IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Finley of conspiracy to

possess with intent to distribute less than 50 kilograms of marijuana in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846, and possession with intent to

distribute less than 50 kilograms of marijuana in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2. The district court sentenced Finley to

thirty-eight months of imprisonment to be followed by three years of supervised

release. Finley appeals his conviction, arguing that the district court erred in

United States Court of Appeals

Fifth Circuit

F I L E D

November 11, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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denying his motion to suppress and in overruling his jury selection challenge.

Finley also appeals his sentence on the basis that the district court erred in

finding both that he committed a prior drug trafficking offense and that the

offense is relevant conduct under U.S. SENTENCING GUIDELINES MANUAL

(“U.S.S.G.”) § 1B1.3(a)(2) (2012). We AFFIRM.

I. Factual and Procedural History

In February 2012, Finley and codefendant Thomas Lubecke left Baton

Rouge, Louisiana, in a rental car and drove to Brownsville, Texas. The purpose

of their trip was to purchase marijuana for resale from contacts Finley had

previously established in Brownsville. On the return, Finley boarded a bus,

concealing the contraband in an All-Star gym bag, while Lubecke followed

behind in the rental car. 

After the bus passed through a border checkpoint, a drug dog alerted to

Lubecke’s rental car. The subsequent search of the car revealed personal-use

amounts of drugs, some of the materials used to conceal the marijuana, and a

black All Star duffle bag identical to the one used to transport the marijuana. 

Because a Border Patrol agent recalled seeing the other black All Star duffle bag

in the luggage area of the passenger bus, Border Patrol agents stopped the bus

a second time. This time, a drug dog alerted to the bag, and a search revealed

the marijuana. The agents also discovered Finley trying to dispose of the

luggage receipt corresponding to the bag in the bathroom of the bus. Given

Finley’s inculpatory actions and the discovery of the drugs, the agents arrested

Finley.

After his arrest, Border Patrol agents read Finley his Miranda rights, and

Finley invoked his right to counsel. Later that day, Drug Enforcement

Administration (“DEA”) agents arrived to interview Finley. One of the agents,

Agent Cervantes, recognized Finley from an earlier drug trafficking arrest at the

Sarita Border Patrol checkpoint. After Finley was removed from his holding cell

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and taken to an office for an interview, Agent Cervantes made eye contact with

Finley and asked him, “do you remember me?” Finley answered affirmatively,

and the two began a conversation during which Finley denied involvement in the

events under investigation. At trial, Finley moved to suppress the statements

made during this conversation. The district court denied the motion, and the

prosecutor introduced the conversation as evidence of Finley’s guilt.

A jury ultimately convicted Finley of the charged offenses, and Finley’s

case proceeded to sentencing. The Presentence Investigation Report (“PSR”)

included in the Guidelines calculation marijuana and ecstasy discovered during

an unadjudicated March 2011 arrest of Finley. Finley objected to the inclusion

of these drugs in the Guidelines calculation, but the district court overruled the

objection, finding that Finley committed the March 2011 offense and that it

qualified as relevant conduct under § 1B1.3(a)(2) of the Guidelines.

II. Motion to Suppress Statements

Finley argues on appeal that the statements of denial that he made on the

day of his arrest should have been excluded under Edwards v. Arizona, 451 U.S.

477 (1981), which prohibits continued interrogation after invocation of the right

to counsel “unless the accused himself initiates further communication,

exchanges, or conversations with the police.” Id. at 484–85. Following a

hearing, the district court found that the agents did not violate Edwards because

Finley “initiated the communication about the offense or investigation . . . before

he was asked any questions about the investigation.” The district court

therefore denied Finley’s motion to suppress.

We review de novo the legal conclusions underlying a district court’s denial

of a motion to suppress and review for clear error a district court’s factual

findings. United States v. Gonzalez-Garcia, 708 F.3d 682, 685 (5th Cir. 2013). 

