    Case: 17-10597    Document: 00514501580      Page: 1   Date Filed: 06/05/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                 No. 17-10597                          June 5, 2018
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                            Plaintiff–Appellee,

versus

ALFREDO MALACHI HEARD, Also Known as Wood,

                                            Defendant–Appellant.



                Appeal from the United States District Court
                     for the Northern District of Texas




Before SMITH, WIENER, and WILLETT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Alfredo Heard pleaded guilty of conspiring to possess with intent to dis-
tribute fifty grams or more of methamphetamine in violation of 21 U.S.C. § 846
(21 U.S.C. § 841(a)(1), (b)(1)(B)). He appeals the sentence, challenging the cal-
culation of his criminal history score, maintaining that a conviction of drug
possession entered while the conspiracy was ongoing should have been consid-
ered relevant conduct instead of a prior conviction. We affirm.

                                       I.
      In December 2015, Heard was charged with conspiracy to distribute
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                                  No. 17-10597
methamphetamine, heroin, and cocaine. He pleaded guilty of conspiracy to
possess with intent to distribute fifty grams or more of methamphetamine.
Based on Heard’s distribution activities from March 2014 to March 2015, his
total offense level was 37.

      Heard’s criminal history score was 7, which produced a criminal history
category of IV, which included one point for a July 2014 conviction of possession
of a controlled substance. Heard was sentenced to three days of imprisonment
for the July 2014 offense, which involved .1 gram of alprazolam and 5 grams of
marihuana. The offense level of 37 and criminal history category of IV pro-
duced a guideline range of 292–365 months.

      Heard objected that his July 2014 conviction should not have received a
criminal history point but instead should have been considered part of the rel-
evant conduct because it fell within the dates of the conspiracy. Were his crim-
inal history score 6 instead of 7, he would have a criminal history category of
III and a range of 262–327 months. The district court overruled the objection
and imposed a sentence of 292 months, which fits within both of the afore-
mentioned ranges and is at the bottom of the range of 292−365 months.

                                       II.
      Relevant conduct includes all acts and omissions that were either part of
a common scheme or plan or part of the same course of conduct as the offense
of conviction. See U.S.S.G. § 1B1.3(a) cmt.5(B). Conduct is part of a common
scheme or plan if it is “substantially connected to [the offense of conviction] by
at least one common factor, such as common victims, common accomplices,
common purpose, or similar modus operandi.” United States v. Ortiz, 613 F.3d
550, 557 (5th Cir. 2010). The district court did not clearly err in treating
Heard’s possession offense as a prior conviction rather than as relevant
conduct.
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                                  No. 17-10597
      Heard pleaded guilty of conspiring to possess and distribute metham-
phetamine. At the time of sentencing for the conspiracy, he had been sen-
tenced in July 2014 for possession of a controlled substance. That conviction
involved marihuana possession, while the conspiracy involved methampheta-
mine distribution. This suggests distinct crimes. The two offenses lack a
shared factor as required by the guidelines. See U.S.S.G. § 1B1.3 cmt.5(B)(i).

      Nor is the timeline conclusive. “[T]hat an unrelated drug conviction and
sentence occur during the timeframe of a drug conspiracy does not automati-
cally convert them into relevant conduct of the conspiracy.” United States v.
Robinson, 744 F.3d 293, 301 (4th Cir. 2014). “A sentence imposed after the
defendant’s commencement of the instant offense, but prior to sentencing on
the instant offense, is a prior sentence if it was for conduct other than conduct
that was part of the instant offense.” U.S.S.G. § 4A1.2 cmt.1.

      The cases Heard cites are distinguishable. They hold that a court may
consider, as relevant conduct, the total amount of a drug obtained by a defen-
dant in a conspiracy, even where he intended to distribute only a part of that
quantity and personally to use the other portion. The defendant’s personal-
use portion of the drug involved in the conspiracy is closely linked to the con-
spiracy itself. See, e.g., United States v. Fregoso, 60 F.3d 1314, 1328–29 (8th
Cir. 1995).

      Had his prior conviction been for possession of methamphetamine,
Heard’s point would be well taken. Here, however, the marihuana was not
linked to the conspiracy to distribute methamphetamine. Thus, it was not
clear error to consider the offense as a prior conviction.

      AFFIRMED.




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