1

 The Honorable Richard H. Battey, United States District Judge for the District

of South Dakota, sitting by designation.

2

 The Honorable Michael J. Melloy, then United States District Judge for the

Northern District of Iowa, now United States Circuit Judge for the Eighth Circuit

since February 27, 2002.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-1655

___________

United States of America, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the Northern

* District of Iowa.

Jason M. Weiland, *

*

Defendant - Appellee. *

___________

Submitted: December 11, 2001

Filed: March 25, 2002

___________

Before McMILLIAN and MURPHY, Circuit Judges, and BATTEY,1

 District Judge.

___________

MURPHY, Circuit Judge.

Jason M. Weiland pled guilty to being a user of controlled substances in

possession of firearms, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2), and to

conspiracy to distribute methamphetamine, cocaine, LSD, psilocin mushrooms, and

marijuana, in violation of 21 U.S.C. § 846. The district court2

 sentenced him to 80
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months imprisonment on each count, to be served concurrently. The government

appeals, arguing that Weiland's 1998 conviction for marijuana possession should

have been counted in his criminal history score rather than as relevant conduct to the

conspiracy. We affirm.

The conspiracy to which Weiland pled was alleged to have taken place

"between about 1996 and 1999." In 1998 and 2000 Weiland was convicted of two

state drug offenses for conduct that occurred during the time frame of the conspiracy.

In 1998 he was convicted of marijuana possession resulting from a June 1997 search

of his apartment. The affidavit in support of the warrant for that search stated that a

confidential informant had seen the following in Weiland's apartment: four pounds

of cocaine powder, five ounces of methamphetamine, LSD, steroids, a digital scale,

razor blades, and baggies. The affidavit also reported the informant's statement that

he had been involved for three years in the distribution of LSD, methamphetamine,

cocaine, and marijuana and that Weiland was the source of his drugs. In their search

of Weiland's apartment, officers found small amounts of marijuana and

methamphetamine, lines of cocaine on a mirror, a hand held scale, several new plastic

vials, $1809 in cash, and firearms. Weiland was arrested and charged with possession

of cocaine, methamphetamine, and marijuana. Two of the three charges were

dismissed, and Weiland was convicted in 1998 on the marijuana charge. In the fall

of 1999, the same officer who had prepared the 1997 search warrant submitted

another application to search Weiland's residence. In the new affidavit the officer

repeated statements of the confidential informant from the 1997 affidavit and listed

the contraband seized in the earlier search. When the new warrant was executed at

Weiland's residence in October 1999, officers found methamphetamine, items used

to manufacture methamphetamine, and seven guns. Weiland was thereafter convicted

in 2000 of possession and manufacture of methamphetamine in violation of Iowa law.

Subsequently, federal charges were brought in the Northern District of Iowa.

Weiland was indicted for violating federal firearms laws based on the guns seized by

Iowa authorities in 1999, and he was later charged by information with conspiracy to
3

The government did not object to the probation officer's treatment of

Weiland's 2000 conviction as relevant conduct, and no issue was raised about it at

sentencing.

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distribute methamphetamine, cocaine, LSD, psilocin mushrooms, and marijuana in

violation of 21 U.S.C. § 846. As part of a plea agreement, Weiland stipulated that he

had knowingly and intentionally distributed those five drugs in the Dubuque area

"between about 1996 and 1999." Weiland pled guilty to both the federal indictment

and the information, and he was sentenced under the United States Sentencing

Guidelines (USSG). 

The presentence investigation report had calculated Weiland's total offense

level at 27 with a criminal history category of I. The probation officer did not assign

any criminal history points for Weiland's 1998 or 2000 Iowa convictions because the

defendant's conduct in each case was "directly related to the instant offense."3

Weiland did receive one criminal history point for a July 14, 2000 Wisconsin

conviction for possession with intent to deliver amphetamine where the conduct was

alleged to have occurred at a time after the charged conspiracy. Weiland's resulting

guidelines range was computed by the court to be 70 to 87 months. At sentencing,

the district court found that Weiland's 1998 conviction was relevant conduct because

it was within the time frame of the charged conspiracy, the probable cause evidence

used to support the 1997 search was later used as part of the evidence for the

conspiracy, and the possession charge involved one of the drugs alleged to be

distributed by the conspiracy. The district court sentenced Weiland to concurrent 80

month terms.