Any error is subject to harmless error review. United States v. Green, 272 F.3d

748, 756 (5th Cir. 2001). An error is harmless only if 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 whether the district court erred in admitting Finley’s

statements, because the error was harmless. Even without the challenged

statements,there was overwhelming evidence of Finley’s guilt presented at trial. 

The jury listened to extensive testimony by Lubecke that he and Finley planned

and carried out the purchase and transport of marijuana from Brownsville using

a rental car, a passenger bus, a black All Star duffle bag, and marijuana

packaging materials (black plastic sheeting, coffee, dryer sheets, and axle

grease). The jury reviewed video, photographic, and documentary evidence

which indicated that Finley and Lubecke purchased the marijuana packaging

materials and two black All Star duffle bags from Brownsville stores. There was

also documentary evidence that Finley and Lubecke purchased bus tickets

together. The jury heard testimony from a Brownsville Metro employee

regarding surveillance video footage of Finley and Lubecke purchasing bus

tickets together, Finley placing a black 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 records 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 bus was traveling on.

The overwhelming nature of the evidence leaves no doubt as to Finley’s

guilt. See United States v. Vejar-Urias, 165 F.3d 337, 340 (5th Cir. 1999)

(“[E]rror may be considered harmless when, disregarding the [challenged

evidence], there is otherwise ample evidence against a defendant.” (citation and

internal quotation marks omitted)). In comparison, Finley’s statements of denial

to the DEA agents were insignificant: their falsity and 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, 1005 (5th Cir. 1987) (“[E]rror may be

harmless if the [improper] statement’s impact is insignificant in light of the

weight of other evidence against the defendant.” (citing Schneble v. Florida, 405

U.S. 427, 430 (1972))). The “verdict rendered was surely unattributable to the”

statements. Green, 272 F.3d at 756.1 Therefore, any potential error in admitting

Finley’s statements was harmless.

III. Batson Challenge

Finley challenges as racially based the peremptory strike of a juror in his

case. “The Due Process clause of the Fifth Amendment prohibits the use of

peremptory strikes on 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 district court’s Batson ruling for clear error. United States v.

Kennedy, 707 F.3d 558, 568 (5th Cir.), cert. denied, 133 S. Ct. 2785 (2013). 

During voir dire, the prosecutor asked prospective jurors who had raised

their numbered cards in support of legalization of marijuana for medicinal

purposes to “leave your card up if you think it should just be legalized period.” 

At this point, potential Jurors 5 and 18 were the only potential jurors to leave

their cards raised. The prosecutor then engaged in follow-up questioning of

Jurors 5 and 18 on this topic, during which both expressed 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 raised a Batson challenge to the

prosecutor’s use of a peremptory strike against potential Juror 5—the only

African-American on the venire. The district court denied the challenge.

1 Finley’s comparison to Green is misplaced. Unlike in Green, where the challenged

statements were “the only direct evidence of [the defendant’s] knowledge of and access to the

firearms charged in the indictment,” 272 F.3d at 757, Finley’s statements were not necessary

to prove any element of the offenses.

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Although Finley argues that the prosecutor engaged in disparate

questioning of Juror 5 in a manner that would tend to prompt responses that

would justify striking Juror 5 and that the prosecutor’s proffered reason for

striking Juror 5 was a pretext for racial discrimination, the record supports

neither of these arguments. In short, Finley failed to meet his burden of

demonstrating purposeful 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 evidence that he

had previously possessed drugs in March of 2011.2 Finley appeals the district

court’s sentencing calculation on two grounds: (1) there was an insufficient

evidentiary basis to conclude that he committed the March 2011 offense, and (2)

the March 2011 offense was not relevant conduct under § 1B1.3(a)(2) of the

Guidelines because it was not part of the same course of conduct or common

scheme or plan as the instant offense of conviction. A district court’s

determination that unadjudicated conduct is relevant conduct under the

Guidelines is a factual finding that we review for clear error. United 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 offense of conviction.” § 1B1.3(a)(2). 

