* 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opinion should not be published and is not precedent except under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. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-20490

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARIA EVA ABARCA,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(H-98-CR-206-2)

July 26, 2000

Before GARWOOD, DeMOSS and PARKER, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Maria Eva Abarca appeals her sentence,

following the district court’s assessment of three criminal history

points for a state conviction that she contends should have been2

characterized as relevant conduct of her federal drug conspiracy

offense rather than a prior sentence justifying additional criminal

history points. Because the district court did not err in its

determination, we affirm.

I.

On June 10, 1998, Abarca and several others were charged in a

two count indictment with (1) conspiracy to possess with intent to

distribute over 1,000 kilograms of marijuana in vi olation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A) & 846 and (2) conspiracy to launder

monetary instruments in violation of 18 U.S.C. § 1956(h). The

indictment stated that the conspiracy to possess with intent to

distribute occurred from November 1994 to September 1997. Abarca

pleaded guilty to both charges on December 2, 1998.

Thereafter, a pre-sentence investigation report (“PSR”) was

prepared and filed with the district court. Abarca filed several

objections to the recommendations in the report. Germane to the

instant appeal was an objection to paragraph 59 of the PSR, which

suggested that three criminal history p oints be assessed for

Abarca’s state conviction for delivery of a controlled substance.

See U.S. Sentencing Guideline s Manual § 4A1.1(a). That state

conviction concerned a cocaine sale on August 22, 1997, to which

she pleaded guilty and was sentenced for five years on October 15,1 Thus, at the time of her federal sentencing, Abarca was

incarcerated in state prison.

3 1997. 1 A second addendum to the PSR was filed, but it maintained

the prior recommendation to assess the three criminal history

points.

On May 19, 1999, after hearing argument from both Abarca and

the government, the district court overruled Abarca’s objection to

the three crimina l history point assessment and sentenced her to

two 210 month sentences, to run concurrently with each other and

with the state conviction. Furthermore, Abarca was ordered to be

placed on supervised release for a ter m of five years and fined

$3,000 in addition to a special assessment of $100 per each count.

This appeal ensued.

II.

We review de novo a district court’s interpretation of the

U nited States Sentencing Guidelines (“Guidelines”). S ee Un ited

States v. Reliford

, 210 F.3d 285, 306 (5th Cir. 2000). But a

district court’s factual finding s and its determination of what

constitutes relevant conduct for purposes of sente ncing are

reviewed for clear error. S ee United States v. Wall

, 180 F.3d 641,

644 (5th Cir. 1999).

Under § 4A1.1(a) of the Guidelines, three points are assessed

for each prior sentence of imprisonment exceeding one year and one4

month. “The term ‘prior sentence’ means any sentence previously

imposed upon adjudication of guilt, whether by guilty plea, trial,

or plea of nolo contendere

, for conduct not part of the instant

offense.” U.S. Sentencing Guidelines Manual § 4A1.2(a)(1) (1998).

A sentence imposed after the defendant’s co mmencement of the

instant offense, but prior to sentencing on the instant offense, is

still a prior s entence if it was for conduct other than conduct

that was part of the instant offense. S ee id. application note 1.

“Conduct that is part of the instant offense means conduct that is

relevant conduct to the in stant offense under the provisions of

§ 1B1.3 (Relevant Conduct).” S ee id. Section 1B1.3 of the

Guidelines defines “relevant conduct” in pertinent part as:

(A) all acts and omissions committed, aided,

abetted, counseled, comman ded, induced, procured,

or willfully caused by the defendant; and

(B) in the case of a j ointly undertaken criminal

activity . . . all reasonably foreseeable acts and

omissions of others in furtherance of the jointly

undertaken criminal activity, that occurred during

the commissio n of the offense of conviction, in

prepa ration for that offense, or in the course of

attempting to avoid detection or responsibility for

that offense . . . .

