                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                    PUBLISH
                                                                          DEC 16 1997
                   UNITED STATES COURT OF APPEALS
                                                                       PATRICK FISHER
                                                                               Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                      No. 96-3307

 CALVIN MOORE,

       Defendant-Appellant.


                 Appeal from the United States District Court
                          for the District of Kansas
                           (D.C. No. 92-20071-01)


Leon Patton, Assistant United States Attorney, Kansas City, Kansas, for Plaintiff-
Appellee.

David J. Phillips, Federal Public Defender, Kansas City, Kansas, for Defendant-
Appellant.


Before EBEL, LOGAN, and BRISCOE, Circuit Judges.


EBEL, Circuit Judge.


      This case involving a small-time drug conspiracy among crack addicts in

Kansas City, Kansas, has bedeviled the district court there for nearly five years,

requiring three separate sentencing hearings. We now conclude that the evidence
in the record is sufficient as a matter of law to support the district court’s finding

that Moore’s uncharged, unconvicted, post-conspiracy drug deal was part of the

same course of conduct encompassed in the conspiracy for which Moore was

charged and convicted. As a result, we affirm.

                                          I.

      The facts of this case were reported in an earlier panel decision, see United

States v. Moore, 83 F.3d 1231 (10th Cir. 1996), and only those facts relevant to

the resolution of this appeal will be repeated here. In the fall of 1991, federal

investigators became aware of a network of drug dealers operating out of a house

in Kansas City, and over the course of six months, undercover agents made five

purchases, for a total of 65 grams, of cocaine base (crack cocaine) from the

group. The largest single purchase was the last one, on March 5, 1992, for 22.6

grams of crack.

      The investigation then entered a six-month hiatus as agents worked on

other cases, but in the fall of 1992, investigators decided it was time to put

Moore’s network out of business. Over the course of four days in early

September 1992, undercover agents negotiated and ultimately agreed with Moore

to purchase nine ounces of crack for $8,100. This was a much larger quantity

than any of their previous controlled buys from Moore. When the agents arrived

to pick up their purchase, Moore’s accomplice told them that Moore could only


                                         -2-
supply the crack one ounce at a time. The agents insisted on talking to Moore

directly about the change in the agreement, but when everyone emerged from the

house to use a car phone outside, the waiting surveillance team mistakenly

believed the transaction was complete, and they arrested Moore’s accomplice.

The nine ounces of crack cocaine never arrived at the house, and when

investigators searched the house, they did not find even the one ounce that had

been promised.

      Moore subsequently pled guilty to one count in a six-count indictment, that

is, a conspiracy beginning October 3, 1991 and ending March 5, 1992. The

September 1992 deal for nine ounces of crack was not included in any count in

the indictment. Finding that Moore’s sentence calculation should include the

September 1992 deal, the district court sentenced Moore to 188 months in prison.

Thereafter, Moore’s trial counsel failed to file a timely appeal, and Moore

subsequently brought a motion under 28 U.S.C. § 2255 (habeas corpus) alleging

ineffective assistance of counsel. The district court granted Moore’s motion,

vacated his original sentence, and reimposed a 188-month sentence so that Moore

might have the opportunity to appeal the sentence.

      On appeal, this circuit reversed and remanded the case because the district

court erroneously believed it was without jurisdiction to reevaluate the original

sentence or to hear new evidence. See Moore, 83 F.3d at 1235. At the new


                                        -3-
sentencing hearing, the district court heard extensive evidence and decided to

reverse one of its original findings, that Moore was an organizer, leader, manager

or supervisor in the conspiracy. As a result, the court calculated Moore’s total

offense level under the Sentencing Guidelines at 34, with a Category I criminal

history score, resulting in an available sentencing range of 151 to 188 months.

The court sentenced Moore at the bottom of the range -- 151 months -- because of

the “nature of the offense and the fact that the Defendant has no serious record of

criminal offenses.” Moore now challenges his new sentence, contending that the

nine-ounce deal that was never consummated should not have been included in

the drug-amount calculation and a correct calculation would have resulted in an

offense level of 32, with an available sentencing range of 121 to 151 months.

