FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 1/14/99 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 96-9455

 

D. C. Docket No. CR496-76-WTM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SILVIO GOMEZ,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Georgia

 

(January 14, l999)

Before TJOFLAT and HULL, Circuit Judges, and KRAVITCH, Senior Circuit Judge.
1

 These witnesses were originally Gomez’ co-defendants in the conspiracy charge; they

pled guilty prior to trial.

2

TJOFLAT, Circuit Judge:

The appellant, Silvio Gomez, was convicted by a jury on one count of conspiracy to

possess with intent to distribute heroin, cocaine, and crack cocaine, in violation of 21 U.S.C. §

846. The conspiracy operated out of the Sparkling City Car Wash in Savannah, Georgia. 

Gomez, a resident of Miami, was alleged to be one of the operation’s suppliers. Government

witnesses who were involved in the operation testified that Gomez sold them powdered cocaine

on repeated occasions over the course of a two-year period; they in turn sold the cocaine (in

powdered or “crack” form) out of the Sparkling City Car Wash.1

 Each sale by Gomez involved

at least one-quarter kilogram of cocaine. Another Government witness, Leanor Leal, was not

involved in the Savannah operation but testified that, near the time Gomez allegedly began

supplying drugs to that operation, he sold two kilograms of cocaine to her boyfriend, Danny

Saldana.

At trial, Gomez testified on his own behalf and denied any involvement in the

conspiracy. He denied selling any cocaine to the alleged co-conspirators or to Danny Saldana;

indeed, he stated that he had never sold drugs to anyone.

I.

Gomez’ main contention on appeal is that the district court should have given the

following requested jury instruction:

Members of the jury, if, from the evidence presented, you find that only a buyer

and seller relationship existed between this Defendant and the witnesses who
3

have admitted their participation in the Sparkling City Car Wash operation, then,

in such event you must acquit this Defendant. Mere proof of the existence of a

Buyer-Seller relationship is not enough to convict one as a co-conspirator on drug

conspiracy charges.

We review the district court’s refusal to give the requested instruction for an abuse of discretion. 

See United States v. Trujillo, 146 F.3d 838, 846 (11th Cir. 1998). Refusal to give a jury

instruction constitutes an abuse of discretion only if, inter alia, the proposed instruction dealt

with an issue properly before the jury. See United States v. Lyons, 53 F.3d 1198, 1200 (11th Cir.

1995). 

The proposed jury instruction did not deal with an issue properly before the jury. The

jury in this case had to make a credibility choice between Gomez, who denied any drug sales,

and the Government’s witnesses, who stated that Gomez made repeated sales of substantial

quantities to them. If the jury believed Gomez, it would conclude that he was entirely innocent

of wrongdoing because he had sold no drugs whatsoever. If the jury believed the Government’s

witnesses, it would conclude that Gomez had engaged in a pattern of sales sufficient to link him

to the conspiracy – the quantity and frequency of the sales would have put Gomez on notice that

the drugs were being purchased with an intent to distribute. See United States v. Cordova, 157

F.3d 587, 597 (8th Cir. 1998) (noting that a buyer-seller jury instruction “is appropriately given in

a single transaction case involving small quantities of drugs consistent with personal use”);

United States v. Berry, 133 F.3d 1020, 1023 (7th Cir. 1998) (noting that “[e]vidence of a

conspiracy, as opposed to a buyer-seller relationship, may include transactions involving large

quantities of drugs [and] prolonged cooperation between the parties”). Under neither scenario

could the jury reasonably conclude that Gomez was in a mere buyer-seller relationship with the

members of the conspiracy. See United States v. Canino, 949 F.2d 928, 941 (7th Cir. 1991)
2

 The obstruction of justice points were based on Gomez’ alleged perjury in testifying

that he had never sold drugs.

4

(holding that where the Government alleged sales of large quantities of drugs and the

defendants’s defense was improper venue, a buyer-seller instruction “would have been an

absurdity given the evidence submitted at trial”). The district court therefore did not abuse its

discretion in refusing to give the proposed instruction.

II.

Gomez also challenges the calculation of his offense level under the Sentencing

Guidelines. The Sentencing Guidelines create differing base offense levels for drug offenses

depending on the quantity of drugs involved. See United States Sentencing Commission,

Guidelines Manual, § 2D1.1(c) (Nov. 1, 1995). The district court, in calculating Gomez’ base

offense level, determined that Gomez was responsible for selling three and one-quarter

kilograms of cocaine; this amount included the two kilograms sold to Danny Saldana. This

resulted in a base offense level of twenty-eight, see U.S.S.G. § 2D1.1(c)(6), to which two points

were added for obstruction of justice, resulting in a total offense level of thirty.2 Gomez had a

criminal history category of three; thus, the applicable sentencing range was 121-151 months. 

See U.S.S.G. ch. 5, pt. A. He was sentenced to 136 months imprisonment.

