     Case: 14-30270      Document: 00512792174         Page: 1    Date Filed: 10/03/2014




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

                                                                                FILED
                                                                            October 3, 2014
                                    No. 14-30270
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESSIE ALFRED,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:10-CR-77-1


Before DeMOSS, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jessie Alfred appeals the sentence imposed after he pleaded guilty to
conspiring to possess with intent to distribute cocaine and cocaine base (crack).
He contends that his 1997 state conviction for crack cocaine possession was
wrongly used to increase his criminal history score because the state offense
was part of the federal offense.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-30270     Document: 00512792174     Page: 2   Date Filed: 10/03/2014


                                  No. 14-30270

      The state offense could properly be treated as criminal history if the
criminal conduct was “not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1);
see also § 4A1.1(a), (d), & comment. (n.4). The critical inquiry is whether the
prior conduct is “relevant conduct” as defined by § 1B1.3 of the Guidelines.
United States v. Yerena-Magana, 478 F.3d 683, 687 88 (5th Cir. 2007); see
United States v. Thomas, 973 F.2d 1152, 1158 (5th Cir. 1992).           Relevant
conduct includes conduct that was “part of the same course of conduct or
common scheme or plan as the offense of conviction.” § 1B1.3(a)(2); see United
States v. Benns, 740 F.3d 370, 373 (5th Cir. 2014).
      We review the district court’s factual finding of relevant conduct for clear
error. See United States v. Wall, 180 F.3d 641, 644 (5th Cir. 1999). “A factual
finding is not clearly erroneous as long as it is plausible in light of the record
as a whole.” United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009) (internal
quotation marks and citation omitted).
      Although Alfred’s state offense occurred within the alleged dates of the
federal conspiracy, the state offense was not relevant conduct because it
occurred prior to Alfred’s actual participation in the federal conspiracy. See
§ 1B1.3, comment. (n.2(B)) (“A defendant’s relevant conduct does not include
the conduct of members of a conspiracy prior to the defendant’s joining the
conspiracy, even if the defendant knows of that conduct.”). In addition, the
state offense involved an accomplice who was not part of the federal conspiracy,
and the state offense involved crack cocaine while Alfred’s federal sentence was
based only on powder cocaine. The district court’s finding that the state offense
was not part of the federal offense was at least plausible and thus not clearly
erroneous. See Rhine, 583 F.3d at 885; Wall, 180 F.3d at 644-45.
      The judgment is AFFIRMED.




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