Here, Abarca concedes that the sentence of her state

conviction exceeds one year and one month, but she maintains that

her prior state conviction concerned conduct that is part of her

instant federal drug conspiracy offense and, therefore, should have

been included as part of the relevant conduct of that offense

rather than as a prior sentence. For support, she notes that her2 The amount sold in the cocaine sales other than the August 22,

1997 state offense was at least four kilograms. The marijuana

equivalency would h ave been 800 kilograms. S ee United States

Sentencing Guidelines Manual § 2D1.1 application note 10.

5 state offense for delivery of cocaine occurred on August 22, 1997,

within the time frame of the existence of the drug conspiracy as

alleged in the indictment. Moreover, because the PSR included as

relevant conduct information about other prior cocaine sales during

the existence of the drug conspiracy, she maintains that excluding

the state conviction as relevant conduct was unreasonable,

arbitrary, and illogical.

We find Abarca’s arguments to be without merit. Although the

PSR included statements about cocaine sales other than the August

22, 1997 state offense as relevant conduct and suggested that the

amount 2 sold in those sales be converted to a marijuana equivalency

and added to the total marijuana distributed, the district court

specifically declined to consider the cocaine or to add its

marijuana equivalency to the amount of marijuana distributed. The

district court clearly indicated that it viewed the drug conspiracy

charge as a marijuana conspiracy. The indictment charged Abarca

and her co-conspirators as having conducted a marijuana, not

c ocaine, conspiracy. The limited nature of the conspiracy is

further evidenced by the trial of one of Abarca’s co-conspirators,

which delved solely into the distribution of marijuana. Indeed,

the district court revealed that if it had focused on the cocaine

sales, then it would have sentenced Abarca to a longer term rather6

than to the low end of the guideline range.

Even if the prior cocaine sales did matter and were considered

to be relevant conduct, that does not also require the August 22,

1997 state offense to be viewed as relevant conduct. Although

Abarca contends that treating the prior cocaine sales differently

from the August sale is unreasonable and arbitrary in light of the

time frame recited in the indictment, the critical inquiry as to

whether certain conduct is not part of the instant offense and,

thus, is not relevant conduct is whet her the prior conduct

constitutes a severable, distinct offense from the instant offense

of conviction. S ee United States v. T homas , 973 F.2d 1152, 1158

(5th Cir. 1992). To make this factual determination, a district

court may consider several factors, including temporal and

geographical proximity, common victims, and a common criminal plan

or intent. See United States v. Blumberg , 961 F.2d 787, 792 (8th

Cir. 1992) (citing United States v. Beddow

, 957 F.2d 1330, 1338

(6th Cir. 1992)). Although the drug conspiracy charge and the

August 22, 1997 state offense overlap in some of the factors,

particularly the identity of the victim, i.e., society, it is clear

that delivery of cocaine is a distinct and severable offense from

conspiracy to possess with intent to distribute marijuana. The two

offenses have materially different elements. In addition,

notwithstanding the time frame alleged in the indictment, the

actual conduct underlying the entire marijuana cons p iracy, as7

stated in the PSR, ended by March 1997, several months before the

August 22, 1997 offense.

Admittedly, perceiving the prior cocain e sales as relevant

conduct while not doing so as to the August 22, 1997 state offense

may seem at first to be unreasonable and arbitrary. But the prior

cocaine sales noted by the PSR as relevant conduct terminated by

March 1997, the same time the conduct underlying the marijuana

conspiracy actually ended. On the other hand, Abarca’s state

arrest for delivery of cocaine did not occur until five months

later. Thus, temporal proximity to the underlying conduct

supporting the marijuana conspiracy just does not exist as to the

August 22, 1997 state offense as it appears to exist with respect

to the prior cocaine sales. Unless the prior cocaine sales and the

August 22, 1997 state offense were part of a cocaine conspiracy

count, which the indict ment clearly did not charge, the time

difference alone between the prior cocaine sales and the August 22,

1997 state offense suggests that they are distinguishable from each

other and need not be b oth grouped as relevant conduct for the

marij uana conspiracy. Accordingly, the district court did not

clearly err when it assessed three criminal history points for

Abarca’s August 22, 1997 state offense.

III.

For the foregoing reasons, the sentence of the district court8

is AFFIRMED.