* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and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 C IR . R. 47.5.4.

1 United States Court of Appeals

Fifth Circuit



## FILED

September 20, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 04-41051

____________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FLAVIO RANGEL,

Defendant - Appellant.

Appeal from the United States District Court

For the Southern District of Texas

USDC No. 1:04-CR-68-ALL

Before DAVIS, JONES, and GARZA, Circuit Judges.

PER CURIAM: *

Flavio Rangel appeals his guilty-plea sentence for possession with intent to distribute

marijuana. Rangel argues that the district court clearly erred in finding that his possession of cocaine

was “relevant conduct” for purposes of U.S.S.G. § 1B1.3, and in considering the amount of cocaine1 Rangel also raised a Blakely v. Washington , 542 U.S. 296 (2004) claim in his appeal, but voluntarily

dismissed it after the Supreme Court’s decision in United States v. Booker

, 125 S.Ct. 738 (2005). Presumably, Rangel

dropped his Booker

claim because the district court judge, while sentencing him to 37 months imprisonment, stated

that if the federal sentencing guidelines were foun d unconstitutional, he would order a sentence of four y ears

imprisonment.

2 in calculating his base offense level under U.S.S.G. § 2D1.1. 1

I

Rangel was indicted for possession with intent to distribute approximately 31 6.2 grams of

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and po ssession with intent to

distribute approximately 771 grams o f marijuana in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(D). He pleaded guilty to the marijuana charge and the Government dismissed the cocaine

charge.

The presentence report (“PSR”) summarized the offense conduct. A confidential informant

(“CI”) met with Rangel at the Candlewick Apartments in Brownsville, TX, where Rangel showed the

CI a kilogram of cocaine. The CI then traveled with Rangel to an apartment on Johnson Street in

Brownsville, where Rangel showed the CI 300 pounds of marijuana. Based on information received

from the CI, agents observed Rangel the next day leaving the Johnson Street apartment in a Dodge

Intrepid, and later that same day observed the car parked outside the Candlewick Apartments. The

CI failed to meet with agents as scheduled the following day. The agents, therefore, decided to obtain

consent to search both the Candlewick Apartment and the Johnson Street apartment. Upon arrival

at the Candlewick Apartments, agents received consent from Maria Isabel Najera, Rangel’s girlfriend,

to search the Dodge Intrepid )) which she owned but Rangel had repaired. The agents discovered

316.2 grams of cocaine in the trunk of the car. Later, agents made contact with Rangel, who gave

them consent to search his residence on Johnson Street and his Oldsmobile. Agents found 771 grams

of marijuana in the apartment and two small baggies of cocaine in the Oldsmobile. Rangel admitted2 During his rearraignment, Rangel only admitted to ownership of the marijuana.

3 Under the drug equivalency table, Guidelines § 2D1.1, cmt. n. 10, 316.2 grams of cocaine is the equivalent

of approximately sixty-four kilograms of marijuana.

3 to the agents that the marijuana and cocaine were his, including the cocaine found in the Dodge. 2

The PSR concluded that the cocaine should be considered relevant conduct under § 1B1.3

of the Guidelines. Therefore, both the amount of marijuana and cocaine were used to determine

Rangel’s base offense level under Guidelines § 2D1.1. 3 Rangel objected, and argued that his conduct

did not constitute “relevant conduct” under the Guidelines. The Government offered three exhibits

in support of their assertion that the cocaine constituted relevant conduct: (1) a report addressing

the seizure of the drugs; (2) the arrest report; and (3) a report concerning the interview with the CI.

The district court, over Rangel’s objection, adopted the findings and Guidelines application of the

PSR and sentenced Rangel to 37 months imprisonment, three years supervised release, and a $100

special assessment fee.

II

On appeal, Rangel only argues that the district court clearly erred in enhancing his sentence

based on its consideration of the amount of cocaine seized as relevant conduct under Guidelines §

1B1.3, because his possession of marijuana and cocaine was not part of a “common scheme or plan”

or the “same course of conduct.” Section 1B1.3(a)(2) authorizes the inclusio n o f additional drug

quantities when the amount seized does not reflect the scale of the offense

. T he commentary to the

Guidelines state that “in a drug distribution case, quantities and types of drugs not specified in the

count of conviction are to be included in determining the offense level if 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 ENTENCING G U IDELINES M ANUAL § 1B1.3, cmt. n.10. “Common scheme or plan” is defined as4

involving two or more offenses that are “substantially connected to each other by at least o ne

common factor, such as common victims, common accomplices, common purpose, or similar modus

operandi.” I

d.

, cmt. n.9(A). “Offenses that do not qualify as part of a common scheme or plan may

nonetheless qualify as part of 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, spree, or ongoing

series of offenses.” I

d

., cmt. n.9(B). Factors to consider in a “same course of conduct”

determination include “the degree of similarit y of the offens es, the regularity (repetitions) of the

offenses, and the tim

e int erval between the offenses.” I d

. When one of the factors is absent, a

stronger showing of at least one other factor is required. Id

.

