                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-11319                ELEVENTH CIRCUIT
                                                            November 7, 2008
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                                CLERK

               D. C. Docket No. 07-00064-CR-FTM-34-DNF

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

RANDOLPH BUCHANON,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________
                           (November 7, 2008)


Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      Randolph Buchanon appeals his sentence, imposed following a guilty plea,

for possession with intent to distribute in May 2007 five grams or more of cocaine

base, also known as crack cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii).

Buchanon asserts the district court incorrectly calculated his base offense level

pursuant to U.S.S.G. § 1B1.3 by finding “relevant conduct” between the charged

offense and a subsequent drug offense in September 2007. Buchanon contends

the two offenses lacked distinctive similarities, temporal proximity, and regularity.

      At sentencing the district court found the May and September incidents were

sufficiently similar because they involved (1) the same substance, (2) an intent to

distribute in part by the amount and lack of any paraphernalia for use, (3) lack of

acknowledgment by Buchanon that he uses or ever used crack cocaine, and

(4) substances that were both concealed in vehicles. The court found that “five

months does not, to the Court, appear to be entirely remote or too remote to

consider it as temporally proximate.” As for regularity, the court found, “[t]here

isn’t any indication of regularity” other than two occasions in which law

enforcement found cocaine base on Buchanon which “indicates some regularity.”




                                          2
The district court sentenced Buchanon to 75 months imprisonment and five years

of supervised release.1

       This Court reviews “the sentencing court’s findings of fact for clear error

and review the application of the Sentencing Guidelines to the facts de novo.”

United States v. Blanc, 146 F.3d 847, 851 (11th Cir. 1998). We review for clear

error “the district court’s factual findings regarding whether two [offenses] at issue

in this sentencing involved the same course of conduct.” Id.

       Under U.S.S.G. § 1B1.3, the district court must consider all “relevant

conduct” when calculating the base offense level. U.S.S.G., § 1B1.3. “Relevant

conduct” includes “all acts and omissions . . . that were part of the same course of

conduct . . . as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). 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.” U.S.S.G. § 1B1.3, comment. (n.9).



       1
        The district court also stated it would have imposed the same sentence if the September
incident were not relevant conduct:

       I also think I should say that even if the Court were to have concluded that the 2.1 grams
       of crack cocaine from the September arrest were not relevant conduct, based upon all of
       the factors in this case, the Court would still be of the view that any sentence less than
       75 months would be insufficient. And therefore, I think I would still be at the same
       place, which is that 75 months is the term of imprisonment that is necessary to comply
       with the purposes of sentencing in this matter.


                                                 3
      The district court evaluates the “similarity, regularity, and temporal

proximity” between the two offenses and “must consider whether there are

distinctive similarities between the offense of conviction and the remote conduct

that signal that they are part of a single course of conduct rather than isolated,

unrelated events that happen only to be similar in kind.” United States v. Maxwell,

34 F.3d 1006, 1011 (11th Cir. 1994) (quotation omitted). “Where one of these

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

required.’” Blanc, 146 F.3d at 852 (quoting U.S.S.G. § 1B1.3 comment. (n.9)).

      “Distinctive similarities” are more than general abstractions of the conduct.

For instance, in Maxwell we held that a cocaine distribution scheme was not

“related conduct” to a dilaudid distribution conviction because they did not involve

any of the same parties or drugs. Maxwell, 34 F.3d at 1011. The only similarity

between the two distribution schemes was that “they both involve[d] drug

distribution” in the general sense. Id. We held that “to describe [the defendant’s]

conduct at such a level of generality . . . eviscerate[s] the evaluation of whether

uncharged criminal activity is part of the same course of conduct.” Id. (quotation

omitted).

      In this case, the district court found that there was no “indication of

regularity” or if there was it was minimal. Thus, in order to find relevant conduct



                                            4
between the two offenses, there must be a stronger showing of either similarity or

temporal proximity. The stronger showing is with similarity.

       The May 2007 and September 2007 offenses have more distinct similarities

than both being involved in “drug distribution.” The two offenses both involved

cocaine base, an intent to distribute, lack of any drug paraphernalia, and

concealment of the substance in vehicles rather than on Buchanon himself. See

Maxwell, 34 F.3d at 1011. These similarities show more than a generic level of

likeness, as required by Maxwell. Therefore, the district court did not commit clear

error in finding distinctive similarities between the two offenses. And as for

temporal proximity, we have never held that a five-month separation between two

offenses is too remote in time. Thus the district court did not clearly err in finding

temporal proximity between the two offenses.2

       Based upon the foregoing and our review of the record and the briefs, we

affirm Buchanon’s sentence.

       AFFIRMED.




       2
        We also find the district court’s sentence of 75 months’ imprisonment and five years of
supervised release was substantively reasonable. Gall v. United States, 552 U.S. ___, 128 S. Ct.
586, 597 (2007); United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).

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