                                         II.

      We review a district court’s legal interpretations of the Sentencing

Guidelines de novo, but the factual findings underlying the district court’s

calculation of the offense level may be reversed only if they are clearly erroneous.

See United States v. Wacker, 72 F.3d 1453, 1477 (10th Cir.), cert. denied, 117 S.

Ct. 136 (1996). The government bears the burden of proving by a preponderance

of the evidence the amount of drugs attributable to a defendant for sentencing

purposes. See United States v. Richards, 27 F.3d 465, 468 (10th Cir. 1994). We

will not disturb a sentencing court’s factual findings unless they are “without


                                        -4-
factual support in the record, or if after reviewing all the evidence we are left

with the definite and firm conviction that a mistake has been made.” United

States v. Garcia, 78 F.3d 1457, 1462 (10th Cir.) (quoting United States v.

Beaulieu, 893 F.2d 1177, 1182 (10th Cir. 1990)), cert. denied, 116 S. Ct. 1888

(1996).

      After ten years of living under the Sentencing Guidelines, it is uncontested

today that uncharged, unconvicted conduct may be considered by a district court

in calculating a sentence. See United States Sentencing Commission, Guidelines

Manual, § 1B1.3, comment. (backg’d) (Nov. 1991) (“Conduct that is not formally

charged or is not an element of the offense of conviction may enter into the

determination of the applicable guideline sentencing range.”); see also United

States v. Watts, 117 S. Ct. 633, 638 (1997) (per curiam) (holding that even

conduct for which the defendant is acquitted may be considered for sentencing

purposes). It is well-settled in this circuit that a sentencing court may look

beyond the offense of conviction and “may consider quantities of drugs not

alleged in calculating a defendant’s base offense level, provided the drugs were

part of the same course of conduct or common scheme or plan as the offense of

conviction.” United States v. Roederer, 11 F.3d 973, 978 (10th Cir. 1993).

Moore does not challenge this well-settled principle.




                                        -5-
                                        III.

                                         A.

      Moore has focused his argument in this appeal on the scope of section

2D1.4, the guideline for evaluating the amount of drugs attributable to a

conspiracy. 1 See U.S.S.G., § 2D1.4 comment. (n.1) (Nov. 1991). Section 2D1.4,


      1
        The parties also have disputed whether it was error for the district court to
use the Guidelines Manual that was effective November 1, 1992, rather than the
Manual effective November 1, 1991. The record indicates that the Court relied on
the November 1992 Manual even though the parties both agreed that the
appropriate Manual was the earlier one. (See R., vol. VIII, 1996 Sentencing Tr.,
324-25 (quoting language from the November 1992 Manual).)
       Moore claims he was prejudiced by this mistake. He argues that because of
the terminology and structure of the 1991 guideline on drug conspiracies, the
calculation of his sentence should have been limited to his “offense of
conviction.” Moore argues that this prejudice arises from the fact that 1992
guideline for conspiracies eliminated the terminology and structure of the 1991
guideline. Compare U.S.S.G., § 2D1.4, comment. (n.1) (Nov. 1991) with
U.S.S.G., § 2D1.1, comment. (n.12) (Nov. 1992).
       We note, however, that the Sentencing Commission said the change
between the 1991 and 1992 guidelines merely “clarifie[d] and simplifie[d] the
guideline provisions dealing with attempts and conspiracies in drug cases.”
U.S.S.G., App. C, Amend. 447 (Nov. 1992) (effective Nov. 1, 1992). Other
courts have held that Amendment 447 made no substantive change for sentencing
of conspiracies. See, e.g., United States v. Hendrickson, 26 F.3d 321, 330 n.6 (2d
Cir. 1994); United States v. Crawford, 991 F.2d 1328, 1332 n.3 (7th Cir. 1993).
       In Moore’s case, though, we need not determine whether Amendment 447
effected a substantive change in the law because we resolve this case on other
grounds. As we discuss below, regardless of the scope of the conspiracy
guideline in section 2D1.4 (Nov. 1991), the district court appropriately considered
the uncharged September 1992 deal as “relevant conduct” under section 1B1.3
(Nov. 1991). Thus, the more important question for this case is not the wording
of the conspiracy guideline, but rather the requirements for finding uncharged
activity to be “relevant conduct.” For purposes of this appeal, there is no material
difference between the 1991 and 1992 Manuals on the scope of relevant conduct.

