                  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 been




  *
   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opinion should not be published and is not precedent except under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.
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 violation 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 points be assessed for

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

See U.S. Sentencing Guidelines 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,




                                2
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 criminal 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 term 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

United States Sentencing Guidelines (“Guidelines”).           See United

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

district court’s factual findings and its determination of what

constitutes    relevant   conduct   for   purposes   of   sentencing   are

reviewed for clear error.    See 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 one



  1
   Thus, at the time of her          federal   sentencing,    Abarca   was
incarcerated in state prison.

                                     3
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 commencement of the

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

still a prior sentence if it was for conduct other than conduct

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

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

relevant conduct to the instant offense under the provisions of

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

Guidelines defines “relevant conduct” in pertinent part as:

             (A) all acts and omissions committed, aided,
             abetted, counseled, commanded, induced, procured,
             or willfully caused by the defendant; and
             (B) in the case of a jointly undertaken criminal
             activity . . . all reasonably foreseeable acts and
             omissions of others in furtherance of the jointly
             undertaken criminal activity, that occurred during
             the commission of the offense of conviction, in
             preparation 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 her


                                     4
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

amount2 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

cocaine, 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 rather

  2
   The amount sold in the cocaine sales other than the August 22,
1997 state offense was at least four kilograms.     The marijuana
equivalency would have been 800 kilograms.     See United States
Sentencing Guidelines Manual § 2D1.1 application note 10.

                                      5
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   whether   the   prior   conduct

constitutes a severable, distinct offense from the instant offense

of conviction.       See United States v. Thomas, 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 conspiracy, as


                                       6
stated in the PSR, ended by March 1997, several months before the

August 22, 1997 offense.

     Admittedly, perceiving the prior cocaine 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 indictment 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 both grouped as relevant conduct for the

marijuana 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 court


                                   7
is AFFIRMED.




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