“‘Common scheme or plan’ and ‘same course of conduct’ are two closely-related

2 The case stemming from Finley’s March 2011 arrest was dismissed.

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concepts.” § 1B1.3(a)(2) cmt. n.9. “Offenses 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 each other as to warrant

the conclusion that they are part of a single episode, spree, or 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 evidence before the district court

included the testimony of Agent Cervantes, the DEA agent assigned to the

investigation of Finley’s March 2011 and the PSR, which included similar

information about the March 2011 arrest. Additionally, the PSR included

statements made by Lubecke that in late 2011, Finley informed him that he had

previously made multiple trips to South Texas to buy marijuana to sell in

Louisiana and that he had contacts in Brownsville from whom they could

purchase drugs.

Furthermore, the district court had before it the evidence adduced at trial

to prove the February 2012 offenses that Finley was convicted of. This included

evidence that in February 2012, Finley made a trip with Lubecke in a rental car

from Baton Rouge, Louisiana, to Brownsville, Texas, during which they

purchased marijuana and tried to transport it back north through the Sarita

Border Patrol checkpoint in order to sell it. The same type of trip was involved

in the March 2011 offense.

Based on the foregoing evidence, the district court specifically found that

Finley committed the March 2011 offense. 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 considered by the district court went

well beyond the mere fact of Finley’s arrest. See United States v. Harris, 702

F.3d 226, 230 n.1 (5th Cir. 2012) (“Because [the] PSR included the factual

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underpinnings for the prior unadjudicated arrests—not merely the fact that [the

defendant] had been arrested, but not convicted, for an offense—this case does

not involve improper reliance on the mere fact of prior arrests.”), cert. 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 prior offense after making a finding, supported by evidence, that the defendant

committed the offense).

Finley argues that because the drugs were in a “hidden compartment”

there was insufficient evidence to support the “knowledge” element of the prior

offense. See United States v. Mendoza, 522 F.3d 482, 489 (5th Cir. 2008). In

Mendoza, which involved a conviction based upon a “beyond a reasonable doubt”

burden of proof, we explained that, in a hidden compartment situation, we

traditionally require other circumstantial evidence “that is suspicious in nature

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

omitted). We need not resolve the open question of whether Mendoza applies

equally to a sentencing proceeding where the burden of proof is preponderance

of the evidence because the evidence underlying the district court’s finding is

sufficient even under Mendoza. We conclude that there was sufficient

circumstantial evidence beyond the drugs found in the hidden 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 Conduct3

3 Relevant conduct is defined as including acts that are either “part of the same course

of conduct” as the offense of conviction or part of a “common scheme or plan” as the offense of

conviction. § 1B1.3(a)(2). The district court did not specify through which avenue it reached

its relevant conduct finding. Because we determine it is plausible to find the two incidents in

question were part of the same course of conduct, we do not address whether they might also

be considered part of a common scheme or plan.

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Offenses may “qualify as 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.” 

§ 1B1.3 cmt. n.9(B). Factors bearing on this determination include “the degree

of similarity of the offenses, the regularity (repetitions) of the offenses, and the

time interval between the offenses.” Id. Here, all three factors weigh in favor

of the district court’s finding that the March 2011 offense is part of the same

course of conduct as the offense of conviction.

“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

happen only to be similar in kind.’” Rhine, 583 F.3d at 888 (quoting United

States v. Culverhouse, 507 F.3d 888, 896 (5th Cir. 2007)). In this case, there are

multiple distinct similarities between the two offenses. First, the offenses

themselves are the same—conspiracy to possess with intent to distribute a

controlled substance. Both offenses began with renting a car from Enterprise

Rent-A-Car in Baton Rouge, Louisiana. In addition, both involved Finley

traveling with an accomplice to Brownsville, Texas, where the two spent a single

night at a hotel. Also in both offenses, after a one-day stay in Brownsville,

Finley and the accomplice then began transporting drugs north through the

Sarita Border Patrol checkpoint. The amount of drugs in both offenses was

greater than a personal-use amount—5.44 kilograms of marijuana and 18.7

grams of ecstasy in the first incident and 16.8 kilograms of marijuana in the

second incident. Furthermore, the fact that the drugs were acquired in South

Texas in both incidents 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 States v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993) (finding district court