                                        -6-
however, is not the end of the analysis. This provision merely tells the district

court how to measure an amount of drugs that was under negotiation but not

actually delivered. See id. The next step for the district court is to follow the

Guidelines’ circuitous instructions for determining whether this negotiation

should be considered “relevant conduct.” See U.S.S.G. § 1B1.2(b) (“After

determining the appropriate offense guideline section . . . , determine the

applicable guideline range in accordance with § 1B1.3 (Relevant Conduct).”).

Turning to the relevant conduct guideline, the district court is then directed to

review section 3D1.2(d), the guideline for grouping multiple offenses. See

U.S.S.G., § 1B1.3(a)(2) (Nov. 1991). 2 In the end, this hopscotch through the

Manual requires the district court to make specific findings first, that “the offense

[is] the type of offense that, if the defendant had been convicted of both offenses,

would require grouping with the offense of conviction,” and second, that “the

offense [i]s ‘part of the same course of conduct or common scheme or plan.’”

United States v. Taylor, 97 F.3d 1360, 1363 (10th Cir. 1996) (quoting U.S.S.G., §

1B1.3(a)(2)).

      We treat the determination of whether uncharged conduct is “groupable”

with the offense of conviction as a conclusion of law. See id. at 1363 (holding



      2
       The November 1992 Manual has a similar reference to the guideline for
grouping offenses. See U.S.S.G., § 1B1.3(a)(2) (Nov. 1992).

                                        -7-
that an appellate court may make a conclusion of law on the grouping question

despite the lack of a district court finding on the question). Thus, in this case, we

review the grouping issue de novo. The second requirement for determining

relevant conduct -- whether the offense is part of the same course of conduct or

common scheme -- is a pure factual question for which the district court must

make specific findings to support its sentence. See United States v. Crockett, 82

F.3d 722, 729-30 (7th Cir. 1996) (holding that factual findings generally are

required, but the error in that case was harmless because the defendant’s actual

sentence would have been no different without the challenged unconvicted

conduct).

      In Moore’s case, he claims that the September 1992 deal was outside the

scope of the indictment, which alleged a conspiracy ending in March 1992, and

therefore should not have been included in his sentencing calculation. 3 As

Moore’s counsel stated during the 1996 sentencing hearing, “[T]here has to be a




      3
        There is some doubt as to whether Moore’s counsel adequately presented
the argument he raises here to the district court so as to put the district court on
notice as to the issue in contention. Despite this possible waiver of the argument,
we have considered the issue because the government makes no claim to us that
Moore waived the argument, and the record arguably can be interpreted as raising
the issue: During the 1996 sentencing hearing, Moore’s counsel argued against
considering the September deal as part of the same course of conduct as the prior
five crack purchases.

                                        -8-
stop to the case. I think the case stopped back in March of 1992. And -- and

what went on [thereafter] was a leap of faith.”

      Based on the record before this Court, it is clear as a matter of law that

Moore’s September 1992 agreement to sell nine ounces of crack was an offense

that would be “groupable” with his conviction for conspiracy to distribute crack.

Cf. Taylor, 97 F.3d at 1364 (finding that a dismissed drug conspiracy count was

“groupable” with the drug manufacturing count to which the defendant pleaded

guilty). Section 3D1.2(d) makes grouping of certain drug offenses, including

distribution, mandatory. See U.S.S.G., § 3D1.2(d) (Nov. 1991). The application

note for this subsection requires the court to group a conspiracy or attempt charge

in the same manner as the underlying substantive offense. See id., comment.

(n.6). Thus, because Moore’s September 1992 agreement was an attempt to

distribute crack, it may be grouped together with his offense of conviction, i.e.,

conspiracy to distribute crack, as well as his other unconvicted offenses, i.e.,

distribution of crack.

