                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                       December 2, 2005

                                                              Charles R. Fulbruge III
                                                                      Clerk
                              No. 04-50912


                        UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                 versus

                        BRADLEY SCOTT WROBLEWSKI,

                                                    Defendant-Appellant.



           Appeal from the United States District Court
                 for the Western District of Texas
                       (3:03-CR-1958-ALL-KC)


Before JOLLY, BEAM,* and BARKSDALE, Circuit Judges.

PER CURIAM:**

     Bradley    Scott    Wroblewski   pleaded   guilty   to    possessing

marijuana with intent to distribute. Primarily at issue is whether

the district court clearly erred in finding Wroblewski’s prior

marijuana trafficking constituted relevant conduct for sentencing

purposes. CONVICTION AFFIRMED; REMANDED for RESENTENCING, pursuant

to United States v. Booker, 125 S. Ct. 738, 756 (2005) (holding

that any fact, other than a prior conviction, needed to support a


     *
      Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
     **
       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this opinion should not be published and is not precedent except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.
sentence exceeding the maximum authorized by the facts, must be

based on facts either admitted by the defendant or proved to a

jury).

                                    I.

      On 3 October 2003, Wroblewski entered the United States Border

Patrol Checkpoint in Desert Haven, Texas, in a rental truck.            He

consented to a non-intrusive canine sniff of his truck.          A canine

alerted Border Patrol Agents to a controlled substance; they

discovered approximately 675 kilograms of marijuana.          In addition,

Wroblewski provided Drug Enforcement Agency Agents with a detailed

explanation of his involvement since 1999 or 2000 in a drug-

trafficking organization with Ricardo Estrada and stated that he

was   not   the   only   Estrada   brother   for    whom   Wroblewski   had

distributed marijuana.

      From 1997 to 1998, Wroblewski drove between 12 and 15 loads of

marijuana for Victor Estrada, Ricardo Estrada’s brother.          This had

developed   after   another   Estrada    brother,   Sergio   Estrada,   had

approached Wroblewski in 1997 and asked if he would like to make

money by driving to El Paso, Texas, and returning to Florida with

a load of marijuana.        Sergio Estrada told Wroblewski that his

brother, Victor Estrada, would pay Wroblewski $500 to drive to El

Paso and another $5,000 for transporting the marijuana back to

Florida.

      Wroblewski outlined his routine with Victor Estrada: he drove

through the Desert Haven Border Patrol checkpoint unloaded, while

                                     2
Victor Estrada drove his vehicle, loaded with marijuana, past the

checkpoint on a dirt road.            They would meet and reload the

marijuana into Wroblewski’s vehicle.             Wroblewski then drove the

loads to various destinations:         Orlando, Florida; Oklahoma City,

Oklahoma;    Chicago,    Illinois;    Des      Moines,    Iowa;    Kansas     City,

Missouri; Tulsa, Oklahoma; and Wichita, Kansas.                The initial loads

contained 200 pounds of marijuana and increased in weight after

Wroblewski successfully transported several loads.

     On a trip in 1998, Wroblewski kept approximately 41 kilograms

from a load; sold that amount; and kept the proceeds.                 After this

incident, Victor Estrada did not ask Wroblewski to transport

marijuana.

     Sometime in 1999, Wroblewski contacted Victor Estrada in an

attempt to resume their trafficking relationship; he declined.

Victor Estrada’s younger brother, Ricardo Estrada, soon contacted

Wroblewski, however, and showed an interest in his services.

Wroblewski   and   Ricardo   Estrada      formed    a    relationship    whereby

Wroblewski would transport various quantities of marijuana (from

600 to 1,300 pounds) from El Paso to Chicago.

     Wroblewski    was   indicted     for      knowingly   and     intentionally

possessing, with intent to distribute, 100 kilograms or more of

marijuana,    in   violation     of       21    U.S.C.     §      841(a)(1)    and

(b)(1)(B)(vii).    He pleaded guilty in early 2004.

