     Case: 13-40033       Document: 00512436651         Page: 1     Date Filed: 11/11/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 11, 2013

                                       No. 13-40033                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,
v.

DOLPH FINLEY,

                                                  Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-181-1


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       A jury convicted Defendant-Appellant Dolph Finley of conspiracy to
possess with intent to distribute less than 50 kilograms of marijuana in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846, and possession with intent to
distribute less than 50 kilograms of marijuana in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2. The district court sentenced Finley to
thirty-eight months of imprisonment to be followed by three years of supervised
release. Finley appeals his conviction, arguing that the district court erred in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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denying his motion to suppress and in overruling his jury selection challenge.
Finley also appeals his sentence on the basis that the district court erred in
finding both that he committed a prior drug trafficking offense and that the
offense is relevant conduct under U.S. SENTENCING GUIDELINES MANUAL
(“U.S.S.G.”) § 1B1.3(a)(2) (2012). We AFFIRM.
                      I. Factual and Procedural History
      In February 2012, Finley and codefendant Thomas Lubecke left Baton
Rouge, Louisiana, in a rental car and drove to Brownsville, Texas. The purpose
of their trip was to purchase marijuana for resale from contacts Finley had
previously established in Brownsville. On the return, Finley boarded a bus,
concealing the contraband in an All-Star gym bag, while Lubecke followed
behind in the rental car.
      After the bus passed through a border checkpoint, a drug dog alerted to
Lubecke’s rental car. The subsequent search of the car revealed personal-use
amounts of drugs, some of the materials used to conceal the marijuana, and a
black All Star duffle bag identical to the one used to transport the marijuana.
Because a Border Patrol agent recalled seeing the other black All Star duffle bag
in the luggage area of the passenger bus, Border Patrol agents stopped the bus
a second time. This time, a drug dog alerted to the bag, and a search revealed
the marijuana. The agents also discovered Finley trying to dispose of the
luggage receipt corresponding to the bag in the bathroom of the bus. Given
Finley’s inculpatory actions and the discovery of the drugs, the agents arrested
Finley.
      After his arrest, Border Patrol agents read Finley his Miranda rights, and
Finley invoked his right to counsel.       Later that day, Drug Enforcement
Administration (“DEA”) agents arrived to interview Finley. One of the agents,
Agent Cervantes, recognized Finley from an earlier drug trafficking arrest at the
Sarita Border Patrol checkpoint. After Finley was removed from his holding cell

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and taken to an office for an interview, Agent Cervantes made eye contact with
Finley and asked him, “do you remember me?” Finley answered affirmatively,
and the two began a conversation during which Finley denied involvement in the
events under investigation. At trial, Finley moved to suppress the statements
made during this conversation. The district court denied the motion, and the
prosecutor introduced the conversation as evidence of Finley’s guilt.
       A jury ultimately convicted Finley of the charged offenses, and Finley’s
case proceeded to sentencing. The Presentence Investigation Report (“PSR”)
included in the Guidelines calculation marijuana and ecstasy discovered during
an unadjudicated March 2011 arrest of Finley. Finley objected to the inclusion
of these drugs in the Guidelines calculation, but the district court overruled the
objection, finding that Finley committed the March 2011 offense and that it
qualified as relevant conduct under § 1B1.3(a)(2) of the Guidelines.
                      II. Motion to Suppress Statements
      Finley argues on appeal that the statements of denial that he made on the
day of his arrest should have been excluded under Edwards v. Arizona, 451 U.S.
477 (1981), which prohibits continued interrogation after invocation of the right
to counsel “unless the accused himself initiates further communication,
exchanges, or conversations with the police.” Id. at 484–85. Following a
hearing, the district court found that the agents did not violate Edwards because
Finley “initiated the communication about the offense or investigation . . . before
he was asked any questions about the investigation.”           The district court
therefore denied Finley’s motion to suppress.
      We review de novo the legal conclusions underlying a district court’s denial
of a motion to suppress and review for clear error a district court’s factual
findings. United States v. Gonzalez-Garcia, 708 F.3d 682, 685 (5th Cir. 2013).
Any error is subject to harmless error review. United States v. Green, 272 F.3d
748, 756 (5th Cir. 2001). An error is harmless only if we can determine beyond