      When the district court discussed the inclusion of Moore’s September 1992

drug deal under Note 12 to § 2D1.1 (Nov. 1992) as part of the same course of

conduct as his earlier sales, it equated the inclusion of drug quantities under that

provision to the inclusion of drugs as relevant conduct. In that discussion, the

court said,


                                        -9-
             There is no reason to conclude that offense there [in
             Note 12 to § 2D1.1 (Nov. 1992)] does not include
             relevant conduct, because that is precisely how offense
             is defined in that guideline at U.S.S.G. Section 1B1.1,
             Commentary Application Note 1-L. See U.S. v. Garcia,
             69 F.3d at 810, Seventh Circuit case from 1995, which
             uses [the] relevant conduct and negotiated amounts
             provisions together, as well as U.S. v. Nichols, 986 F.2d
             1199, Eighth Circuit, 1993.

The September 1992 drug deal can clearly be included for sentencing purposes as

relevant conduct under the 1991 version of the Sentencing Guidelines, which

Moore agrees is the correct version to use.

      The legal standard for determining whether a defendant’s uncharged acts

are part of the same course of conduct as his offense of conviction is quite

generous. This circuit has adopted the view of the Second Circuit in

distinguishing between a “common scheme or plan” and the “same course of

conduct.” See Roederer, 11 F.3d at 979 (quoting United States v. Perdomo, 927

F.2d 111, 115 (2d Cir. 1991)). In assessing a defendant’s course of conduct, the

court is to consider such factors “‘as the nature of the defendant’s acts, his role,

and the number and frequency of repetitions of those acts, in determining whether

they indicate a behavior pattern.’ Similarity, regularity, and temporal proximity

are the significant elements to be evaluated.” Id. (quoting United States v.

Santiago, 906 F.2d 867, 872 (2d Cir. 1991)).




                                        - 10 -
       In Moore’s case, the record shows substantial similarity between his nine-

ounce crack deal in September 1992 and the smaller deals that comprised the

earlier conspiracy: The same undercover agents negotiated the deal, for the same

kind of illegal substance, using the same players in Moore’s crew of associates,

and relying on the trust and good faith that had developed from their earlier deals.

Although the amount of crack in the September 1992 was larger than ever before,

this difference does not outweigh the rest of the similarities with the earlier

activities.

       As for the other Roederer factors of regularity and temporal proximity, we

believe that the six-month break in 1992 in Moore’s dealings with undercover

agents is insufficient to establish an interruption in his course of conduct. The

record establishes that on every occasion that undercover agents attempted to

arrange a purchase of drugs, Moore agreed and the deal eventually was

consummated. The regular pattern of drug purchases was interrupted only when

undercover agents decided for independent reasons to put the Moore investigation

into hiatus. However, when the agents resumed the investigation, they again met

with little difficulty in arranging a deal. Furthermore, the six-month hiatus does

not undermine the conclusion that Moore’s activity in September 1992 was

temporally proximate with the charged conspiracy in March 1992. See Roederer,

11 F.3d at 980 (finding temporal proximity in a course of cocaine dealing, despite


                                        - 11 -
a nine-month break in drug purchases during the buyer’s pregnancy). On the

basis of this record, we have come to a firm conviction that as a matter of law

Moore’s September 1992 deal for nine ounces of crack was part of the same

course of conduct as his earlier drug deals.

                                         B.

      The parties spend much of their briefs arguing over the applicability of

Footnote 4 in Reyes, specifically the statement there that a quantity of drugs

under negotiation may not be included in sentencing as relevant conduct unless

there is evidence that the defendant actually possessed or distributed the drugs.

Reyes, 979 F.2d at 1408 n.4. Moore believes that in light of this footnote,

because there was no evidence that he actually possessed or distributed the

disputed nine ounces of crack, this deal cannot be included in his sentence. This

Court, however, views Footnote 4 as pure dictum, and thus, the statement is not

controlling.