On its appeal the government argues that the district court erred by not

counting the 1998 Iowa marijuana conviction as part of Weiland's criminal history.

It complains that treating this offense as relevant conduct gave Weiland three fewer

criminal history points than he deserved. It believes he should have received one

additional point for that offense and two for engaging in the conspiracy while on
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probation for the 1998 conviction. United States Sentencing Commission, Guidelines

Manual, §4A1.1(d) (Nov. 2000). This would have given him a total of four criminal

history points, placing him in criminal history category III with a guidelines range of

87 to 108 months. See USSG §4A1.1(c)-(d).

Weiland argues that the 1998 conviction was relevant conduct because it was

related to his conviction for conspiracy. He observes that there is both geographical

and temporal proximity between his 1998 conviction and the conspiracy. Both

occurred in Dubuque, Iowa, and the 1998 conviction was within the time frame of the

conspiracy. Weiland also points out that both prosecutions were by the Dubuque

Drug Task Force and both search warrant applications for his residence were prepared

by the same officer. The conspiracy charge also includes drugs – methamphetamine,

cocaine, marijuana and LSD – connected with the 1997 search and the affidavit in

support of that search.

To resolve this appeal, we must start with the guideline provisions on criminal

history and relevant conduct. Key to the analysis is determining what conduct fell

within Weiland's "instant offense." The guidelines direct courts to count any previous

sentence in calculating a defendant's criminal history, as long as the sentence was not

for conduct that is "part of the instant offense." USSG §4A1.2(a)(1). Relevant

conduct is defined as "[c]onduct that is part of the instant offense," USSG §4A1.2,

comment. (n.1), and includes "all acts... that occurred during the commission of the

offense of conviction, in preparation for that offense, or in the course of attempting

to avoid detection or responsibility for that offense." USSG §1B1.3(a)(1). Relevant

conduct is not to be counted in calculating a defendant's criminal history. USSG

§4A1.2, comment. (n.1). 

Conduct underlying a prior conviction is not relevant to the instant offense if

the former conviction was a "severable, distinct offense" from the latter. United

States v. Davidson, 195 F.3d 402, 409 (8th Cir. 1999), cert. denied, 528 U.S. 1180

(2000) (quoting United States v. Blumberg, 961 F.2d 787, 792 (8th Cir. 1992)).
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Several factors are used to judge whether a prior conviction represents a "severable,

distinct offense," including whether there was temporal and geographical proximity,

a common scheme or plan, or common victims. Davidson, 195 F.3d at 409. 

The determination that Weiland's 1998 conviction was relevant conduct

involved a fact intensive inquiry, and we recognize the district court's sentencing

expertise and greater familiarity with the factual record. Buford v. United States, 532

U.S. 59, 65-66 (2001); Koon v. United States, 518 U.S. 81, 97-100 (1996). When

application of the guidelines involves mixed questions of fact and law, an abuse of

discretion standard of review is used. Koon, 518 U.S. at 100. A district court abuses

its discretion when it makes an error of law or a clearly erroneous assessment of the

evidence. Id.; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).

The government contends that personal use drugs are not relevant conduct for

conspiracy to distribute cases. It cites in support United States v. Fraser, 243 F.3d

473, 474-76 (8th Cir. 2001), a case in which we held that drugs that had been acquired

for personal consumption were not relevant conduct because they were not within

"the common scheme or plan" of selling, giving, or passing drugs to another. The

government asks that the reasoning in Fraser, a possession with intent to distribute

case, be extended to conspiracy to distribute cases. It argues that convictions

involving personal use drugs should not be considered relevant conduct in a

conspiracy case. 

We note that Fraser itself distinguished conspiracy cases from those dealing

with possession with intent to distribute, finding "an important distinction" in respect

to sentencing. Id. at 475. In conspiracy cases, "all reasonably foreseeable drug

quantities" are to be used to determine the base offense level, that is those quantities

that are "part of the same course of conduct or common scheme or plan

as the offense of conviction," are relevant conduct. USSG

§1B1.3(a)(2).... When a defendant, who is a member of a conspiracy to
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distribute, purchases drugs for her personal use from a co-conspirator,

the personal-use quantities "'are relevant in determining the quantity of

drugs the defendant knew were distributed by the conspiracy....'" What

the buyer intends to do with the drugs, in this situation, is irrelevant.

