United States v. Gomez

Opinion

No. 99-20599 1–

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20599 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDDIE GOMEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-98-CR-126-7 -------------------- April 13, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Eddie Gomez argues that the district court clearly erred in

including the 1996 cocaine transactions as relevant conduct to

the offense of conviction. The inclusion of the 1996

transactions increased the quantity of drugs for which Gomez was

held responsible. Gomez argues that the 1996 cocaine

transactions were not part of the conspiracy for which he was

convicted and were not part of the same common scheme or plan as

the conspiracy.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 47.5.4. No. 99-20599 2–

The district court’s determination on the quantity of drugs

for sentencing purposes is a factual finding that this court

reviews for clear error. United States v. Torres, 114 F.3d 520,

527 (5th Cir. 1997). To determine whether prior conduct

qualifies as relevant conduct under § 1B1.3(a)(2), we consider

the similarity, regularity, and temporal proximity of the

conduct. United States v. Bethley, 973 F.2d 396, 401 (5th Cir.

1992) (relevant conduct apply to drug distributions occurring

continuously during the six months before the charged conduct).

There is no dispute as to the facts of this case. The

cocaine trafficking engaged in during 1996 was outside of the

time period which the indictment specified for the conspiracy.

The 1996 transactions took place less than one year before the

dates of the conspiracy. The 1996 transactions involved the same

people involved in the charged conspiracy. Gomez argues that the

1996 transactions were not part of the conspiracy because the

drugs moved in 1996 did not come from the same source or go to

the same destination as the drugs in the charged conspiracy.

This argument would be persuasive if the charged conspiracy

involved regular shipments of drugs from a single source to a

single destination; however, the charged conspiracy was not a

structured operation. Rather, it consisted of stealing, buying,

and selling marijuana and cocaine in an opportunistic manner.

The district court was not clearly wrong in finding that the 1996

transactions were part of the relevant conduct of the conspiracy.

AFFIRMED.