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a reasonable doubt that the improper testimony did not contribute to the jury’s
verdict. Id.
      We need not decide whether the district court erred in admitting Finley’s
statements, because the error was harmless. Even without the challenged
statements, there was overwhelming evidence of Finley’s guilt presented at trial.
The jury listened to extensive testimony by Lubecke that he and Finley planned
and carried out the purchase and transport of marijuana from Brownsville using
a rental car, a passenger bus, a black All Star duffle bag, and marijuana
packaging materials (black plastic sheeting, coffee, dryer sheets, and axle
grease). The jury reviewed video, photographic, and documentary evidence
which indicated that Finley and Lubecke purchased the marijuana packaging
materials and two black All Star duffle bags from Brownsville stores. There was
also documentary evidence that Finley and Lubecke purchased bus tickets
together.   The jury heard testimony from a Brownsville Metro employee
regarding surveillance video footage of Finley and Lubecke purchasing bus
tickets together, Finley placing a black All Star duffle bag in the luggage
compartment of the bus, and Finley boarding the bus, as well as testimony from
Border Patrol agents about Finley’s inculpatory conduct at the time of the stop.
The jury also reviewed cellular telephone records showing Finley and Lubecke
in contact by telephone and text message while Finley was traveling on the bus,
including a text message asking Finley what highway the bus was traveling on.
      The overwhelming nature of the evidence leaves no doubt as to Finley’s
guilt. See United States v. Vejar-Urias, 165 F.3d 337, 340 (5th Cir. 1999)
(“[E]rror may be considered harmless when, disregarding the [challenged
evidence], there is otherwise ample evidence against a defendant.” (citation and
internal quotation marks omitted)). In comparison, Finley’s statements of denial
to the DEA agents were insignificant: their falsity and inculpatory nature is
realized only if the jurors first believe the other evidence of Finley’s guilt. See

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United States v. Basey, 816 F.2d 980, 1005 (5th Cir. 1987) (“[E]rror may be
harmless if the [improper] statement’s impact is insignificant in light of the
weight of other evidence against the defendant.” (citing Schneble v. Florida, 405
U.S. 427, 430 (1972))). The “verdict rendered was surely unattributable to the”
statements. Green, 272 F.3d at 756.1 Therefore, any potential error in admitting
Finley’s statements was harmless.
                                 III. Batson Challenge
       Finley challenges as racially based the peremptory strike of a juror in his
case. “The Due Process clause of the Fifth Amendment prohibits the use of
peremptory strikes on the basis of race.” United States v. Davis, 393 F.3d 540,
544 (5th Cir. 2004) (citing, inter alia, Batson v. Kentucky, 476 U.S. 79, 84 (1986)).
We review a district court’s Batson ruling for clear error. United States v.
Kennedy, 707 F.3d 558, 568 (5th Cir.), cert. denied, 133 S. Ct. 2785 (2013).
       During voir dire, the prosecutor asked prospective jurors who had raised
their numbered cards in support of legalization of marijuana for medicinal
purposes to “leave your card up if you think it should just be legalized period.”
At this point, potential Jurors 5 and 18 were the only potential jurors to leave
their cards raised. The prosecutor then engaged in follow-up questioning of
Jurors 5 and 18 on this topic, during which both expressed their belief that
marijuana was less “severe,” “harmful,” or “evil” than other drugs.                     The
prosecutor used peremptory strikes on both Jurors 5 and 18.
       At the conclusion of jury selection, Finley raised a Batson challenge to the
prosecutor’s use of a peremptory strike against potential Juror 5—the only
African-American on the venire. The district court denied the challenge.

       1
         Finley’s comparison to Green is misplaced. Unlike in Green, where the challenged
statements were “the only direct evidence of [the defendant’s] knowledge of and access to the
firearms charged in the indictment,” 272 F.3d at 757, Finley’s statements were not necessary
to prove any element of the offenses.

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      Although Finley argues that the prosecutor engaged in disparate
questioning of Juror 5 in a manner that would tend to prompt responses that
would justify striking Juror 5 and that the prosecutor’s proffered reason for
striking Juror 5 was a pretext for racial discrimination, the record supports
neither of these arguments.          In short, Finley failed to meet his burden of
demonstrating purposeful discrimination. We perceive no error in the district
court’s ruling.
                   IV. Finley’s Prior Arrest as Relevant Conduct
      The district court increased Finley’s sentence based on evidence that he
had previously possessed drugs in March of 2011.2 Finley appeals the district
court’s sentencing calculation on two grounds: (1) there was an insufficient
evidentiary basis to conclude that he committed the March 2011 offense, and (2)
the March 2011 offense was not relevant conduct under § 1B1.3(a)(2) of the
Guidelines because it was not part of the same course of conduct or common
scheme or plan as the instant offense of conviction.                A district court’s
determination that unadjudicated conduct is relevant conduct under the
Guidelines is a factual finding that we review for clear error. United States v.
Rhine, 583 F.3d 878, 884–85 (5th Cir. 2009).
A. Applicable Legal Standards
      In calculating the amount of drugs involved in an offense, a district court
may consider uncharged conduct so long as it constitutes “relevant conduct”
under the Guidelines. See U.S.S.G. §§ 1B1.3(a)(2), 3D1.2(d). Relevant conduct
includes “all acts and omissions . . . that were part of the same course of conduct
or common scheme or plan as the offense of conviction.”                  § 1B1.3(a)(2).
“‘Common scheme or plan’ and ‘same course of conduct’ are two closely-related