The district court erred in including the cocaine sold to Danny Saldana in calculating

Gomez’ base offense level. Under the sentencing guidelines, a defendant may be held

accountable at sentencing for illegal conduct not in furtherance of the offense of conviction if

that conduct was "part of the same course of conduct or common scheme or plan" as the offense
5

of conviction. U.S.S.G. § 1B1.3(a)(2). Whether two acts are part of the "same course of

conduct" depends largely on how the relevant "course of conduct" is defined. If the course of

conduct in this case is merely the distribution of cocaine, then the sale to Saldana would

certainly be part of that course of conduct. This, however, seems too broad of a characterization. 

The course of conduct on which the indictment and the trial focused was the distribution of

cocaine through the Sparkling City Car Wash operation, out of which the conspiracy operated

and from which the relevant "intent to distribute" applied. Therefore, only sales that are related

to the Sparkling City Car Wash operation should be considered part of the same course of

conduct. 

Danny Saldana was in no way connected to the Sparkling City Car Wash operation; the

testimony relating to his cocaine purchases presumably was elicited pursuant to Federal Rule of

Evidence 404(b) merely as evidence of Gomez’ intent to distribute. See United States v.

Hernandez, 896 F.2d 513, 521-22 (11th Cir. 1990). Consequently, the sales to Saldana were not

part of the “same course of conduct” as the conspiracy, and should not have been included in

calculating Gomez’ base offense level.

Looking at the issue another way, the background commentary to U.S.S.G. § 1B1.3(a)(2)

states that it is generally meant to apply to offenses that "involve a pattern of misconduct that

cannot readily be broken into discrete, identifiable units." When an act of misconduct can be

easily distinguished from the charged offense, a separate charge is required. See United States v.

Blanc, 146 F.3d 847, 852-54 (11th Cir. 1998). In this case, the sale to Saldana is conceptually

distinct from the Sparkling City Car Wash conspiracy, and easily could have been brought as a
3

 Maxwell is slightly different from this case in that Maxwell’s side dealings involved

cocaine while the conspiracy with which he was charged involved dilaudid, whereas Gomez’

side dealings and the conspiracy with which he was charged both involved cocaine. Maxwell,

however, as noted above, distributed at least some cocaine as part of his conspiracy. More

importantly, the fact that Maxwell’s side dealings involved a different narcotic while Gomez’

side dealings involved the same narcotic simply is not a substantial distinction. 

6

separate charge against Gomez. It was therefore inappropriate to use this sale in calculating the

sentence for Gomez' conspiracy conviction.

Finally, we note that this case is virtually indistinguishable from United States v.

Maxwell, 34 F.3d 1006 (11th Cir. 1994). In that case, Maxwell was indicted for conspiracy to

possess with intent to distribute dilaudid. The conspiracy operated as follows: Maxwell and

another individual supplied dilaudid (and, on one occasion, cocaine) to an individual named

Lundy; Lundy then sold the drugs to three other individuals who sold them to the end users. The

Government, in order to prove criminal intent on the part of Maxwell (who had pled not guilty),

introduced evidence of Maxwell’s other drug dealings. This evidence included the sale of 546

grams of cocaine to an individual not in the conspiracy; these 546 grams were then added to the

cocaine sale that Maxwell had made as part of the conspiracy in calculating his sentence. We

vacated Maxwell’s sentence on the ground that the district court clearly erred in including the

546 grams in determining Maxwell’s base offense level.3

This is not to say that, in calculating a defendant's base offense level for a drug

conspiracy conviction, uncharged drug sales to persons outside of the conspiracy can never be

included. On the contrary, we have previously held -- and continue to hold -- that uncharged

criminal activity outside of a charged conspiracy may be included in sentencing if the uncharged

activity is sufficiently related to the conspiracy for which the defendant was convicted. See
4

 Gomez also raises challenges to the sufficiency of the evidence, to the admission of

certain evidence relating to prior convictions, and to the admission of the testimony of Leanor

Leal. We have reviewed these challenges and determined that they are without merit.

7

United States v. Fuentes, 107 F.3d 1515, 1525-26 (11th Cir. 1997); Maxwell, 34 F.3d at 1011;

see also U.S.S.G. § 1B1.3, comment. (n.9(B) (giving examples of factors to be considered in

determining whether an offense is part of the "same course of conduct" as another offense,

including "the degree of similarity of the offenses, the regularity (repetitions) of the offenses,

and the time interval between the offenses"). Under the facts of this case, however, the

uncharged drug sales were totally unrelated to the conspiracy, and thus should not have been

included in calculating the defendant's base offense level. 

Removing the two kilograms sold to Danny Saldana from the calculation brings the total

quantity of drugs attributable to Gomez down to one and one-quarter kilograms, resulting in a

base offense level of twenty-six. See U.S.S.G. § 2D1.1(c)(7). This, combined with two points

for obstruction of justice and a criminal history category of three, results in a sentencing range of

97-121 months. See U.S.S.G. ch. 5, pt. A.

III.

For the foregoing reasons, the case is remanded for resentencing. In all other respects,

the judgment of the district court is affirmed.4

AFFIRMED in part, VACATED and REMANDED in part.