United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1583EM

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United States of America, *

*

Appellee, *

* On Appeal from the United States

v. * District Court for the

* Eastern District of Missouri

Mark A. Geralds, *

*

Appellant. *

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Submitted: September 21, 1998

Filed: October 19, 1998

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Before BOWMAN, Chief Judge, WOLLMAN, and KELLY, Circuit Judges.

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KELLY, Circuit Judge.

Mark A. Geralds pled guilty to one count of knowingly attempting to possess,

with the intent to distribute, a controlled substance, in violation of 21 U.S.C. § 846. 
The Honorable Stephen N. Limbaugh, Senior United States District Judge for 1

the Eastern District of Missouri.

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On appeal, Geralds challenges the district court’s imposition of a 330-month prison

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sentence. We affirm.

I. BACKGROUND

On May 18, 1995, Geralds was charged in a one-count indictment with

knowingly attempting to possess, with the intent to distribute, cocaine, in violation of

21 U.S.C. § 846. On December 27, 1995, Geralds entered a conditional guilty plea.

On March 22, 1996, the district court conducted a sentencing hearing. Several

of the government's witnesses testified about prior drug transactions they had entered

into with Geralds, including the quantities of drugs they had purchased from Geralds

and the frequency with which these sales took place. One of the witnesses, Marcus

Jimmerson, testified that he had purchased 18 ounces of crack cocaine from Geralds

in December of 1992. Jimmerson also described a number of other drug transactions

involving Geralds. Two government agents, Cooper and Fisher, testified about their

interviews with Geralds, in which he had admitted his involvement in a number of drug

transactions. Geralds himself testified, stating that some of the government's testimony

was untrue. 

The Presentence Investigation Report concluded that, based on the information

provided by Geralds and Jimmerson, Geralds was accountable for at least 500 grams,

but less than 1.5 kilograms, of cocaine base, and in excess of two kilograms of cocaine.

Accordingly, the recommended base offense level was 36. Because Geralds’ criminal

history category was V, the recommended sentencing range was 292 - 365 months in

prison. Had the transaction with Jimmerson not been included, Geralds’ base offense
A sentence of 360 months was originally imposed by the district court. At

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Geralds’ first appeal to this court, his conviction was affirmed but the case was

remanded for resentencing. See United States v. Geralds, 117 F.3d 1423 (8th Cir.

1997). Geralds was sentenced to 330 months in the second sentencing hearing.

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level would have been 26, with a recommended sentencing range of 110 - 137 months

in prison. The district court included the December 1992 transaction described by

Jimmerson in calculating the base offense level, and imposed a sentence of 330 months

in prison.2

Geralds argues that the district court erred in including the December 1992

transaction with Jimmerson as relevant conduct for sentencing purposes. He also

argues that the district court erred by not requiring the government to prove this

conduct by clear and convincing evidence rather than by a preponderance of the

evidence. In addition, in a pro se supplemental brief, Geralds set forth additional

arguments. This opinion reflects the arguments included by Geralds in his pro se brief

as well as the arguments raised in oral argument.

II. ANALYSIS

A. Relevant Conduct

In a drug distribution case, quantities and types of drugs that are not specified

in the count of conviction are properly included in the offense level calculation if they

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

count of conviction." United States v. Sleet, 893 F.2d 947, 949 (8th Cir. 1990)

(quoting U.S.S.G. § 1B1.3, comment). The district court should consider the

"similarity, regularity, and temporal proximity" of the conduct in determining whether

it is part of the same course of conduct or common scheme or plan. United States v.

Chatman, 982 F.2d 292, 294 (8th Cir. 1992) (quoting United States v. Hahn, 960 F.2d
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903, 910 (9th Cir. 1992)). This determination is factual and may be reversed only if

it is clearly erroneous. Sleet, 893 F.2d at 949.

We conclude that the district court did not clearly err in determining that

Geralds’ possession of 18 ounces of crack cocaine in December of 1992 was part of

the same course of conduct or common scheme or plan as the powder cocaine

distribution offense for which he was convicted. The record supports the district court's

finding that the appellant possessed this crack cocaine as part of an ongoing course of

conduct and as part of a common plan or scheme to distribute cocaine throughout the

state of Missouri. The two transactions were similar in a number of ways: both were

distribution-related offenses, both involved forms of cocaine, both involved a similar

quantity of cocaine, and both involved Geralds' travel to St. Louis to acquire the

cocaine and return to Southeast Missouri to distribute the cocaine. Moreover, although

the transaction described by Jimmerson occurred 18 months prior to the offense of

conviction, both transactions were part of a regular pattern of drug distribution as

evidenced by the testimony of Jimmerson, other government witnesses, and Geralds

himself. Finally, both transactions occurred within 125 miles of one another and within

the state of Missouri. Accordingly, the district court’s inclusion of the December 1992

transaction in the calculation of Geralds’ base offense level was proper.

B. Standard of Proof

Geralds also argues that the district court should have required the government

to prove his relevant conduct by clear and convincing evidence, rather than by the

preponderance of the evidence, because his relevant conduct caused such a great

increase in his sentence. We have previously acknowledged "the possibility that the

preponderance standard the Court approved for garden variety sentencing

determinations may fail to comport with due process where, as here, a sentence
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enhancement factor becomes 'a tail which wags the dog of the substantive offense.'"

United States v. Townley, 929 F.2d 365, 369 (8th Cir. 1991) (quoting McMillan v.

Pennsylvania, 477 U.S. 79, 88 (1986)). In Townley, we did not decide this question

because we concluded that the result in that case would be the same under either

standard. Townley, 929 F.2d at 370. For the same reason, we decline to decide that

issue here. There was abundant testimony that Geralds was engaged in an ongoing

course of drug distribution. Even assuming, arguendo, that the clear and convincing

standard applies, the government has met its burden of proof.

III. CONCLUSION

Because the district court did not clearly err by determining that the December

1992 transaction described by Marcus Jimmerson was relevant conduct and because

the district court properly applied the preponderance of the evidence standard to this

conduct, we affirm Geralds' sentence.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.