      2
          The case stemming from Finley’s March 2011 arrest was dismissed.

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concepts.” § 1B1.3(a)(2) cmt. n.9. “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.” § 1B1.3 cmt. n.9(B); see also Williams, 610 F.3d at 293.
B. Finding that Finley Committed the March 2011 Offense
      At Finley’s sentencing hearing, the evidence before the district court
included the testimony of Agent Cervantes, the DEA agent assigned to the
investigation of Finley’s March 2011 and the PSR, which included similar
information about the March 2011 arrest. Additionally, the PSR included
statements made by Lubecke that in late 2011, Finley informed him that he had
previously made multiple trips to South Texas to buy marijuana to sell in
Louisiana and that he had contacts in Brownsville from whom they could
purchase drugs.
      Furthermore, the district court had before it the evidence adduced at trial
to prove the February 2012 offenses that Finley was convicted of. This included
evidence that in February 2012, Finley made a trip with Lubecke in a rental car
from Baton Rouge, Louisiana, to Brownsville, Texas, during which they
purchased marijuana and tried to transport it back north through the Sarita
Border Patrol checkpoint in order to sell it. The same type of trip was involved
in the March 2011 offense.
      Based on the foregoing evidence, the district court specifically found that
Finley committed the March 2011 offense. Consequently, Finley’s argument
that the district court erred by reaching its conclusion based on the “mere fact
of arrest alone” is unavailing. The evidence considered by the district court went
well beyond the mere fact of Finley’s arrest. See United States v. Harris, 702
F.3d 226, 230 n.1 (5th Cir. 2012) (“Because [the] PSR included the factual

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underpinnings for the prior unadjudicated arrests—not merely the fact that [the
defendant] had been arrested, but not convicted, for an offense—this case does
not involve improper reliance on the mere fact of prior arrests.”), cert. denied,
133 S. Ct. 1845 (2013); United States v. Jones, 444 F.3d 430, 434 (5th Cir. 2006)
(noting that while an arrest alone may not be considered, a court may consider
a prior offense after making a finding, supported by evidence, that the defendant
committed the offense).
       Finley argues that because the drugs were in a “hidden compartment”
there was insufficient evidence to support the “knowledge” element of the prior
offense. See United States v. Mendoza, 522 F.3d 482, 489 (5th Cir. 2008). In
Mendoza, which involved a conviction based upon a “beyond a reasonable doubt”
burden of proof, we explained that, in a hidden compartment situation, we
traditionally require other circumstantial evidence “that is suspicious in nature
or demonstrates guilty knowledge.” Id. (citation and internal quotation marks
omitted). We need not resolve the open question of whether Mendoza applies
equally to a sentencing proceeding where the burden of proof is preponderance
of the evidence because the evidence underlying the district court’s finding is
sufficient even under Mendoza.              We conclude that there was sufficient
circumstantial evidence beyond the drugs found in the hidden compartment such
that the district court did not clearly err in finding that Finley committed the
March 2011 offense.
C. Relevant Conduct Due to Same Course of Conduct3



       3
         Relevant conduct is defined as including acts that are either “part of the same course
of conduct” as the offense of conviction or part of a “common scheme or plan” as the offense of
conviction. § 1B1.3(a)(2). The district court did not specify through which avenue it reached
its relevant conduct finding. Because we determine it is plausible to find the two incidents in
question were part of the same course of conduct, we do not address whether they might also
be considered part of a common scheme or plan.

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      Offenses may “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.”
§ 1B1.3 cmt. n.9(B). Factors bearing on this determination include “the degree
of similarity of the offenses, the regularity (repetitions) of the offenses, and the
time interval between the offenses.” Id. Here, all three factors weigh in favor
of the district court’s finding that the March 2011 offense is part of the same
course of conduct as the offense of conviction.
      “To determine whether a defendant’s earlier conduct is sufficiently similar
to the offense of conviction, we inquire whether ‘there are distinctive similarities
between the offense of conviction and the remote conduct that signal that they
are part of a course of conduct rather than isolated, unrelated events that
happen only to be similar in kind.’” Rhine, 583 F.3d at 888 (quoting United
States v. Culverhouse, 507 F.3d 888, 896 (5th Cir. 2007)). In this case, there are
multiple distinct similarities between the two offenses. First, the offenses
themselves are the same—conspiracy to possess with intent to distribute a
controlled substance. Both offenses began with renting a car from Enterprise
Rent-A-Car in Baton Rouge, Louisiana. In addition, both involved Finley
traveling with an accomplice to Brownsville, Texas, where the two spent a single
night at a hotel. Also in both offenses, after a one-day stay in Brownsville,
Finley and the accomplice then began transporting drugs north through the
Sarita Border Patrol checkpoint. The amount of drugs in both offenses was
greater than a personal-use amount—5.44 kilograms of marijuana and 18.7
grams of ecstasy in the first incident and 16.8 kilograms of marijuana in the
second incident. Furthermore, the fact that the drugs were acquired in South
Texas in both incidents and that Finley informed Lubecke that he had a supplier
in South Texas suggests that the drugs shared a common source or supplier. Cf.
United States v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993) (finding district court

