IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-40238

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RODNEY PIPPENS,

Defendant-Appellant.

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No. 95-40239

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RAYMOND JENKINS,

Defendant-Appellant.

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Appeals from the United States District Court

for the Eastern District of Texas

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September 22, 1995
* Local Rule 47.5.1 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens

on the legal profession." Pursuant to that rule, the court has determined

that this opinion should not be published.

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Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Rodney Pippens and Raymond Jenkins appeal the sentences they

received following their respective pleas of guilty of possession

of crack cocaine with intent to distribute in violation of

21 U.S.C. § 841(a)(1). Finding no error, we affirm.

I.

The Plano police department conducted an investigation involving the sale of crack cocaine out of a residence at 1501

Francis Lane. Between April and August 1994, undercover police

officer Paul Cogwell frequented the house and purchased crack

cocaine from a variety of individuals, including Pippens and

Jenkins.

Pippens pleaded guilty to one count of possession of crack

cocaine with intent to distribute. Originally, the probation

officer preparing Pippens's presentence report ("PSR")

recommended holding him responsible for the 18.93 grams of crack

cocaine purchased by Cogwell during the conspiracy. The

government objected to the amount, arguing that Pippens should be

held accountable for the 59.25 grams of crack cocaine seized from

Jenkins, Christopher Taylor, and Chester Dumas on August 25,
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1994. Pippens objected to the 18.93 grams, arguing that he

should not be held responsible for any transactions that occurred

between July 6 and August 6 and after August 16 because he was in

custody during those periods. The probation officer amended the

PSR to recommend holding Pippens responsible for the original

18.93 grams plus the 59.25 grams seized on August 25, for a total

of 78.18 grams.

At the sentencing hearing, Pippens objected to the quantity

of crack cocaine attributed to him, specifically challenging the

recommendation that he be held responsible for the 59.25 grams

from the August 25 transaction. The district court determined

that, even without holding Pippens responsible for the August 25

transaction, there was sufficient evidence that more than fifty

grams was sold from the house during the pendency of the

conspiracy and overruled the objection. 

Jenkins also pleaded guilty to one count of possession of

crack cocaine with intent to distribute. The probation officer

preparing his PSR recommended holding Jenkins responsible for the

same 78.18 grams of cocaine. Jenkins objected to the quantity of

crack cocaine attributed to him. He contended that the 59.25

grams in his possession on August 25 cannot be relevant conduct

because that crack cocaine was not related to the count of

conviction. The district court overruled his objections because

it found that Jenkins was responsible for the sale or

distribution of at least fifty grams.
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II.

A.

Pippens argues that the district court improperly attributed

more than fifty grams of crack cocaine to him because there is

insufficient evidence to support that quantity. We uphold a

district court's factual findings regarding the determination of

a defendant's relevant conduct unless they are clearly erroneous.

United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir.), cert.

denied, 115 S. Ct. 180 (1994).

At the sentencing hearing, Cogwell testified that during the

period between April and August 1994, he made 114 drug buys at

the Francis Lane residence. He estimated that during this

period, approximately 40 or 50 sales of crack cocaine occurred

per day at the house and that one dosage of crack cocaine was 1.5

grams. Conservatively estimating only four sales of one-tenth

gram per day during the conspiracy, Cogwell testified that more

than fifty grams of crack cocaine were sold from the house during

the conspiracy. 

Pippens was an active participant in the conspiracy and even

bragged that he was selling crack cocaine while he was supposed

to be under house arrest. The district court properly concluded

that Pippens was responsible for more than fifty grams of crack

cocaine. See United States v. Sherrod, 964 F.2d 1501, 1507 (5th

Cir.) (holding that district court may include estimates of

quantity of drugs for sentencing purposes), cert. denied, 113 S.

