## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1583EM

___________ United States of America, * * Appellee, * * On Appeal from the United States v. * District Court for the * Eastern District of Missouri Mark A. Geralds, * * Appellant. *

___________ Submitted: September 21, 1998 Filed: October 19, 1998

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

___________ 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. -2- On appeal, Geralds challenges the district court’s imposition of a 330-month priso n 1 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, 199 6, the district court conducted a sentencing hearing. Several of the gov ernment'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 f requency with which these sales took place. One of the witnesses, Marcu s 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 In vestigation 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 tran saction with Jimmerson not been included, Geralds’ base offenseA sentence of 360 months was originally imposed by the district court. A t 2 Geralds’ f

irst appeal to this court, his conviction was affirmed but the case wa s rem andedfor resentencing. See United States v. Geralds , 117 F.3d 1423 (8th Cir

. 1997). Geralds was sentenced to 330 months in the second sentencing hearing. -3- level would have been 26, with a recommended sentencing range of 110 - 137 months in pr ison. The district court included the December 1992 transaction described b y Jimmerson in calculating the base offense level, and imp osed a sentence of 330 months in prison. 2 Geralds a rgues that the district court erred in including the December 199 2 transaction with Jimmerson as relevant conduct for sentencing purposes. He als o argues that the district court erred by not requiring the government to prove thi s conduct by clear and convincing evidence rather than by a preponderance of th e evide nce. In addition, in a pro se supplemental brief, Geralds set forth additiona l 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 Ina drug distribution case, quantities and types of drugs that are not specified in the count of conv iction 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 conv iction." 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 th e "similarity, regula

rity, 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-4-

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 co urse of conduct or common scheme or plan as the powder cocain e 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 a nd 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-relatedoffenses, both involved forms of cocaine, both involved a similar quan tity of cocaine, and both involved Geralds' travel to St. Louis to acquire th e cocaine and return to Southeast Missouri to distribute the co caine. Moreover, although the transaction described by Jimmerson occurred 18 months prior to the offense o f convict ion, both transactions were part of a regular pattern of drug distribution a s eviden ced by the testimony of Jimmerson, other government witnesses, and Gerald s himself. Finally, both transactions occurred within 125 miles of one another and within the state of Missouri. Accordingly, the district cour t’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 th e preponderance of the evidence, because his relevant conduct caused such a grea t increase in his sentence. We have previously acknowledged "the possibility that the prepon derance standard the Court approved for garden variety sentencin g determinations may fail to comport with due process where, as here, a sentence-5-

enhancemen t

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 w e concluded that the result in that case would be the same under eithe r st andard. 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 ongoin g
cou rse of drug distribution. Even assuming, arguendo, that the clear and convincin g 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.