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did not err in concluding that drugs were part of defendant’s “on-going drug
trafficking operations” after noting, inter alia, that the drugs were mailed from
California and the defendant stated that his regular drug supplier was located
in Los Angeles). Thus, the distinct similarities between the two offenses here
suggest that they are part of the same course of conduct.4
       When considering the regularity factor, we “inquire whether there is
evidence of a regular, i.e., repeated, pattern of similar unlawful conduct directly
linking the purported relevant conduct and the offense of conviction.” Rhine, 583
F.3d at 889–90. The facts in this case suggest that Finley repeatedly traveled
to South Texas, purchased drugs there, and transported them north, and that
the March 2011 and February 2012 offenses were part of this regular pattern of
activity. Finley’s statement to Lubecke that he made “multiple trips” to South
Texas to purchase drugs is strong evidence that he did just that.5 The March

       4
         The cases cited by Finley to show otherwise are distinguishable because the offenses
in those cases shared much fewer similarities than are present here. See Rhine, 583 F.3d at
889 (concluding that similarity was lacking due to “significant” differences, including
quantities, methods of distribution, participants, nature of the transactions, and the
defendant’s role in the transactions, as well as the fact that there was no evidence that the
drugs came from a “common source, supplier, or destination”); United States v. Wall, 180 F.3d
641, 646 (5th Cir. 1999) (concluding that there were “significant differences” between the two
offenses: there was no evidence that the drugs “shared a common source, supplier, or
destination”; an accomplice was used in one incident, but not the other; and one incident
involved “large loads of marijuana secreted in the wheels and gas tank of two pick-up trucks
driven across the border,” while the other incident involved a “much smaller” load hidden in
a car).
       5
          Finley’s reliance on Rhine, 583 F.3d at 890–91, to suggest that his statements to
Lubecke are little evidence of regularity, because the “multiple trips” may have occurred prior
to the March 2011 offense, is misplaced. In Rhine, we concluded that regularity was lacking
because there was not “even a scintilla of evidence” that the defendant engaged in the sale of
drugs between the two offenses in question. 583 F.3d at 890. We noted that conduct occurring
prior to both the purported relevant conduct and the offense of conviction usually carries
questionable persuasive value. Id. at 890–91. However, we recognized that “there may be the
rare case in which a prior conviction or prior activity informs this analysis by establishing a
direct link, i.e., a pattern of regularity or repetition, between the purported relevant conduct
and the offense of conviction (e.g., if a specific ‘course of conduct’ began before the ‘relevant

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2011 offense appears to be one of the trips to which Finley referred. The
February 2012 offense was another such trip—a continuation of this pattern of
activity. Because there is “evidence of a regular, i.e., repeated, pattern of similar
unlawful conduct directly linking the purported relevant conduct and the offense
of conviction,” this factor weighs in favor of finding that the two offenses in
question were part of the same course of conduct. Id.
       Finally, with regard to the temporal factor, “[w]e have ‘generally used a
year as the benchmark.’” Rhine, 583 F.3d at 886–87 (quoting United States v.
Booker, 334 F.3d 406, 414 (5th Cir. 2003)); see also United States v. Ocana, 204
F.3d 585, 590 (5th Cir. 2000) (“It is well settled in this circuit that offenses which
occur within one year of the offense of conviction may be considered relevant
conduct for sentencing.”). Since the two offenses occurred within this benchmark
period—approximately eleven months apart—this factor weighs in favor of
finding that they were part of the same course of conduct.
       Because all three factors weigh in favor of finding that the March 2011
offense was part of the same course of conduct as the offense of conviction, the
district court did not clearly err in determining that the March 2011 offense was
relevant conduct under the Guidelines.
       AFFIRMED.




conduct’ and continued through to the offense of conviction).” Id. at 891. To the extent that
the “multiple trips” that Finley described to Lubecke occurred prior to the March 2011 incident
as Finley suggests, this case would be one of the cases described in Rhine in which the prior
drug trafficking demonstrates “a specific ‘course of conduct’ [that] began before the ‘relevant
conduct’ and continued through to the offense of conviction.” Id. Therefore, Finley’s statement
to Lubecke that he made “multiple trips” to South Texas to purchase drugs is evidence that
he regularly and repeatedly committed such offenses regardless of whether they occurred
before or between the two offenses in question.

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