                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 19a0500n.06

                                           No. 18-6283

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                 Oct 01, 2019
 UNITED STATES OF AMERICA,                               )                  DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellee,                              )
                                                         )
                                                                ON APPEAL FROM THE
 v.                                                      )
                                                                UNITED STATES DISTRICT
                                                         )
                                                                COURT FOR THE EASTERN
 WILMER CABALLERO-LAZO,                                  )
                                                                DISTRICT OF KENTUCKY
                                                         )
        Defendant-Appellant.                             )
                                                         )


       Before: MOORE, McKEAGUE, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. Wilmer Caballero-Lazo pleaded guilty to conspiracy to distribute

more than 500 grams of a methamphetamine mixture. In calculating his Sentencing Guidelines

range, the district court scored 3 criminal history points under U.S.S.G. § 4A1.1(a) for Caballero-

Lazo’s prior state court conviction for possession of cocaine, rejecting his claim that the cocaine

conviction should not count as a “prior sentence” under § 4A1.1(a) because it was “part of” the

methamphetamine distribution conspiracy. See id. § 4A1.2(a)(1). Caballero-Lazo challenges only

the calculation of his criminal history score. We AFFIRM.

                                                I.

       In June 2017, Caballero-Lazo was indicted for conspiracy to distribute 500 grams or more

of a methamphetamine mixture. He pleaded guilty, admitting to his involvement in a conspiracy

to supply Kentucky drug dealers with large amounts of methamphetamine from May 2015 to

September 2016. The Presentence Investigation Report (PSR) added 3 points to Caballero-Lazo’s
No. 18-6283,United States v. Caballero-Lazo


criminal history score for a 2017 Georgia state court conviction for possession of cocaine.

Caballero-Lazo had been arrested for that offense in February 2016, when police officers observed

him holding a bag containing less than an ounce of cocaine in a public restroom.

       Caballero-Lazo objected to his criminal history score, arguing that the cocaine conviction

was “part of” the conspiracy to distribute methamphetamine, U.S.S.G. § 4A1.2(a)(1), because they

were part of the “same course of conduct” or “common scheme or plan,” id. § 1B1.3(a)(2).

Accordingly, he argued, the cocaine conviction should not earn him additional criminal history

points under § 4A1.1(a). The district court overruled his objection and sentenced Caballero-Lazo

to 198 months’ imprisonment, below the calculated Guidelines range of 210 months to 262

months. Caballero-Lazo appeals only the calculation of his criminal history score.

                                                 II.

       Caballero-Lazo’s argument that the district court miscalculated his criminal history score

is a challenge to the procedural reasonableness of his sentence. See United States v. Rayyan, 885

F.3d 436, 440 (6th Cir. 2018) (stating that procedural reasonableness requires the court to

“properly calculate the guidelines range”). We review for abuse of discretion, “keeping in mind

that factual findings will stand unless clearly erroneous and legal conclusions will stand unless our

fresh review leads to a contrary conclusion.” Id. There is conflicting caselaw in this circuit about

whether a district court’s determination that “certain activity qualifies as ‘relevant conduct’ under

§ 1B1.3(a)(2)” constitutes a factual finding or a legal conclusion. United States v. Shafer, 199 F.3d

826, 830 (6th Cir. 1999). Compare United States v. Erwin, 67 F. App’x 876, 879–80 (6th Cir.

2003) (“Whether a defendant’s actions amount to relevant conduct under the sentencing guidelines

is a question of fact subject to a clearly erroneous standard.”), with United States v. Amerson, 886

F.3d 568, 573 (6th Cir. 2018) (“Because a district court’s relevant-conduct determination involves



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the application of law to facts, we review de novo.”). But under either standard—clear error or de

novo—we come to the same conclusion. In this case, the district court did not err.

       U.S.S.G. § 4A1.1(a) directs a district court to determine a defendant’s criminal history

score by adding points for prior sentences, including “3 points for each prior sentence of

imprisonment exceeding one year and one month.” A “prior sentence” is “any sentence previously

imposed upon adjudication of guilt . . . for conduct not part of the instant offense.”             Id.

§ 4A1.2(a)(1). “Conduct that is part of the instant offense means conduct that is relevant conduct

to the instant offense under the provision of § 1B1.3 (Relevant Conduct).” Id. § 4A1.2 cmt. n.1.

For offenses, such as the one at issue here, for which U.S.S.G. § 3D1.2(d) would require grouping

of multiple counts, “Relevant Conduct” is defined as “all acts . . . that were part of the same course

of conduct or common scheme or plan as the offense of conviction.” Id. § 1B1.3(a)(2).

