1 This successive appeal has been submitted to the panel that decided the

original appeal. See Operating Procedure 6(b). After examining the briefs and the

record, we have concluded that oral argument is unnecessary. Thus, the appeal is

submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 2, 20051

Decided December 16, 2005

Before

Hon. JOEL M. FLAUM, Chief Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-3201

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, Appeal from the United States District

 Court for the Western District

of Wisconsin.

v.

No. 03-CR-051-S

LAWRENCE L. OLSON, 

Defendant-Appellant. John C. Shabaz,

Judge.

ORDER

In this successive appeal, Lawrence Olson contends that the district court

erred in increasing his criminal history score one point for a 1995 state drug

conviction. Specifically, Olson argues that the conduct underlying the conviction

was possession of marijuana with intent to distribute, which constitutes relevant

conduct for sentencing purposes and, therefore, cannot be used to increase his

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-3201 2

criminal history score. Because the district court did not clearly err in its factual

findings, we affirm Olson’s sentence.

I. Background

We assume the reader has some familiarity with the general facts of this case

as set forth in United States v. Olson, 408 F.3d 366 (7th Cir. 2005). On July 23,

2003, Olson pled guilty to being a felon in possession of a firearm and possession of

marijuana with intent to distribute. The district court subsequently sentenced

Olson to 87 months in prison. In calculating Olson’s criminal history score for the

purposes of determining his sentence under the United States Sentencing

Guidelines, the district court assessed one criminal history point for Olson’s

conviction in a Rock County Wisconsin Circuit Court Case (No. 95 CF 304B) (“Rock

County”) for possession of marijuana.

In the Rock County case, Olson was the lone back-seat passenger in a car

that was stopped by police officers in February of 1995. In conducting a search of

the vehicle, police officers found a large plastic bag containing six smaller bags of

marijuana tucked between the seats in the rear of the car. One of the bags weighed

30.2 grams, two weighed 7.5 grams, and the other three weighed 4.6, 4.7 and 4.8

grams, respectively. The police arrested Olson and transported him to the police

station, where one more plastic bag containing 2.3 grams of marijuana fell out of his

clothes. The front-seat occupants in the car told the police that the marijuana was

Olson’s and that they had smoked some of it with Olson while in the car. Olson was

ultimately convicted of possession of marijuana. 

The district judge used Olson’s Rock County conviction to increase his

criminal history score by one point. Olson appealed his conviction and sentence,

alleging (among other things) that the district court erred in using the Rock County

conviction to increase his sentence because Olson conceded in his plea agreement

that he had been selling marijuana for the past ten years. Olson therefore argues

that the Rock County conviction was relevant conduct which could not be used to

increase his criminal history score. Because the district court did not make specific

factual findings as to the underlying conduct giving rise to the prior conviction, we

vacated Olson’s sentence and remanded the case to the district court with

instructions to determine whether Olson possessed the drugs involved in the Rock

County conviction for his own personal use or with an intent to distribute. 

To guide the district court in its determination, we explained:

When looking to the underlying conduct . . . it is not readily

apparent how that conduct should be categorized. On the one

hand, Olson possessed a small amount of marijuana (two ounces),

suggesting that Olson held the drugs for his personal use. . . . On
No. 05-3201 3

the other hand, the subdivision of those two ounces of marijuana

in six smaller baggies might suggest that Olson did intend to

distribute the drugs . . . . 

Olson, 408 F.3d at 374.

On remand, the district court found that Olson had possessed the

marijuana for personal use, and, therefore, the Rock County conviction was

not relevant conduct for the purposes of calculating Olson’s criminal history

score. Accordingly, the district court again added one point to Olson’s

criminal history score for the Rock County conviction and resentenced Olson

to 87 months in prison. 

II. Analysis

Relevant conduct determinations are factual findings that we review

with great deference to the district court, reversing only in the case of clear

error. See United States v. Parra, 402 F.3d 752, 762-63 (7th Cir. 2005). 

Under the Guidelines, a defendant’s criminal history score may not

include any relevant conduct that is part of the offense of conviction. 

U.S.S.G. § 4A1.2, cmt. n.3. To constitute relevant conduct, a drug offense

must be part of the same course of conduct or common scheme or plan.

United States v. Wyss, 147 F.3d 631, 632 (7th Cir. 1998). Possession of illegal

drugs for personal consumption cannot be grouped with other offenses. Id.

Olson contends that the district court clearly erred in finding that the

conduct underlying his Rock County conviction was possession of marijuana

for personal use, and, instead, asserts that he possessed the marijuana with

an intent to distribute it. We disagree. 

First, Olson argues that “it defies common sense to assert that a twoounce quantity of marijuana, which has been subdivided into a one ounce

bag, two one-fourth ounce bags, and three one-sixth ounce bags, is being held

for personal use.” Brief of Defendant-Appellant at 11-12, United States v.

Olson, No. 05-3201 (7th Cir. Sept. 8, 2005). To the contrary, the district court

concluded that the total amount of marijuana (two ounces) was small, and

was “an amount likely to be possessed by a chronic marijuana user such as

the defendant for his own personal use.” In addition, the district court

dismissed the fact that the marijuana was divided into smaller bags because

it might have been sold to Olson pre-packaged this way.

Second, Olson asserts that he must have been possessing the

marijuana with the intent to distribute it because he “delivered” some of the

marijuana to the two front-seat occupants in the vehicle. However, this

argument undercuts Olson’s position because, according to the other

occupants, Olson was smoking the marijuana with them. As the district
No. 05-3201 4

court noted, because he was smoking marijuana with the occupants of the

car, chances are that Olson possessed the marijuana for the purpose of

smoking it and not for the purpose of distribution.

Third, Olson contends that a subsequent state drug conviction (“the

1996 conviction”) for possession of marijuana with intent to distribute was

identical in all relevant aspects to the Rock County conviction. The district

court concluded that the 1996 conviction constituted relevant conduct, and

because the two state cases were “identical in all relevant aspects,” Olson

argues that the district court should have concluded that the Rock County

conviction also constituted relevant conduct. The government, however,

points out at least one significant difference between the two cases: Olson

was arrested with approximately twice the amount of marijuana,

approximately four ounces, in the 1996 conviction. The district court was

within its discretion to find this distinction relevant.

Finally, Olson contends that he must have been intending to distribute

the marijuana found in the car because the police discovered a separate,

smaller plastic bag containing 2.3 grams of marijuana in Olson’s clothes after

transporting him to the police station. Olson argues that because this

smaller bag was for personal use, the marijuana in the car must have been

for distribution. Of course, it is also plausible that Olson had more than 2.3

grams of marijuana in his possession for his personal use. Indeed, the

evidence showed that Olson was a chronic marijuana user, and the district

court did not clearly err in finding that Olson possessed more than 2.3 grams

of marijuana for his own personal use.

To summarize, the district court found that Olson held the marijuana

in the car for his personal use. Although Olson has presented a plausible

alternative view of the evidence, the district court did not clearly err in

finding to the contrary. See United States v. Martin, 287 F.3d 609, 616 (7th

Cir. 2002) (“Under [the clear error] standard . . . we will reverse only if we

have a firm and definite conviction that a mistake has been made”); United

States v. Taylor, 72 F.3d 533, 546 (7th Cir. 1995) (“[I]f two permissible views

exist, the fact-finder’s choice between them cannot be clearly erroneous”).

 

III. Conclusion

For the foregoing reasons, the judgment of the district court is

AFFIRMED.