                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                   No. 98-1583EM
                                    ___________

United States of America,                   *
                                            *
             Appellee,                      *
                                            *   On Appeal from the United States
v.                                          *   District Court for the
                                            *   Eastern District of Missouri
Mark A. Geralds,                            *
                                            *
             Appellant.                     *

                                    ___________

                              Submitted: September 21, 1998

                                   Filed: October 19, 1998
                                    ___________

Before BOWMAN, Chief Judge, WOLLMAN, and KELLY, Circuit Judges.
                             ___________


KELLY, Circuit Judge.


      Mark A. Geralds pled guilty to one count of knowingly attempting to possess,
with the intent to distribute, a controlled substance, in violation of 21 U.S.C. § 846.
On appeal, Geralds challenges the district court’s1 imposition of a 330-month prison
sentence. We affirm.
                                 I. BACKGROUND
      On May 18, 1995, Geralds was charged in a one-count indictment with
knowingly attempting to possess, with the intent to distribute, cocaine, in violation of
21 U.S.C. § 846. On December 27, 1995, Geralds entered a conditional guilty plea.
      On March 22, 1996, the district court conducted a sentencing hearing. Several
of the government's witnesses testified about prior drug transactions they had entered
into with Geralds, including the quantities of drugs they had purchased from Geralds
and the frequency with which these sales took place. One of the witnesses, Marcus
Jimmerson, testified that he had purchased 18 ounces of crack cocaine from Geralds
in December of 1992. Jimmerson also described a number of other drug transactions
involving Geralds. Two government agents, Cooper and Fisher, testified about their
interviews with Geralds, in which he had admitted his involvement in a number of drug
transactions. Geralds himself testified, stating that some of the government's testimony
was untrue.
      The Presentence Investigation Report concluded that, based on the information
provided by Geralds and Jimmerson, Geralds was accountable for at least 500 grams,
but less than 1.5 kilograms, of cocaine base, and in excess of two kilograms of cocaine.
Accordingly, the recommended base offense level was 36. Because Geralds’ criminal
history category was V, the recommended sentencing range was 292 - 365 months in
prison. Had the transaction with Jimmerson not been included, Geralds’ base offense



      1
       The Honorable Stephen N. Limbaugh, Senior United States District Judge for
the Eastern District of Missouri.

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level would have been 26, with a recommended sentencing range of 110 - 137 months
in prison. The district court included the December 1992 transaction described by
Jimmerson in calculating the base offense level, and imposed a sentence of 330 months
in prison.2
       Geralds argues that the district court erred in including the December 1992
transaction with Jimmerson as relevant conduct for sentencing purposes. He also
argues that the district court erred by not requiring the government to prove this
conduct by clear and convincing evidence rather than by a preponderance of the
evidence. In addition, in a pro se supplemental brief, Geralds set forth additional
arguments. This opinion reflects the arguments included by Geralds in his pro se brief
as well as the arguments raised in oral argument.
                                    II. ANALYSIS
                                 A. Relevant Conduct
       In a drug distribution case, quantities and types of drugs that are not specified
in the count of conviction are properly included in the offense level calculation if they
"were part of the same course of conduct or part of a common scheme or plan as the
count of conviction." United States v. Sleet, 893 F.2d 947, 949 (8th Cir. 1990)
(quoting U.S.S.G. § 1B1.3, comment).            The district court should consider the
"similarity, regularity, and temporal proximity" of the conduct in determining whether
it is part of the same course of conduct or common scheme or plan. United States v.
Chatman, 982 F.2d 292, 294 (8th Cir. 1992) (quoting United States v. Hahn, 960 F.2d


       2
       A sentence of 360 months was originally imposed by the district court. At
Geralds’ first appeal to this court, his conviction was affirmed but the case was
remanded for resentencing. See United States v. Geralds, 117 F.3d 1423 (8th Cir.
1997). Geralds was sentenced to 330 months in the second sentencing hearing.

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903, 910 (9th Cir. 1992)). This determination is factual and may be reversed only if
it is clearly erroneous. Sleet, 893 F.2d at 949.
      We conclude that the district court did not clearly err in determining that
Geralds’ possession of 18 ounces of crack cocaine in December of 1992 was part of
the same course of conduct or common scheme or plan as the powder cocaine
distribution offense for which he was convicted. The record supports the district court's
finding that the appellant possessed this crack cocaine as part of an ongoing course of
conduct and as part of a common plan or scheme to distribute cocaine throughout the
state of Missouri. The two transactions were similar in a number of ways: both were
distribution-related offenses, both involved forms of cocaine, both involved a similar
quantity of cocaine, and both involved Geralds' travel to St. Louis to acquire the
cocaine and return to Southeast Missouri to distribute the cocaine. Moreover, although
the transaction described by Jimmerson occurred 18 months prior to the offense of
conviction, both transactions were part of a regular pattern of drug distribution as
evidenced by the testimony of Jimmerson, other government witnesses, and Geralds
himself. Finally, both transactions occurred within 125 miles of one another and within
the state of Missouri. Accordingly, the district court’s inclusion of the December 1992
transaction in the calculation of Geralds’ base offense level was proper.
                                 B. Standard of Proof
      Geralds also argues that the district court should have required the government
to prove his relevant conduct by clear and convincing evidence, rather than by the
preponderance of the evidence, because his relevant conduct caused such a great
increase in his sentence. We have previously acknowledged "the possibility that the
preponderance standard the Court approved for garden variety sentencing
determinations may fail to comport with due process where, as here, a sentence


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enhancement factor becomes 'a tail which wags the dog of the substantive offense.'"
United States v. Townley, 929 F.2d 365, 369 (8th Cir. 1991) (quoting McMillan v.
Pennsylvania, 477 U.S. 79, 88 (1986)). In Townley, we did not decide this question
because we concluded that the result in that case would be the same under either
standard. Townley, 929 F.2d at 370. For the same reason, we decline to decide that
issue here. There was abundant testimony that Geralds was engaged in an ongoing
course of drug distribution. Even assuming, arguendo, that the clear and convincing
standard applies, the government has met its burden of proof.
                                III. CONCLUSION
      Because the district court did not clearly err by determining that the December
1992 transaction described by Marcus Jimmerson was relevant conduct and because
the district court properly applied the preponderance of the evidence standard to this
conduct, we affirm Geralds' sentence.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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