We review a district court’s determination of what constitutes relevant conduct for clear error.

United States v. Villanueva

, 408 F.3d 193, 203 n. 9 (5th Cir. 2005). “A factual finding is not clearly

erroneous if it is plausible in light of the record read as a whole.” Id . at 203.

Rangel contends that the district court judge excluded all of the statements made by the CI

as hearsay in determining that his possession of cocaine was “relevant conduct.” Therefore, Rangel

asserts, the only evidence the court considered was that he admitted that both the marijuana and the

cocaine belonged to him and that they were seized on the same day. Rangel argues that the offenses

involved different drugs in different quantities; the drugs were found in different parts of town; and

there was no evidence showing how Rangel obtained the drugs, how long he had the drugs, how the

cocaine got into the car, where the drugs came from, where they were going, or whether he had any

accomplices.

We do not find that the district court intended to exclude all of the statements made by the

CI, but merely those relating to the quantity of drugs the CI claims that Rangel showed him. See

United States v. Slaughter

, 238 F.3d 580, 585 (5th Cir. 2000) (“For sentencing purposes, the district5

court may consider any relevant evidence, including uncorroborated hearsay statements, i f the

information has a ‘sufficient indicia of reliabilit y to support its probable accuracy.’”). Although the

district court judge stated that he was not relying on the hearsay statements of the CI, placing this

statement in the context of the sentencing hearing as a whole, we believe that the district court judge

excluded only statements from the CI concerning the quantity of drugs that Rangel possessed.

The district court’s conclusion that Rangel’s possession of cocaine and marijuana were part

of a “common scheme or plan” was not clearly erroneous. Rangel admitted that both the marijuana

and cocaine were his. The district court could infer, based on the large quantity, that the drugs were

not for Rangel’s personal use, but that he int ended t o distribute the marijuana and cocaine. S ee

United States v. Hunt

, 129 F.3d 739, 742 (5th Cir. 1997) (intent to distribute may be inferred from

the possession of an amount of controlled substance too large to be used by the poss essor al one).

Indeed, the district court concluded from the evidence that it was clear Rangel was involved in the

common purpose of

illegal drug possession and drug trafficking. B ut cf. United States v. Miller

, 179

F.3d 961, 966 n. 8 (5th Cir. 1999) (no “c o mmo n scheme or plan” simply because two transaction

involve amounts of drugs larger than for personal use when other indicia do not in any way support

such a conclusion); United States v. Wall

, 180 F.3d 641, 645 (5th Cir. 1999) (“Although the offenses

arguably shared the common general purpose of importing marijuana for distribution in the United

States

. . . the offenses did not share similar accomplices” or a similar modus operandi .). After

revi ewing t he entirety of the record, we are not “left with the definite and firm conviction that a

mistake has been committed.” United States v. Gypsum Co. , 333 U.S. 364, 395 (1948).

M o reover, it was not clearly erroneous for the district court to conclude the possession of

cocaine and marijuana were “sufficient ly connected or r elated to each other as to warrant the

conclusion that they are part of a single epi sode, spree, or ongoing series of offenses.” U.S.6

S ENTENCING G UIDELINES M ANUAL § 1B1.3, cmt. n.9(B). The commentary to Guidelines § 1B1.3

provides three factors in determining whether there is a sufficient connection to enhance a sentence

based on “relevant conduct” because o f “same co urse of conduct”: (1) the degree of similarity

between the offenses; (2) the regularity or repetition of the offenses; and (3) the temporal proximity

between the offenses. U.S. S ENTENCING G UIDELINES M ANUAL § 1B1.3 cmt. n.9(B). There is a very

strong showing of temporal proximity since the cocaine was seized on the same day as the marijuana.

As discussed supra

, the district court could infer that Rangel intended to distribute the drugs. This

conclusion is supported by the CI’s statements to government agents. Therefore, the district court

could conclude from the evidence that Rangel was regularly involved in illegal drug possession and

drug trafficking. To determine whether the offenses are similar, we consider whether drug offenses

share a common source, supplier, accomplice, destination, or m odus operandi

. W all

, 180 F.3d at

646; U nited States v. Booker

, 334 F.3d 406, 415 (5th Cir. 2003) ; United States v. Ocana

, 204 F.3d

585, 590 (5th Cir. 2000). The district court could infer from the statements provided by the CI that

Rangel intended to eit her supply the CI with cocaine and marijuana or intended the CI to be an

accomplice in the distribution of the drugs. Reading the record as a whole, we find the district court’s

finding that Rangel’s possession of marijuana and cocaine were part of the “same course of conduct”

was not clearly erroneous.

For the foregoing reasons, we AFFIRM Rangel’s sentence.