                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-10883         ELEVENTH CIRCUIT
                                   Non-Argument Calendar      OCTOBER 1, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                            D.C. Docket No. 1:08-cr-00371-CG-B-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                               Plaintiff - Appellee,

                                            versus

JAMES BODY,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

                          Appeal from the United States District Court
                             for the Southern District of Alabama
                                 ________________________

                                      (October 1, 2010)

Before BLACK, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         James Body appeals his 136-month sentence for conspiring to possess

cocaine with intent to distribute. The primary question on appeal is whether the
district court clearly erred by finding that Body’s drug transactions in 2001 and

2002 were relevant conduct in calculating his guideline sentencing range. We find

clear error and therefore vacate Body’s sentence and remand for re-sentencing.

I. Background

      In September 2008, after a traffic stop, a police officer found James Body in

possession of approximately five ounces of powder cocaine. Body pleaded guilty

to conspiring to distribute cocaine between September 1, 2008 and September 19,

2008. The presentencing investigation report (PSI), relying primarily on Body’s

relevant conduct, held him accountable for 64 kilograms of powder cocaine, 1

ounce of crack cocaine, and 240 pounds of marijuana. Body objected to this drug-

quantity attribution.

      At the sentencing hearing, the government called two witnesses to support

this drug-quantity estimate. First, Darnell Watkins testified that Body had

purchased approximately eight kilograms of cocaine from him for distribution in

2001 and 2002. Second, Tuwanne Lucas testified that he had purchased one

ounce of crack cocaine from Body on “maybe five or six” occasions in 2002.

      Body objected that these 2001-2002 drug transactions were not relevant

conduct to his current offense and therefore should not be attributed to him for the

purposes of sentencing. He argued that there was no connection between his

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current offense and the prior drug transactions because he had been in prison

between 2003 and 2007 and had obtained a job after his 2007 release from prison.

Body contended that an appropriate sentence would be closer to the “initial report

that came out without any relevant conduct . . . [which recommended] a 37-month

to 50-something month sentence.” Body also argued that both witnesses were

unreliable because they both testified as part of cooperation agreements with

government.1

       Although the district court acknowledged Body’s time in state prison from

2003 to 2007, it nevertheless found that his activities in 2001 and 2002 were

relevant conduct for sentencing purposes. Specifically, the court explained that

Body’s current offense was “the same course of conduct that he was doing before

he went to prison on the state conviction [in 1995] and when he got out again [in

2000].” Relying solely on Watkins’s and Lucas’s testimony from the hearing, the

district court found that Body sold a total of five ounces of crack cocaine to Lucas

and approximately eight and one-half kilograms of cocaine to Watkins. The court

then converted these amounts to marijuana equivalencies and calculated a

guideline range of 135 to 168 months’ imprisonment. The court ultimately



       1
        In addition, Watkins admitted on cross-examination that he blamed Body’s son for his
own federal charges.

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imposed a low-end guideline sentence of 136 months’ imprisonment.



II. Discussion

      Body challenges the district court’s factual finding that his 2001-2002 drug

transactions were part of the same “course of conduct” as his offense of

conviction. See U.S.S.G. § 1B1.3(a)(2). In particular, he argues that the district

court clearly erred because his conduct between 2001 and 2002 was temporally

remote from his instant offense and because the presence of cocaine was the only

similarity between the 2001-2002 conduct and the instant offense.

      We review the district court’s factual findings for clear error. United States

v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). A factual finding is clearly

erroneous only if, after reviewing all of the evidence, we are left with the “definite

and firm conviction that a mistake has been committed.” United States v.

Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004). A district court’s factual

findings in support of a sentencing calculation, however, must be based on reliable

and specific evidence and cannot be based on speculation. United States v.

Cataldo, 171 F.3d 1316, 1321-22 (11th Cir. 1999).

      Relevant conduct under the Sentencing Guidelines includes all acts

committed by the defendant “that were part of the same course of conduct.”

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U.S.S.G. § 1B1.3(a)(2). “Factors that are appropriate to the determination of

whether offenses are sufficiently connected or related to each other to be

considered as 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., comment. (n.9(B)). When one of the above factors is

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

      Here, the only apparent similarity between Body’s earlier drug transactions

and the instant offense was the distribution of cocaine. This level of similarity,

however, is not sufficient. See United States v. Gomez, 164 F.3d 1354, 1356 (“If

the course of conduct . . . is merely [characterized as] the distribution of cocaine,

then the sale to [a party not included in the charged offense] would certainly be

part of that course of conduct. This, however, seems too broad of a

characterization.”). In fact, there was no evidence that Body’s 2001-2002 conduct

had “distinctive similarities” to the instant offense, such as a similar modus

operandi or the involvement of the same parties. United States v. Maxwell, 34

F.3d 1006, 1011 (11th Cir. 1994). Because the level of similarity is not sufficient,

we therefore must find a “stronger presence” of at least one of the other two

factors. See U.S.S.G. § 1B1.3(a)(2), comment. (n.9(B)). Neither factor can be

found in a stronger guise. From a temporal perspective, Body’s drug transactions

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took place at least six years prior to his instant offense. Furthermore, there is no

evidence that Body’s drug transactions took place with significant regularity

between 2001 and 2008.

      Thus, Body’s earlier conduct from 2001 and 2002 can be easily

distinguished from his instant conviction. United States v. Gomez, 164 F.3d 1354,

1357 (11th Cir. 1999) (“when an act of misconduct can be easily distinguished

from the charged offense, a separate charge is required.”); see also U.S.S.G.

§ 1B1.3(a)(2), comment. (backg’d.) (stating that relevant conduct often “involve[s]

a pattern of misconduct that cannot readily be broken into discrete, identifiable

units.”). Accordingly, we VACATE Body’s sentence and REMAND for re-

sentencing.




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