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did not err in concluding 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 two offenses here

suggest that they are part of the same course of conduct.4

When considering the regularity factor, 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.” Rhine, 583

F.3d at 889–90. The facts in this case suggest that Finley repeatedly traveled

to South Texas, purchased drugs there, and transported them north, and that

the March 2011 and February 2012 offenses were part of this regular pattern of

activity. Finley’s statement to Lubecke that he made “multiple trips” to South

Texas to purchase drugs is strong evidence that he did just that.5 The March

4 The cases cited by Finley to show otherwise are distinguishable because the offenses

in those cases shared much fewer similarities than are present here. See Rhine, 583 F.3d at

889 (concluding that similarity was lacking due to “significant” differences, including

quantities, methods of distribution, participants, nature of the transactions, and the

defendant’s role in the transactions, as well as the fact that there was no evidence that the

drugs came from a “common source, supplier, or destination”); United States v. Wall, 180 F.3d

641, 646 (5th Cir. 1999) (concluding that there were “significant differences” between the two

offenses: there was no evidence that the drugs “shared a common source, supplier, or

destination”; an accomplice was used in one incident, but not the other; and one incident

involved “large loads of marijuana secreted in the wheels and gas tank of two pick-up trucks

driven across the border,” while the other incident involved a “much smaller” load hidden in

a car).

5 Finley’s reliance on Rhine, 583 F.3d at 890–91, to suggest that his statements to

Lubecke are little evidence of regularity, because the “multiple trips” may have occurred prior

to the March 2011 offense, is misplaced. In Rhine, we concluded that regularity was lacking

because there was not “even a scintilla of evidence” that the defendant engaged in the sale of

drugs between the two offenses in question. 583 F.3d at 890. We noted that conduct occurring

prior to both the purported relevant conduct and the offense of conviction usually carries

questionable persuasive value. Id. at 890–91. However, we recognized that “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

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2011 offense appears to be one of the trips to which Finley 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., repeated, pattern of similar

unlawful conduct directly linking the purported relevant conduct and the offense

of conviction,” this factor weighs in favor of finding that the two offenses in

question were part of the same course of conduct. Id.

Finally, with regard to the temporal factor, “[w]e have ‘generally used a

year as the benchmark.’” Rhine, 583 F.3d at 886–87 (quoting United States v.

Booker, 334 F.3d 406, 414 (5th Cir. 2003)); see also United States v. Ocana, 204

F.3d 585, 590 (5th Cir. 2000) (“It is well settled in this circuit that offenses which

occur within one year of the offense of conviction may be considered relevant

conduct for sentencing.”). Since the two offenses occurred within this benchmark

period—approximately eleven months apart—this factor weighs in favor of

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

Because all three factors weigh in favor of finding that the March 2011

offense was part of the same course of conduct as the offense of conviction, the

district court did not clearly err in determining that the March 2011 offense was

relevant conduct under the Guidelines.

AFFIRMED.

conduct’ and continued through to the offense of conviction).” Id. at 891. To the extent that

the “multiple trips” that Finley described to Lubecke occurred prior to the March 2011 incident

as Finley suggests, this case would be one of the cases described in Rhine in which the prior

drug trafficking demonstrates “a specific ‘course of conduct’ [that] began before the ‘relevant

conduct’ and continued through to the offense of conviction.” Id. Therefore, Finley’s statement

to Lubecke that he made “multiple trips” to South Texas to purchase drugs is evidence that

he regularly and repeatedly committed such offenses regardless of whether they occurred

before or between the two offenses in question.

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