Id. (quoting United States v. Innamorati, 996 F.2d 456, 492 (1st Cir. 1993)).

Following the lead of Fraser, we conclude that drugs that are "part of the same course

of conduct or common scheme or plan" of the conspiracy are to be counted as

relevant conduct for purposes of determining the base offense level. USSG

§1B1.3(a)(2). They are likewise to be considered "part of the instant offense" when

computing criminal history under the guidelines. USSG §4A1.2, comment. (n.1)).

The record here shows that the 1998 conviction was part of a common plan or

scheme to distribute several types of drugs in the Dubuque area during the time

period of the conspiracy. The underlying conduct for both the 1998 conviction for

possession and the 2001 conviction for conspiracy occurred in the Dubuque area, and

both crimes were investigated by the same law enforcement officer. The conspiracy

charge also involved the same types of drugs as found in Weiland's residence in the

1997 search – methamphetamine, marijuana, and cocaine – and the criminal intent in

both was similar. Contrary to the argument that the 1997 search of Weiland's

apartment only involved personal use drugs, the search uncovered other indicia of

drug dealing – a hand held scale, plastic vials, a large amount of cash, and firearms.

This evidence was consistent with the statements of the confidential informant –

statements used in support of the application for the search warrant – that Weiland

had been involved in the distribution of methamphetamine, cocaine, marijuana and

LSD in the Dubuque area for several years. The government admitted at the

sentencing hearing that some of the evidence used to support probable cause for the

1997 search warrant was also used as evidence for the conspiracy. It also admitted

at oral argument in this court that it could have introduced the possession conviction

as substantive evidence of the conspiracy if there had been a trial on the charge.
4

In Thomas the court held that the defendant's 1986 drug offense could serve

as one of the two necessary predicate felonies to his conviction for a 1983-1988

conspiracy which had not yet terminated. 894 F.2d at 997.

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United States v. Kenyon, 7 F.3d 783, 787 (8th Cir. 1993), supports the treatment

of the 1997 offense as relevant conduct. In Kenyon, we held that a prior conviction

for possession of cocaine was relevant conduct for a conspiracy to possess with intent

to deliver cocaine. The conduct underlying the state possession conviction

"comprise[d] part of the conduct alleged in the count to which [the defendant] pled

guilty...." Id. Because the earlier offense was "part of the same criminal scheme"

and was "committed within the same time period" it was relevant conduct. Id.

Similarly, we conclude that Weiland's 1998 conviction was for conduct that was part

of the same criminal scheme as the conspiracy and was therefore properly calculated

as relevant conduct.

The government cites a number of cases that are factually different from this

one. United States v. Thomas, 894 F.2d 996, 997 (8th Cir. 1990), did not involve a

relevant conduct analysis, but rather an analysis of whether the defendant was

properly classified as a career offender.4

 Our subsequent holding in Kenyon makes

it clear that all facts and circumstances of an offense must be examined when the

issue is relevant conduct. See also United States v. Loveless, 139 F.3d 587, 594-95

(8th Cir. 1998) (severable and distinct offense where no evidence that drugs in prior

California conviction were intended to be distributed in Nebraska); United States v.

Torres-Diaz, 60 F.3d 445, 448-49 (8th Cir. 1995) (conviction for maintaining a party

house counted as criminal history because intent different from distribution); United

States v. Hopson, 18 F.3d 465, 468 (7th Cir. 1994) (evidence showed a prior

possession conviction was a severable and distinct offense); United States v. Escobar,

992 F.2d 87, 89-90 (6th Cir. 1993) (severable and distinct offense where there was an

insufficient temporal relationship between possession charge and overt acts in the

conspiracy). 
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The evidence here shows that the 1998 drug conviction was not a severable and

distinct offense from the charged conspiracy for which Weiland was convicted in

2001. Both offenses had temporal and geographic proximity and involved the same

criminal scheme, and the fact that the same types of drugs were involved in both

convictions distinguishes this case from United States v. Flores, 149 F.3d 1272, 1281

(10th Cir. 1998). We conclude that the district court did not abuse its discretion by

treating Weiland's 1998 conviction as relevant conduct. 

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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