      Reyes involved a defendant who had pleaded guilty to one count of using a

telephone to facilitate a cocaine distribution conspiracy. Id. at 1406-07. The

defendant accepted the court’s finding that ten ounces of cocaine purchased by his

co-conspirators could be attributed to him, but he challenged the inclusion of

another pound of cocaine that the government claimed he negotiated to sell to

government agents. See id. at 1407-08, 1407 n.2. The Reyes panel reversed the


                                       - 12 -
defendant’s sentence solely on the grounds that there was insufficient evidence to

conclude an actual negotiation or agreement occurred. Id. at 1410-11. The court

specifically acknowledged in Footnote 4 that it need not reach the question of

whether the pound of cocaine could be considered relevant conduct. See id. at

1408 n.4. The finding that there was no negotiation or agreement meant that there

was no activity -- such as the alleged negotiation -- that could be considered

“conduct,” let alone whether it would be “relevant” for sentencing.

      In support of our view that Footnote 4 is not controlling, we note the

holdings from other circuits that uncharged amounts of drugs in a drug conspiracy

may be attributed to a defendant as relevant conduct even if he never actually

possessed or distributed the drugs. See, e.g., United States v. Ynfante, 78 F.3d

677, 680-82 (D.C. Cir. 1996) (upholding a sentence based on an agreement to sell

two ounces of cocaine even though only one ounce was delivered); United States

v. Garcia, 69 F.3d 810, 818-20 (7th Cir. 1995) (upholding a sentence based on

negotiations to deliver four kilograms of cocaine); United States v. Davern, 970

F.2d 1490, 1493-95 (6th Cir. 1992) (upholding a sentence based on agreement to

buy 500 grams of cocaine when only 85 grams were actually delivered). 4


      4
       Even the defendant in Reyes conceded this point, that a negotiated amount
of drugs may be included in a sentencing calculation even if the defendant did not
actually possess or distribute those drugs. See Reyes, 979 F.2d at 1408. This
concession by the defendant confirms our conclusion that the court’s discussion in
Footnote 4 is dicta.

                                       - 13 -
                                        IV.

       Moore raises an alternative argument in this case that the district court

erred in finding that he fully intended and was capable of delivering the nine

ounces of crack negotiated in the September 1992 deal. Moore contends that

there was insufficient evidence to support this factual finding under Application

Note 1 for section 2D1.4. 5

      During the 1996 sentencing hearing, the district court found that the last

negotiation between Moore and undercover agents resulted in a firm agreement,

“virtually a bilateral contract.” The court found that Moore intended to deliver

the nine ounces of crack, and that he was capable of filling this order even though

it was more than ten times the amount of any previous purchase.

      These factual findings are not clearly erroneous. There is ample evidence

in the record to support the district court’s view that even if Moore could not

deliver the nine ounces all at once, the offer to deliver the crack in one ounce


      5
       The district court actually relied on language in the 1992 Manual that is
identical, although located elsewhere, to the 1991 guideline. See U.S.S.G., §
2D1.1 (n.12) (Nov. 1992). The provision in both guidelines reads:
              [W]here the court finds that the defendant did not intend
              to produce and was not reasonably capable of producing
              the negotiated amount, the court shall exclude from the
              guideline calculation the amount that it finds the
              defendant did not intend to produce and was not
              reasonably capable of producing.
U.S.S.G., § 2D1.4 comment. (n.1) (Nov. 1991); U.S.S.G., § 2D1.1 (n.12) (Nov.
1992).

                                       - 14 -
installments showed an intent and capacity to fill the order. For example, the

government’s undercover agent testified that the course of negotiations with

Moore indicated a capacity to deliver up three to four ounces a week, and Moore

never indicated an intent not to ultimately deliver all nine ounces. Consequently,

we reject Moore’s argument that the district court’s inclusion of the nine ounces

was improper under section 2D1.4.

                                        V.

      In light of our conclusion that the record supports a conclusion that as a

matter of law, Moore’s uncharged, unconvicted, post-conspiracy drug deal should

be considered as relevant conduct in his sentence, we AFFIRM.




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