                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-16876                   JUNE 13, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                     D. C. Docket No. 05-00065-CR-4

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

ARTHUR LEE COLEMAN,
a.k.a. Pops,

                                                     Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                              (June 13, 2006)


Before DUBINA, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Arthur Lee Coleman appeals his sentence imposed after pleading guilty to

distribution of five grams or more of cocaine base, in violation of 21 U.S.C.

§841(a)(1). Coleman asserts the district court erred by: (1) enhancing his

applicable sentencing range based on facts neither admitted by him nor found by a

jury in violation of United States v. Booker, 125 S. Ct. 738 (2005); (2) considering

the drugs seized from his car and residence on March 22, 2005 in calculating his

base offense level because the evidence seized did not constitute relevant conduct

under U.S.S.G. § 1B1.3; and (3) holding him accountable for 229.7 grams of

cocaine hydrochloride, which was converted into the 2.297 grams of cocaine base,

because cocaine hydrochloride is not cocaine base. We discuss each issue in turn,

and find no error.

                                 I. DISCUSSION

A. Error under Booker

      When a defendant raises a constitutional objection to enhancements of his

sentence in the district court, we review the sentence de novo. United States v. Paz,

405 F.3d 946, 948 (11th Cir. 2005). We review challenges to the district court’s

consultation of the Guidelines as we did before Booker–the district court’s

interpretation of the Guidelines is subject to de novo review, while its factual




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findings must be accepted unless clearly erroneous. United States v. Ellis, 419

F.3d 1189, 1192 (11th Cir. 2005).

      After Booker, “the use of extra-verdict enhancements in an advisory

guidelines system is not unconstitutional.” United States v. Chau, 426 F.3d 1318,

1323 (11th Cir. 2005) (emphasis added) (quotations and citation omitted). The

court may find facts not found by a jury nor admitted by the defendant, and use

them in formulating a sentence, as long as it applies the Guidelines as advisory. Id.

at 1324. In United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005), cert.

denied 126 S. Ct. 432 (2005), we stated “[o]ur Circuit's precedent uniformly states,

[r]elevant conduct of which a defendant was acquitted nonetheless may be taken

into account in sentencing for the offense of conviction, as long as the government

proves the acquitted conduct relied upon by a preponderance of the evidence.”

(quotations and citations omitted). We explained further that:

      Booker does not suggest that the consideration of acquitted conduct
      violates the Sixth Amendment as long as the judge does not impose a
      sentence that exceeds what is authorized by the jury verdict. Thus,
      nothing in Booker erodes our binding precedent. Booker suggests that
      sentencing judges can continue to consider relevant acquitted conduct
      when applying the Guidelines in an advisory manner, [f]or when a
      trial judge exercises his discretion to select a specific sentence within
      a defined range, the defendant has no right to a jury determination of
      the facts that the judge deems relevant.

Id. at 1304-05 (quotations, footnote, and citations omitted).



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      Here, the district court used conduct to which Coleman did not plead guilty

in arriving at his base offense level. The district court, however, noted the

Guidelines were only advisory in nature, thereby avoiding any Booker error.

Moreover, the record reveals the Government proved by a preponderance of the

evidence that Coleman was responsible for additional quantities of cocaine

hydrochloride and cocaine base found at his residence and car during the March

22, 2005, search. Therefore, the district court did not commit clear error.

B. Relevant conduct

      The Guidelines provide that relevant conduct shall be taken into account in

calculating the defendant’s base offense level. U.S.S.G. § 1B1.3. Relevant

conduct includes “all acts and omissions . . . that were part of the same course of

conduct or common scheme or plan as the offense of conviction.” Id.

§ 1B1.3(a)(2). The commentary explains that “ [a]pplication of this provision does

not require the defendant, in fact, to have been convicted of multiple counts.” Id.

§ 1B1.3, comment. (n.3). The commentary provides an example of a drug case

where a defendant sells 10, 15, and 20 grams of cocaine on three occasions as part

of the same course of conduct or common scheme or plan. See id. In that case, the

defendant would be responsible for 45 grams of cocaine even if he were convicted

of a single count charging only one of the sales. See id.



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      For two or more offenses to constitute part of common scheme or plan, they

must be substantially connected to each other by at least one common factor, such

as common purpose. Id. § 1B1.3, comment. (n.9(A)). In relevant part, U.S.S.G.

§ 1B1.3, comment. n. 9(B) provides:

             Offenses that do not qualify as part of a common scheme or
      plan may nonetheless 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 a part of a single episode, spree, or
      ongoing series of offenses. 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.

      The district court did not clearly err by attributing to Coleman as relevant

conduct the drugs seized on March 22, 2005. Contrary to Coleman’s assertion,

even though he pleaded only to Count 1, the Guidelines do not require the

defendant be convicted of multiple counts for § 1B1.3 to be applicable. Further,

Coleman’s January 27, 2005, and March 22, 2005, offenses reflect the same course

of conduct. First, the record reveals that Coleman distributed crack cocaine to the

confidential informant (CI) on January 27, 2005, and less than two months later he

possessed items consistent with drug distribution, such us latex gloves, copper

scouring pads, razor blades, small plastic bags, and a large amount of money.

Second, both offenses involved similar types and quantities of drugs. On January

                                          5
27, 2005, Coleman sold 17.8 grams of cocaine base, while on March 22, 2005,

Coleman possessed 15.1 grams of crack cocaine and 229.9 grams of powder

cocaine, which can be converted into crack cocaine. Third, during the search, the

officers found $260 of the “buy” money the CI used to purchase crack from

Coleman mixed in a large amount of money recovered from Coleman’s bedroom.

Thus, the evidence indicates both offenses were sufficiently connected to each

other as to warrant the conclusion they were part of an ongoing series of offenses.

Accordingly, the district court did not clearly err by attributing the drugs seized on

March 22, 2005, to Coleman.

C. Conversion Ratio

         Because Coleman raises this issue for the first time on appeal, we review it

for plain error. See United States v. Barfield, 396 F.3d 1144, 1150 (11th Cir.

2005). We have found the 100:1 conversion ratio between powder and crack

cocaine appropriate. United States v. Byse, 28 F.3d 1165, 1171 n.9 (11th Cir.

1994).

         The district court did not plainly err by determining that 229.7 grams seized

from the search of Coleman’s residence and vehicle on March 22, 2005, was

equivalent to 2.297 grams of cocaine base. The conversion ratio 100:1 for powder




                                            6
cocaine to crack cocaine is contemplated by the Guidelines and we have found that

ratio appropriate.

                                II. CONCLUSION

      The district court did not err in enhancing Coleman’s sentencing range based

on facts not admitted by him or found by a jury, considering the drugs seized from

his car and residence on March 22, 2005 in calculating his base offense level, or

holding him accountable for 2.297 grams of cocaine base. Thus, we affirm

Coleman’s sentence.

      AFFIRMED.




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