     In addition to the sentence being based on the marijuana in

the truck when he was stopped on 3 October 2003 (approximately 675

                                      3
kilograms), Wroblewski’s presentence investigation report (PSR)

recommended, as relevant conduct, holding Wroblewski accountable

for the approximately 1400 kilograms (200 pounds per load times 12

to 15 loads) of marijuana he transported for Victor Estrada in 1997

and 1998 as part of the same drug trafficking organization.                These

amounts combined for a total of approximately 2,075 kilograms of

marijuana. Accordingly, the recommended base offense level was 32,

based on possession of, with intent to distribute, between 1,000

and 3,000 kilograms of marijuana.                (Had it included only the

marijuana for the charged offense, the base offense level would

have been 28.)      U.S.S.G. § 2D1.1(c) (2003).        Because of reductions

to that level, the sentencing range was 51 to 63 months.

      Prior   to    sentencing,    Wroblewski       objected   to    his   prior

trafficking being relevant conduct; at sentencing, he challenged

the speculative      nature   of   using    prior    conduct   to   assess   his

sentence   and     objected   under   the   Supreme     Court’s     then-recent

decision in Blakely v. Washington, 124 S. Ct. 2531, 2536 (2004)

(holding that any fact, other than a prior conviction, used to

increase a defendant’s penalty beyond the statutory maximum must be

submitted to a jury and proved beyond a reasonable doubt to avoid

a   Sixth Amendment     violation).        The   district   court    imposed   a

sentence of, inter alia, 55 months incarceration.

      This initial sentence was vacated; a second sentencing hearing

was held to discuss the impact of Blakely. Wroblewski’s counsel


                                      4
also   discussed   the   use   of   Wroblewski’s   prior   trafficking    as

relevant conduct.    These objections were overruled, and Wroblewski

was sentenced, inter alia, to the sentencing-range minimum of 51

months incarceration.

                                     II.

       Wroblewski raises two issues.       He claims Booker error because

he was sentenced under a mandatory-Guidelines scheme and contests

the use of his prior marijuana trafficking as relevant conduct.

                                     A.

       Wroblewski’s Blakely objection preserves Booker error. United

States v. Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005).                 The

Government concedes such error.

       Wroblewski maintained his sentence was enhanced improperly by

facts to which he had not pleaded guilty.          The district court was

then bound by mandatory Guidelines.          Later, Booker held they are

only advisory.     125 S. Ct. at 757.

       Under our post-Booker precedent, we must remand unless the

Government can prove this error was harmless under Federal Rule of

Criminal Procedure 52(a).       United States v. Mares, 402 F.3d 511,

520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).           Because

the Government concedes the error was not harmless, we remand for

resentencing.

                                     B.



                                      5
     For purposes of the remand, the district court did not clearly

err in using Wroblewski’s prior trafficking as relevant conduct.

Its application of the Guidelines is reviewed as it was pre-Booker.

United States v. Villegas, 404 F.3d 355, 361-62 & n.7 (5th Cir.

2005). The court’s interpretation of the Guidelines is reviewed de

novo; its factual findings, only for clear error. United States v.

Wall, 180 F.3d 641, 644 (5th Cir. 1999).

     As noted, the relevant-conduct finding is reviewed for clear

error.   United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000);

Wall, 180 F.3d at 644.        A finding is clearly erroneous only if,

based on our review of the record, we are “left with the definite

and firm conviction that a mistake has been committed”.               In re

Dennis, 330 F.3d 696, 701 (5th Cir. 2003) (quoting Hibernia Nat’l

Bank v. Perez, 954 F.2d 1026, 1027 (5th Cir. 1992)).              Along this

line, a district court need only find by a preponderance of the

evidence that a defendant committed unadjudicated relevant conduct.

United States v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993); United

States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).           Moreover, the

district   court   is   not   limited   to   information   that    would   be

admissible in a criminal trial.         United States v. Vital, 68 F.3d

114, 120 (5th Cir. 1995).

     In that regard, information in a PSR “generally bear[s]

indicia of reliability sufficient to permit reliance thereon at

sentencing”.   United States v. Gracia, 983 F.2d 625, 629 (5th Cir.