Ct. 832, 834 (1992) and 113 S. Ct. 1367, 1422, 1834 (1993).
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Pippens argues that, even if there is sufficient evidence to

support the finding that he was responsible for more than fifty

grams of crack cocaine, he did not have adequate notice that the

district court would consider Cogwell's testimony. A defendant

must receive notice of any facts that may affect his sentence and

a meaningful opportunity to respond. FED. R. CRIM. P. 32(a)(1);

United States v. George, 911 F.2d 1028, 1029 (5th Cir. 1990).

Under FED. R. CRIM. P. 32, the district court may base sentencing

decisions on matters outside the PSR if the defendant is given an

opportunity to address the issue. George, 911 F.2d at 1029.

Pippens received notice, in the addendum to the PSR and the

revised PSR, that the government sought to hold him responsible

for more than fifty grams of cocaine, and more specifically, for

all of the crack cocaine sold as part of the conspiracy. He also

was given an opportunity to cross-examine Cogwell. Pippens

received adequate notice under rule 32. See id., 911 F.2d at

1029.

B.

Jenkins argues that the district court made insufficient

findings of fact during the sentencing hearing in violation of

FED. R. CRIM. P. 32(c)(3)(D). If the defendant objects to the

findings of fact in the PSR, the district court must resolve the

specifically-disputed issues of fact if it intends to rely upon

those facts at sentencing. United States v. Smith, 13 F.3d 860,

867 (5th Cir.), cert. denied, 114 S. Ct. 2151 (1994). In
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complying with rule 32, the court may accept the facts in the PSR

even if they are in dispute. United States v. Mora, 994

F.2d 1129, 1141 (5th Cir.), cert. denied, 114 S. Ct. 417 (1993).

At sentencing, Jenkins objected to the inclusion of the

crack cocaine seized during his August 25 arrest. The district

court overruled the objection and adopted the findings of the

PSR. These findings were sufficient to comply with rule 32.

Mora, 994 F.2d at 1141.

Jenkins also argues that the district court improperly

included as relevant conduct the 59.25 grams of crack cocaine he

possessed when he was arrested. He contends that he pleaded

guilty to a substantive count associated with the Francis Lane

conspiracy and that the 59.25 grams were not related to that

conspiracy.

We review for clear error the district court's finding that

the August 25, 1994, incident is relevant conduct. United States

v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993). To determine a

defendant's base offense level, the district court may consider

relevant conduct that includes "quantities of drugs not specified

in the count of conviction if they were part of the same course

of conduct or part of a common scheme or plan as the count of

conviction." Id. (internal quotations and citation omitted); see

§ 1B1.3, comment. (n.9). Offenses that are not part of a common

scheme or plan constitute 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,
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spree, or ongoing series of offenses." Section 1B1.3, comment.

(n.9(B)). 

In drug cases, we have broadly defined what constitutes the

"same course of conduct" or "common scheme or plan." Id. To

qualify as a relevant conduct, there must be "sufficient

similarity and temporal proximity to reasonably suggest that

repeated instances of criminal behavior constitute a pattern of

criminal conduct." United States v. Bethley, 973 F.2d 396, 401

(5th Cir. 1992) (internal quotations and citation omitted), cert.

denied, 113 S. Ct. 1323 (1993).

The evidence established that Jenkins was selling crack

cocaine from the Francis Lane house and that during the pendency

of the conspiracy he was arrested in possession of 59.25 grams of

crack cocaine. Although the 59.25 grams may not have been part

of the "common scheme or plan" of the Francis Lane conspiracy,

this conduct constitutes the same course of conduct as the count

of conviction. As with the count of conviction, Jenkins

possessed the 59.25 grams of crack cocaine with the intent to

distribute it. See United States v. Hernandez-Palacios, 838

F.2d 1346, 1349 (5th Cir. 1988) (holding that court may infer

intent to distribute from proof of possession of a large quantity

of drugs). The district court properly considered the 59.25

grams of crack cocaine in determining relevant conduct.

AFFIRMED.