     Case: 19-20523       Document: 00515503346         Page: 1     Date Filed: 07/27/2020




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

                                                                                 FILED
                                     No. 19-20523                            July 27, 2020
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ROBERT COLEMAN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CR-689-1


Before BARKSDALE, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Pursuant to a plea agreement, Robert Coleman pleaded guilty to:
manufacturing and possessing, with intent to distribute, cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (Count 1); and discharging a firearm during
and in relation to a drug-trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii) (Count 2). The district court sentenced him to, inter alia,
imprisonment of 70 months for Count 1 and the § 924 mandatory consecutive


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 19-20523

minimum 120 months for Count 2. He contends the court erred in determining
his advisory Sentencing Guidelines sentencing range for Count 1 because,
applying Guideline § 1B1.3 (relevant conduct), it included in his relevant
conduct 28 grams of cocaine base he sold to a cooperating source in May 2018,
rather than considering only the drugs involved in his November 2018 offense
of conviction.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      “A finding by the district court that unadjudicated conduct is part of the
same course of conduct or common scheme or plan [and, as discussed infra,
therefore satisfies Guideline § 1B1.3] is a factual determination . . . .” United
States v. Rhine, 583 F.3d 878, 884–85 (citations omitted). Factual findings are
clearly erroneous only if they are not “plausible in [the] light of the record as a
whole” and, therefore, “leave[ ] us with the definite and firm conviction that a
mistake has been committed”. United States v. Nava, 957 F.3d 581, 586 (5th
Cir. 2020) (internal quotation marks and citations omitted). There was no
clear error.
      “[I]n a drug distribution case, quantities and types of drugs not specified
in the count of conviction are to be included in determining the offense level if



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                                 No. 19-20523

they were part of the same course of conduct or part of a common scheme or
plan as the count of conviction”. U.S.S.G. § 1B1.3, cmt. background; see also
Rhine, 583 F.3d at 885. In such cases, our court has “broadly defined what
constitutes the same course of conduct or common scheme or plan”. Rhine, 583
F.3d at 885 (internal quotation marks and citation omitted). Offenses qualify
as the same course of conduct under Guideline § 1B1.3 if they “pass the test of
similarity, regularity[,] and temporal proximity”. United States v. Bethley, 973
F.2d 396, 401 (5th Cir. 1992) (citation omitted). “A weak showing as to any one
of these factors will not preclude a finding of relevant conduct; rather, when
one . . . is absent, a stronger presence of at least one of the other factors is
required”. Rhine, 583 F.3d at 886 (alteration, internal quotation marks, and
citation omitted).
      Contrary to Coleman’s contentions, the court’s finding the May 2018 sale
satisfied Guideline § 1B1.3 was plausible in the light of the record. The six-
month interval at issue easily satisfies our court’s one-year “benchmark for
determining temporal proximity”. Id. at 887 (citation omitted). Coleman’s
offenses are also similar because they involved his possessing cocaine base to
sell in the area around his home. His conduct, moreover, meets the threshold
for regularity; on multiple occasions between the two incidents, police
surveilling him heard—on intercepts—him selling drugs, including cocaine
base, and a witness told police that Coleman manufactured and sold cocaine
base from his residence. See id. at 890 (citation omitted).
      AFFIRMED.




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