                                    6
1993).   District courts have significant discretion in evaluating

a PSR’s reliability.       United States v. Young, 981 F.2d 180, 185

(5th Cir. 1992), cert. denied, 508 U.S. 980 (1993).            To challenge

the information contained in a PSR, the defendant “bears the burden

of   demonstrating   its   untruth,       inaccuracy,   or   unreliability”.

Gracia, 983 F.2d at 630.     If a defendant fails to present evidence

to rebut the PSR’s findings, the district court may rely on the PSR

without further inquiry or discussion.           Id. at 629-30; Vital, 68

F.3d at 120; Mir, 919 F.2d at 943.             Unlike a PSR, the unsworn

assertions of defense counsel are not sufficiently reliable for the

district court to consider in making its factual findings.            United

States v. Chavez, 947 F.2d 742, 746 (5th Cir. 1991).

      In calculating the offense level, district courts are to

consider other, uncharged offenses if they constitute “relevant

conduct” related to the charged offense. U.S.S.G. § 1B1.3.              Our

court applies this concept broadly, “[p]articularly in drug cases”.

Bryant, 991 F.2d at 177.        Relevant conduct includes “acts and

omissions ... that were part of the same course of conduct or

common scheme or plan as the offense of conviction”. U.S.S.G. §

1B1.3(a)(2) (emphasis added); United States v. Sanders, 343 F.3d

511, 530 (5th Cir. 2003) (citing § 1B1.3(a)(2)).

      The district court did not expressly find that Wroblewski’s

marijuana trafficking for Victor Estrada was part of a “common

scheme or plan”; however, this finding was implicit in the court’s

                                      7
conclusion that it constituted relevant conduct.                    See Vital, 68

F.3d at 118.      Therefore, Wroblewski must show this finding was

clearly erroneous.     Ocana, 204 F.3d at 589. (The Government claims

Wroblewski’s prior trafficking was both a “common scheme or plan”

and part of the “same course of conduct”; because they are in the

disjunctive, an affirmative finding on one basis obviates deciding

the other.)

     For multiple offenses to comprise a “common scheme or plan”,

“they must be substantially connected to each other by at least one

common factor, such as common victims, common accomplices, common

purpose, or similar modus operandi”.              U.S.S.G. § 1B1.3 cmt. n.9(A)

(emphasis added); Sanders, 343 F.3d at 530 (citing § 1B1.3 cmt.

n.9(A)).    The common-victims factor is not in play; other factors

are discussed infra.

     “Common      accomplices”    requires          only    that     the    alleged

accomplices know and work with one another at the time of the

earlier offense.     See Wall, 180 F.3d at 645.            For example, in Wall,

this factor was not satisfied when the alleged accomplices did not

know one another at the time of the earlier incident for which the

defendant   was    convicted;    the       later    incident       for   which   the

defendant’s    alleged   accomplice         was     convicted      could   not   be

attributed to him. Id.

     The “common purpose” factor does not require that the purpose

be defined narrowly.     It has been met, for example, with the common

                                       8
purpose of “the illegal removal and sale of timber” belonging to

others.    United States v. Anderson, 174 F.3d 515, 527 (5th Cir.

1999).

     A similar modus operandi exists where multiple offenses were

committed in a similar manner.        The modus operandi in Anderson was

“removing timber from land belonging to absentee landowners who

would be less likely to discover the removal”.                174 F.3d at 527.

For this factor, other similarities may be suggestive of relevant

conduct.   For example, the “source and type of drug” are relevant.

United States v. Bethley, 973 F.2d 396, 401 (5th Cir. 1992) (noting

that all cocaine was purchased from the same individual; and that

the quantities the defendant sold were always measured in ounces);

see United States v. Moore, 927 F.2d 825, 827-28 (5th Cir, 1991)

(noting    the     defendant’s       continuing          enterprise        involving

amphetamines).