       Offenses are part of a common scheme or plan if they are “substantially connected to each

other by at least one common factor, such as common victims, common accomplices, common

purpose, or similar modus operandi.” Id. § 1B1.3 cmt. n.5(B)(i). Offenses may “qualify as 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.”

Id. § 1B1.3 cmt. n.5(B)(ii). Factors to consider in determining whether the 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. “When one of the above factors

is absent, a stronger presence of at least one of the other factors is required.” Id. Caballero-Lazo

bears the burden of proving that his prior offense and the instant offense are part of a common

scheme or plan or the same course of conduct. See United States v. Horn, 355 F.3d 610, 614 (6th

Cir. 2004).



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       Caballero-Lazo offers several reasons why the cocaine possession offense and the

methamphetamine distribution conspiracy were part of a “common scheme or plan” or “same

course of conduct.” He first argues that the purpose of both offenses was common or similar, see

U.S.S.G. § 1B1.3 cmt. n.5(B)(i) & (ii)—that is, both involved the sale of narcotics. But our

caselaw cautions against looking at the offenses in such broad, generic terms. See Amerson, 886

F.3d at 577 (“When considering the similarity factor, the conduct should not be considered at a

level of generality that would render worthless the relevant conduct analysis.” (quoting United

States v. Hill, 79 F.3d 1477, 1483 (6th Cir. 1996))). The district court did not err in concluding

that these offenses bore little similarity: one involved the possession of a small amount of cocaine,

while the other involved an expansive conspiracy to distribute large amounts of methamphetamine

to other dealers. See United States v. Collins, 600 F. App’x 433, 438 (6th Cir. 2015) (concluding

that the defendant’s state conviction for possession of heroin was not related to his federal

conviction for conspiracy to distribute a large amount of heroin even though the possession

conviction occurred while the conspiracy was ongoing). The cases cited by Caballero-Lazo do not

stand for such a broad understanding of common or similar purpose. See, e.g., United States v.

Frias, 641 F. App’x 574, 578 (7th Cir. 2016) (“The mere fact that Frias’s conduct involved ‘the

sale of narcotics’ is insufficient to find that conduct relevant for sentencing.”).

       Caballero-Lazo attempts to find other connections between the offenses. He argues that

his “co-conspirators . . . regularly travel[ed] to Georgia to secure narcotics from [him] as part of

the conspiracy conduct” and that “[t]he source of supply for both the cocaine and the

methamphetamine was from Marietta, Georgia.” But even if both assertions are true, the district

court did not err in concluding that neither shows that the 2016 Georgia possession of cocaine




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No. 18-6283,United States v. Caballero-Lazo


offense was ever part of the conspiracy to distribute methamphetamine in Kentucky. 1 Nothing in

the indictment or plea agreement references the distribution of cocaine as part of the conspiracy,

and the statements of Caballero-Lazo’s numerous co-conspirators in the PSR say nothing about

cocaine.

       Finally, Caballero-Lazo argues that the offenses were close in time.          It is true that

Caballero-Lazo’s arrest for possession of cocaine occurred during the period that he was also

involved in the methamphetamine conspiracy. But his involvement in the conspiracy spanned

more than a year, while he was charged with possessing cocaine on a single day. The district court

did not err in concluding that this temporal overlap alone was insufficient to establish that the

offenses were part of the same course of conduct or common scheme or plan. We have adopted

similar reasoning elsewhere. See United States v. Escobar, 992 F.2d 87, 90 (6th Cir. 1993) (“We

can think of no justification for concluding that any cocaine possession by Escobar during the

three-year time span of his criminal enterprise must automatically be considered as having been

committed by him as part of or in furtherance of his criminal enterprise.”).




1
  To the extent Caballero-Lazo argues that the Probation Office found an earlier, November 2013
offense involving the possession of cocaine to be “related” to the instant offense for purposes of
calculating his criminal history, thereby rendering the 2016 cocaine offense “related” as well, this
argument is misleading. The Probation Office explained in the PSR that the only portion of the
November 2013 offense it “considered part of the instant offense” was Caballero-Lazo’s
possession of methamphetamine with intent to distribute. As for the count in the November 2013
indictment that charged Caballero-Lazo with possession of cocaine with intent to distribute, the
Probation Office explained that this conduct was “not considered part of the instant offense.”


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No. 18-6283,United States v. Caballero-Lazo


       In sum, Caballero-Lazo has failed to meet his burden of showing that his cocaine offense

was “part of the instant offense”—conspiracy to distribute methamphetamine. Accordingly, the

district court did not err by scoring 3 criminal history points for Caballero-Lazo’s conviction for

possession of cocaine.

                                              ***

       We AFFIRM Caballero-Lazo’s sentence.




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