### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 20523 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
ROBERT COLEMAN , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18

- CR

- 689

- 1

Before BARKSDALE, GRAVES, and OLDHAM, Circuit Judges. PER CURIAM: * Pursuant to a plea agreement, Robert Coleman pleaded guilty to : manufacturing and possessing , with intent to distribute , cocaine base , in violation of 21 U.S.C. § 841(a)(1) (Count 1) ; and discharging a firearm during and in relation to a drug

- trafficking offense , in violation of 18 U.S.C. § 92 4(c)(1)(A)(iii) (Count 2). The district court sentenced him to , inter alia , imprisonment of 70 months for Count 1 and the § 924 mandatory consecutive

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 27, 2020 Lyle W. Cayce Clerk Case: 19-20523 Document: 00515503346 Page: 1 Date Filed: 07/27/2020No. 19

- 20523

2 minimum 120 months for Count 2

. H e contend s the court erred in determin ing his advisory Sentencing G uidelines sentencing range for Count 1 because , applying Guideline § 1B1.3 (relevant conduct), it included in his relevant conduct 28 grams of cocaine base he sold to a cooperating source in May 2018 , rather than considering only the drugs involved in his November 2018 offens e of conviction. Although post

- Booker , the Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States , 552 U.S. 38, 46, 51 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse

of

- discretion standard. Id . at 51; United States v. Delgado

- Martinez , 564 F.3d 750, 751

– 53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo ; its factual findings, only for clear error. E.g. , United States v. Cisneros

- Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). “A finding by the district court that unadjudicated conduct is part of the same course of conduct or common scheme or plan [and, as discussed infra , therefore satisfies Guideline § 1B1.3] is a factual determination

. . . .” United States v. Rhine , 583 F.3d 878, 884

– 85 (citation s omitted). Factual findings are clearly erroneous only if they are not “plausible in [the] light of the record as a whole” and , therefore, “ leave [ ] us with the definite and firm conviction tha t a mistake has been committed”. United States v. Nava , 957 F.3d 581, 586 (5th Cir. 2020) (internal quotation marks and citation s omitted). There was no clear error. “[I]n a drug distribution case, quantities and types of drugs not specified in the cou nt of conviction are to be included in determining the offense level if Case: 19-20523 Document: 00515503346 Page: 2 Date Filed: 07/27/2020No. 19

- 20523

3 they were part of the same course of conduct or part of a common scheme or plan as the count of conviction”

. U.S.S.G. § 1B1.3, cmt. background ; see also Rhine , 583 F.3d at 885. I n such cases, our court ha s “broadly defined what constitutes the same course of conduct or common scheme or plan ”

. Rhine , 583 F.3d at 885 (internal quotation marks and citation omitted)

. Offenses qualify as the same course of conduct under Guideline § 1 B1.3 if they “pass the test of similarity, regularity [,] and temporal proximity”

. United States v. Bethley , 973 F.2d 396, 401 (5th Cir. 1992) (citation omitted). “A weak showing as to any one of these factors will not preclude a finding of relevant condu ct; rather, when

one
. . . is absent, a stronger presence of at least one of the other factors is required”. Rhine , 583 F.3d at 886 ( alteration, internal quotation marks , and citation omitted). Contrary to Coleman’s contention s , the court’s finding the Ma y 2018 sale satisfied Guideline § 1B1.3 was plausible in the light of the record. T he six

month interval at issue easily satisfies our court’s one
- year “benchmark for determining temporal proximity”

. Id. a t 887 (citation omitted)

. Coleman’s offenses are also similar because they involved hi s possessing cocaine base to sell in the area around his home. His conduct, moreover, meets the threshold for regularity ; o n multiple occasions between the two incidents, police surveilling him heard

— on in tercepts

— him selling drugs, including cocaine base, and a witness told police that Coleman manufactured and sold cocaine base from his residence. See id. at 890 (citation omitted)

. AFFIRMED

. Case: 19-20523 Document: 00515503346 Page: 3 Date Filed: 07/27/2020