 kilograms of marijuana in the second incident. Furthermore, the fact that t h e d r u gs w ere acquired in South Texas in both i ncidents and that Finley informed Lubecke that he had a supplier in South Texas suggests that the drugs shared a common source or supplier. Cf. United S tates v. B ryant , 991 F .2d 171, 177 (5th Cir. 1 993) (finding district court

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did not err in c o ncluding that drugs were part of defendant’s “on-going drug trafficking operations” after noting, inter alia , that the drugs were mailed from California and the defendant stated that his regular drug supplier was located in Los Angeles). Thus, the distinct similarities between the tw o o f f e n ses here suggest that they are part of the same course of conduct. 4 When considering t he regularity factor, we “inquire wheth e r t h e re is evidence of a regular, i.e., repeated, p attern of similar unlawful conduct directly linking the purported r e l ev a nt conduct and the offense of conviction.” Rhine , 583 F.3d a t 889–90. The facts in this case suggest that F inley repeatedly traveled to South Texas, purchased drugs there, and transported t hem north, and that the March 2011 and February 2012 offenses were part of t his regular pattern of activity. Finley’s statement to L ubecke that he m ade “multiple trips” t o South Texas to pu r c h a s e drugs is strong evidence that he did just that. 5 The March

4 The cas es cited by Finley to s how otherw is e are dis tinguis hable becaus e the of f ens es in thos e cas es s hared m uch f ew er s im ilarities than are p res ent here. See Rhi ne , 583 F. 3d at 889 ( conclud ing that s im ilarity w as lack ing d ue to “s ignif icant” d if

f erences , includ in g quantities , m ethod s of d is tribution, p articip ants , nature of the trans actio n s , and the d ef end an t ’ s r ole in the trans actions , as w ell as the f act that there w as no evid ence that the d rugs cam e f

rom a “com m on s ource, s up plier, or d es tination”) ; U ni ted Sta tes v
. Wa l l , 180 F

. 3d 641, 646 ( 5th Cir. 1999) ( conclud ing that there w ere “s ignif icant d if f erences ” betw een the tw o of f ens es : there w as no evid ence that t h e d r u g s “s hared a com m on s ource, s up p lier, or d es tination”; an accom p lice w a s u s e d in one incid ent, but not the other; and one incid ent involved “large load s of m arijuana s ecreted in the w heels and gas tank of tw o p ick

- up truck s d riven acros s the bord er, ” w hile the other incid ent involved a “m uch s maller” load hid d en in
a car)

.

5 Fi n l e y ’ s r e l iance on Rhi ne , 583 F. 3d at 890–91, to s ugges t that his s tatem ents to Lubeck e are little evid ence of regularity, becaus e the “m ultip le trip s ” m a y have occurred p rior to the M arch 2011 of

f ens e, is m is p laced

. In Rhi ne , w e conclud ed that regularity w as lack ing becaus e there w as not “even a s cintilla of evid ence” that the d ef end ant engaged in the s ale of d rugs betw een the tw o of f ens es in ques tion. 583 F. 3d at 890. We noted that cond uct occurring p r i o r to both the p urp orted relevant cond uct and the of f ens e of conviction us ually ca r r i e s ques tionable pers uas ive v alue. I d. at 890–91. How ever, w e recognized that “there m ay be the
rare cas e in w hich a p rior conviction or p rior activity inf orm s this analys is by es tablis hing a d irect link , i. e. , a p attern of regularity or rep etition, betw een the p urp orted relevant cond uct and the of

f ens e of conviction ( e. g
. , if a s p ecif ic ‘co u r s e o f cond uct’ began bef ore the ‘relevant 10 Case: 13-40033 Document: 00512436651 Page: 10 Date Filed: 11/11/2013No. 13-40033

2011 offense a ppears to be one of the trips to which Fin l e y referred. The February 2012 offense was another such trip—a continuation of this pattern of activity. Because there is “ evidence of a regular, i.e., r epeated, pattern of similar unlawful conduct directly linking th e p u r p o rt e d relevant conduct and the offense of conviction,” thi s f

a c t o r weighs in favor of finding that the two offenses in question were part of the same course of conduct. Id

. F i n a l l y, with r egard to the t emporal factor, “[w]e have ‘ generally use d a year a s the benchmark.’” Rhine , 583 F.3d at 8 8 6

– 8 7 (quoting U nited States v. Booker , 334 F .3d 406, 414 (5th Cir. 2 0 03)); see also United States v. Ocana , 204 F.3d 585, 590 (5th Cir. 2000) (“It is w ell settled i n this circuit that offenses which

occur within o ne year of t he offense of conviction may be considered relevant conduct for sentencing.” )

. S i n c e th e t w o o f f e nses occurred within t his benchmark period—approximately eleven m onths a part—this factor w e ighs in favor of finding that they were part of the same course of conduct. Because all t hree factors w eigh in favor of finding that the M a r c h 2011 offense was part of the same course of conduct as t he offense of conviction, the district court did not clearly err in determining t h at the March 2011 offense was relevant conduct under the Guidelines. AFFIRMED.

cond uct’ and continued through to the of f ens e of conviction) .” Id. at 891. To the extent that the “m ultip le trip s ” that Finley d es cribed to Lubeck e occurred p rior to the M arch 2011 incid ent as F inley s ugges ts , this cas e w ould be one of the cas es d es cribed in Rhi ne in w hich the p rior d rug traf

f ick ing d em ons trates “a s p ecif ic ‘cours e of cond uct’ [ that] began bef ore the ‘relevant cond uct’ and continued through to the of f ens e of conviction. ” Id

. T heref ore, Finley’s s tatem ent to Lubeck e that he m ad e “m ultip le trip s” to South Texas to p urchas e d rugs is evid ence that he regularly a n d r e p e a t ed ly com m itted s uch of fens es regard les s of whether they occurred bef ore or betw een the tw o of f ens es in ques tion.

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