        11-5289
        United States v. Mack


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
     TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
     AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
     COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
     FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
     OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
     PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
     NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals
 2      for the Second Circuit, held at the Thurgood Marshall United
 3      States Courthouse, 40 Foley Square, in the City of New York,
 4      on the 14th day of May, two thousand thirteen.
 5
 6      PRESENT:
 7               DENNIS JACOBS,
 8                    Chief Judge,
 9               ROSEMARY S. POOLER,
10               RICHARD C. WESLEY,
11                    Circuit Judges.
12      _____________________________________
13
14      UNITED STATES OF AMERICA,
15
16                                Appellee,
17
18                   v.                             11-5289
19
20      JAMES MACK, AKA KIKO,
21
22                  Defendant-Appellant.
23      _____________________________________
24
25
26      FOR APPELLEE:                  ELIZABETH S. RIKER (Carla B.
27                                     Freedman, on the brief) for
28                                     Richard S. Hartunian, United
29                                     States Attorney for the Northern
30                                     District of New York, Syracuse,
31                                     NY.
 1   FOR DEFENDANT-APPELLANT:   BRIAN SHEPPARD, Law Office of
 2                              Brian Sheppard, New Hyde Park,
 3                              NY.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Northern District of New York (Hurd, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
 9   AND DECREED that the judgment is AFFIRMED.
10
11        Defendant-appellant James Mack appeals from the
12   district court’s sentence of 77 months of incarceration for
13   possession with intent to distribute crack. We assume the
14   parties’ familiarity with the underlying facts, the
15   procedural history of the case, and the issues on appeal.
16
17        Mack argues that it was error under Sentencing
18   Guidelines Section 1B1.3 to consider as relevant conduct his
19   attempt to purchase more than 500 grams of cocaine 14 months
20   prior to his crack arrest. Mack did not present this
21   argument to the district court, and it is therefore reviewed
22   for plain error. United States v. Cossey, 632 F.3d 82, 86-
23   87 (2d Cir. 2011). “To establish plain error, the Court
24   must find (1) an error, (2) that is plain, (3) that affects
25   substantial rights.” United States v. Doe, 297 F.3d 76, 82
26   (2d Cir. 2002).
27
28        “Factors that are appropriate to the determination of
29   whether offenses are sufficiently connected or related to
30   each other to be considered as part of the same course of
31   conduct include the degree of similarity of the offenses,
32   the regularity (repetitions) of the offenses, and the time
33   interval between the offenses. When one of the above
34   factors is absent, a stronger presence of at least one of
35   the other factors is required.” U.S.S.G. § 1B1.3 cmt. 9(B).
36
37        At sentencing, the district court found, in conclusory
38   fashion, that the allegations involving the cocaine charge
39   “are connected to and part of the same type of conduct that
40   the defendant was arrested for . . . [i]t is clear that it
41   is the relevant conduct that must be considered.”
42   Sentencing Hr’g Tr. at 12-13, ECF No. 78.
43
44

                                  2
 1        Viewing the cocaine and crack incidents alone, it is
 2   difficult to see how the court could reasonably have found
 3   either sufficient proximity or regularity to support a
 4   relevant conduct enhancement. The 14-month gap exceeds the
 5   proximity parameters referenced in United States v.
 6   Santiago, 906 F.2d 867, 872 (2d Cir. 1990) (“8-14 months”
 7   was “considerably longer than the periods involved in most
 8   of our prior cases construing the Guidelines”). And it is
 9   hard to detect “regularity” in the two isolated incidents.
10   While the similarity factor is supported by Mack’s
11   possession with intent to distribute two related narcotics,
12   see United States v. Burnett, 968 F.2d 278, 280 (2d Cir.
13   1992), it is an insufficient similarity to compensate for
14   the absence of the other two factors, see U.S.S.G. § 1B1.3
15   cmt. 9(B).
16
17        Nevertheless, there was no plain error in this case.
18   The district court could have referenced Mack’s glaring
19   admission that “[h]e started selling drugs when he was
20   younger with neighborhood friends” and “typically sold
21   eightball to one-fourth ounce quantities of crack [earning]
22   about $200 per week.” Pre-Sentence Report ¶ 17, ECF No. 59
23   (the district court adopted the findings of the PSR during
24   the sentencing colloquy). Such admissions to probation
25   officers may be used to estimate drug trafficking history
26   for purposes of determining relevant conduct. See United
27   States v. Colon, 961 F.2d 41, 43 (2d Cir. 1992). Mack’s
28   admission clearly supports the requisite U.S.S.G. § 1B1.3
29   regularity factor missing from the district court’s relevant
30   conduct analysis. For that reason, the relevant conduct
31   enhancement was not plain error.
32
33        We have considered all of Mack’s remaining arguments
34   and find them to be without merit. Accordingly, the
35   judgment of the district court is hereby AFFIRMED.
36
37                              FOR THE COURT:
38                              Catherine O’Hagan Wolfe, Clerk




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