United States v. Dyer

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 99-30740 ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD A. DYER, also known as Blabber,

Defendant-Appellant.

__________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (98-CR-57) __________________________________________________________________ June 12, 2000

Before JONES and BENAVIDES, Circuit Judges, and WALTER*, District Judge.

PER CURIAM:**

Appellant Dyer convicted of heroin trafficking,

challenges the district court’s assessment of a substantial

increase in his base offense level for sentencing purposes grounded

in Dyer’s participation in two uncharged murders. Dyer asserts

that the government failed to prove he participated in the murders

and failed to show they were “relevant conduct” for sentencing.

* District Judge of the Western District of Louisiana, sitting by designation. ** Pursuant to 5th Cir. R. 47 .5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.A. See U.S.S.G. § 1B1.3. We disagree with the first contention but

agree with the second and must therefore reverse and remand.

As to the first contention, it was not clearly erroneous

for the district court to find that Dyer participated in, and did

not simply have knowledge of, the murders of Kanes and Fernandez.

The finding is supported inter alia by a reasonable interpretation

of Dyer’s secretly tape-recorded statements, interviews with Dyer’s

cellmate, and ballistics tests of Dyer’s gun.

With regard to the second contention, however, there is

insufficient evidence to find the murders were relevant conduct

within the guidelines, i.e., part of the same course of conduct,

common scheme or plan as the offense of conviction. United States

v. Vital, 68, F.3d 114, 118 (5th Cir. 1995). “Offenses qualify as

part of the same course of conduct if they are ‘sufficiently

connected or related to each other to warrant a conclusion that

they are part of a single episode, spree, or ongoing series of

offenses.’” United States v. Ocana, 204 F.3d 585, 589-90 (5th Cir.

2000) (quoting § 1B1.3 Application Note 9(b)). The appropriate

factors to weigh to determine whether the offenses are sufficiently

connected or related include “the degree of similarity of the

offenses, the regularity of the offenses, and the time interval

between the offenses.’” Id. at 590. “When one of the factors is

absent, a stronger presence of at least one of the other factors is

required.” Id.

2 A careful review of the PSR and sentencing hearing

persuades us that the only above-referenced factor present in this

case is temporal proximity of the murders to Dyer’s heroin offense.

The government charges Dyer with repetitive conduct involving drugs

and violence. But the record does not connect these murders to

Dyer’s drug trafficking or to the robberies and murders of drug-

dealing associates that Dyer contemplated. Lacking any other

evidence than temporal proximity to demonstrate that these murders

were part of the same course of conduct, common scheme or plan as

the offense of conviction, we must vacate this relevant conduct

enhancement. In so ordering, we need not and do not rule on the

applicability of an upward departure, which may be urged at re-

sentencing.

For these reasons, the sentence is VACATED and the case

REMANDED for re-sentencing consistent herewith.

VACATED and REMANDED.