                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-4024


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

DERRICK ANTHONY LUCAS, a/k/a Ease Up,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:07-cr-00794-TLW-1)


Submitted:    August 26, 2009                 Decided:   October 7, 2009


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


T. Kirk Truslow, TRUSLOW LAW FIRM, LLC, North Myrtle Beach,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Carrie A. Fisher, Alfred W. Bethea, Assistant United
States Attorneys, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Derrick      Anthony        Lucas      was    convicted       by    a    jury   of

possession      with       intent     to    distribute        five       grams    or    more    of

cocaine       base    (crack),      21      U.S.C.      §    841(a),      (b)(1)(B)         (2006)

(Count 1); using and carrying a firearm during and in relation

to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A) (2006)

(Count 2), and possession of a firearm by a convicted felon, 18

U.S.C.    §    922(g)(1)       (2006)       (Count      3).         He   received       a   total

sentence of 324 months imprisonment for Counts 1 and 3, with a

sixty-month consecutive sentence for Count 2.                             Lucas appeals his

sentence, contending that the district court erred in finding

that his prior drug activity constituted relevant conduct under

U.S. Sentencing Guidelines Manual § 1B1.3(a) (2008).                               We affirm.

               Lucas sold 1.5 grams of marijuana to a confidential

informant in July 2005.                  A search warrant was executed at his

home.     When the officers entered, Lucas was exiting the kitchen

where powder cocaine was being cooked into crack.                                 Twelve bags

of marijuana packaged for sale were recovered, as well as a .357

Magnum revolver that was found under Lucas’ mattress.                                        After

federal       charges       were    brought           against       Lucas,       investigators

interviewed          six    persons        who    described         crack    and       marijuana

transactions         with    him    going        back   to    the    early    1990’s.          One

witness testified at Lucas’ trial.                      Information from all six was



                                                  2
used to calculate the quantity of crack attributable to Lucas

for sentencing purposes.

            “When    a    defendant     has       committed     multiple    offenses

similar to the charged offense, all conduct that is ‘part of the

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

of    conviction’        constitutes        relevant       conduct”    under     USSG

§ 1B1.3(a)(2).       United States v. Hodge, 354 F.3d 305, 312-13

(4th Cir. 2004) (quoting USSG § 1B1.3(a)(2)); see also United

States v. Dugger, 485 F.3d 236, 241-42 (4th Cir. 2007) (same).

Application Note 9(B) to § 1B1.3 provides that prior offenses

are 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.”       Hodge, 354 F.3d at 313.                  Criminal acts may be

part of the same course of conduct even if they do not involve

common participants and are not connected by an overall scheme.

Id.    Factors to be considered in determining whether offenses

are part of the same course of conduct “include the degree of

similarity of the offenses, the regularity (repetitions) of the

offenses,   and     the    time    interval       between     the   offenses.”    Id.

(quoting    Application       Note     9(B)).          The    sentencing     court’s

determination     that     prior     drug       activity     constituted    relevant

conduct because it was part of the same course of conduct as the

offense of conviction is reviewed for clear error.                    Id.

                                            3
              Lucas correctly asserts that the instant offense and

his prior drug activity were not part of a common scheme or

plan.   USSG § 1B1.3, comment. (n.9(A)).             He also argues that his

prior conduct was not part of the same course of conduct as the

instant offense because he was not convicted of conspiracy and,

with respect to each witness’ statement, he claims that “[t]he

offense of conviction was possession of drugs,” while the prior

“activity [was] drug transacting” which was unconnected to the

instant offense.        In fact, Lucas’ current offense is possession

with intent to distribute, not simple possession.                 He was in the

act of cooking powder cocaine into crack when the search was

executed at his home and bags of marijuana packaged for sale

were also found in his home.             These facts show a high degree of

similarity      between    his    current     offense     and   his   prior    drug

activity, which involved sale of both crack and marijuana.

              Lucas   argues     that,   taking    each    witness    separately,

there   was    little     regularity     (number    of    repetitions)    in    his

dealings with each of them, and there was often a considerable

lapse of time between his various transactions with them.                        In

addition, most of the prior drug transactions were remote in

time from the instant offense.               However, the evidence of Lucas’

prior drug activities established that he consistently bought

and sold cocaine, crack, and marijuana over a ten-to-fifteen

year period in Hartsville and the surrounding county.

                                         4
              Not all prior drug activity is necessarily relevant

conduct.           See     Dugger,      485       F.3d     at    241-42     (defendant’s

involvement        in    scheme    to   sell      marijuana      and    Xanax     while    in

detention      for       crack    distribution           was    not    relevant    conduct

because of lack of continuity or similarity between conduct in

detention and pre-detention crack sales, which occurred a year

earlier).      However, here, the offense of conviction was exactly

the same kind of conduct as the prior drug activity described by

the witnesses.            Therefore, the district court did not clearly

err in finding that the offense of conviction was part of the

same course of conduct as Lucas’ prior drug activity.

              We    therefore       affirm        the    sentence      imposed     by     the

district    court.         We     dispense     with      oral   argument    because       the

facts   and    legal      contentions        are    adequately        presented     in    the

materials     before       the    court   and       argument      would    not    aid     the

decisional process.

                                                                                  AFFIRMED




                                              5