     Unlike   a    “same   course    of       conduct”   finding,     no   temporal

requirement exists for finding a “common scheme”.               Moore, 927 F.2d

at 828.    A period of one or two years’ inactivity is not a bar to

finding such a scheme.       See id. (“There is no separate statute of

limitations      beyond    which    relevant      conduct    suddenly        becomes

irrelevant.”); United States v. Robins, 978 F.2d 881, 890 (5th Cir.

1992) (“[E]ven assuming this hiatus [of one and a half years]

occurred, it was inadequate in duration to make the previous

conduct irrelevant for sentencing purposes”.).

                                          9
     As noted, only one common factor must exist for finding a

common scheme for Wroblewski’s drug trafficking.            U.S.S.G. § 1B1.3

cmt. n.9(A).   In this instance, however, it would not be clearly

erroneous to find that each of the above-described factors exist.

     Concerning common accomplices, Wroblewski became acquainted in

1997 with both Victor and Sergio Estrada; Sergio Estrada provided

Wroblewski’s initial contact with the organization.             Although no

evidence suggests Wroblewski met Ricardo Estrada prior to their

initial negotiations in 1999 or 2000, Wroblewksi can work for the

organization without a full awareness of its structure and the

roles of each Estrada brother.      Cf. United States v. Westbrook, 119

F.3d 1176, 1189 (5th Cir. 1997) (explaining, in the context of a

conspiracy conviction, that a defendant “need not know all the

details of the unlawful enterprise ... so long as he knowingly

participates in some fashion in [its] larger objectives”), cert.

denied, 522 U.S. 1119 (1998).

     For this factor, it appears that one, or both, of the other

Estrada brothers served as accomplices for Wroblewski’s work for

Ricardo Estrada.     In 1997, Sergio Estrada acted as a conduit for

Wroblewski to begin working with Sergio Estrada’s brother, Victor

Estrada.    Wroblewski’s     initial     contact   from    Ricardo   Estrada

occurred   shortly   after   he   contacted   Victor      Estrada   in   1999,

requesting resumption of the trafficking.          It can be inferred from

this sequence of events that, when Wroblewski attempted to resume


                                    10
working with Victor Estrada, he informed one or both of his

brothers of Wroblewksi’s interest, because Ricardo Estrada decided

to use Wroblewski’s services. Thus, Wroblewski’s activities shared

common accomplices; he worked for two brothers within the Estrada

family’s drug trafficking organization.

     For a common purpose between Wroblewski’s trafficking for

Victor Estrada and for Ricardo Estrada, Wroblewski possessed for

each brother the criminal purpose of smuggling a large quantity of

marijuana from the border city of El Paso to large, interior United

States cities.    Wroblewski’s activities for Victor and Ricardo

Estrada were not identical, but their common purpose withstands

clear-error review under this court’s precedent. See Anderson, 174

F.3d at 527.

     Finally, regarding a similar modus operandi for Wroblewski’s

activities for the Estrada brothers, several similarities exist

between Wroblewski’s drug trafficking trips for them.     The trips

originated in El Paso; Wroblewski drove and traveled alone; the

trips typically had similar mid-Western destinations; both brothers

paid Wroblewski thousands of dollars on a per-trip basis; each of

the trips involved the same controlled substance, marijuana; and

each trip involved large quantities (hundreds of pounds) of it.

     Also key to the relevant-conduct finding’s not being clearly

erroneous is Wroblewski’s failure to offer any evidence rebutting

the PSR.   Gracia, 983 F.2d at 629-30.   For example, at sentencing,


                                 11
Wroblewski could have tried to contradict the existence of a modus

operandi   by   asserting   that     he   used   different   modes   of

transportation for the two brothers.       See Wall, 180 F.3d at 645.

Because Wroblewski failed to make this, or any other, showing, the

district court’s reliance on the PSR was not erroneous.      Vital, 68

F.3d at 120.

                                   III.

     For the foregoing reasons, the conviction is AFFIRMED; this

matter is REMANDED for resentencing.



                 CONVICTION AFFIRMED; REMANDED FOR RESENTENCING




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