                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1655
                                   ___________

United States of America,              *
                                       *
           Plaintiff - Appellant,      *
                                       * Appeal from the United States
      v.                               * District Court for the Northern
                                       * District of Iowa.
Jason M. Weiland,                      *
                                       *
           Defendant - Appellee.       *
                                  ___________

                             Submitted: December 11, 2001
                                Filed: March 25, 2002
                                 ___________

Before McMILLIAN and MURPHY, Circuit Judges, and BATTEY,1 District Judge.
                          ___________

MURPHY, Circuit Judge.

      Jason M. Weiland pled guilty to being a user of controlled substances in
possession of firearms, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2), and to
conspiracy to distribute methamphetamine, cocaine, LSD, psilocin mushrooms, and
marijuana, in violation of 21 U.S.C. § 846. The district court2 sentenced him to 80


      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
      2
        The Honorable Michael J. Melloy, then United States District Judge for the
Northern District of Iowa, now United States Circuit Judge for the Eighth Circuit
since February 27, 2002.
months imprisonment on each count, to be served concurrently. The government
appeals, arguing that Weiland's 1998 conviction for marijuana possession should
have been counted in his criminal history score rather than as relevant conduct to the
conspiracy. We affirm.

        The conspiracy to which Weiland pled was alleged to have taken place
"between about 1996 and 1999." In 1998 and 2000 Weiland was convicted of two
state drug offenses for conduct that occurred during the time frame of the conspiracy.
In 1998 he was convicted of marijuana possession resulting from a June 1997 search
of his apartment. The affidavit in support of the warrant for that search stated that a
confidential informant had seen the following in Weiland's apartment: four pounds
of cocaine powder, five ounces of methamphetamine, LSD, steroids, a digital scale,
razor blades, and baggies. The affidavit also reported the informant's statement that
he had been involved for three years in the distribution of LSD, methamphetamine,
cocaine, and marijuana and that Weiland was the source of his drugs. In their search
of Weiland's apartment, officers found small amounts of marijuana and
methamphetamine, lines of cocaine on a mirror, a hand held scale, several new plastic
vials, $1809 in cash, and firearms. Weiland was arrested and charged with possession
of cocaine, methamphetamine, and marijuana. Two of the three charges were
dismissed, and Weiland was convicted in 1998 on the marijuana charge. In the fall
of 1999, the same officer who had prepared the 1997 search warrant submitted
another application to search Weiland's residence. In the new affidavit the officer
repeated statements of the confidential informant from the 1997 affidavit and listed
the contraband seized in the earlier search. When the new warrant was executed at
Weiland's residence in October 1999, officers found methamphetamine, items used
to manufacture methamphetamine, and seven guns. Weiland was thereafter convicted
in 2000 of possession and manufacture of methamphetamine in violation of Iowa law.

      Subsequently, federal charges were brought in the Northern District of Iowa.
Weiland was indicted for violating federal firearms laws based on the guns seized by
Iowa authorities in 1999, and he was later charged by information with conspiracy to

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distribute methamphetamine, cocaine, LSD, psilocin mushrooms, and marijuana in
violation of 21 U.S.C. § 846. As part of a plea agreement, Weiland stipulated that he
had knowingly and intentionally distributed those five drugs in the Dubuque area
"between about 1996 and 1999." Weiland pled guilty to both the federal indictment
and the information, and he was sentenced under the United States Sentencing
Guidelines (USSG).

       The presentence investigation report had calculated Weiland's total offense
level at 27 with a criminal history category of I. The probation officer did not assign
any criminal history points for Weiland's 1998 or 2000 Iowa convictions because the
defendant's conduct in each case was "directly related to the instant offense."3
Weiland did receive one criminal history point for a July 14, 2000 Wisconsin
conviction for possession with intent to deliver amphetamine where the conduct was
alleged to have occurred at a time after the charged conspiracy. Weiland's resulting
guidelines range was computed by the court to be 70 to 87 months. At sentencing,
the district court found that Weiland's 1998 conviction was relevant conduct because
it was within the time frame of the charged conspiracy, the probable cause evidence
used to support the 1997 search was later used as part of the evidence for the
conspiracy, and the possession charge involved one of the drugs alleged to be
distributed by the conspiracy. The district court sentenced Weiland to concurrent 80
month terms.

      On its appeal the government argues that the district court erred by not
counting the 1998 Iowa marijuana conviction as part of Weiland's criminal history.
It complains that treating this offense as relevant conduct gave Weiland three fewer
criminal history points than he deserved. It believes he should have received one
additional point for that offense and two for engaging in the conspiracy while on


      3
       The government did not object to the probation officer's treatment of
Weiland's 2000 conviction as relevant conduct, and no issue was raised about it at
sentencing.
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probation for the 1998 conviction. United States Sentencing Commission, Guidelines
Manual, §4A1.1(d) (Nov. 2000). This would have given him a total of four criminal
history points, placing him in criminal history category III with a guidelines range of
87 to 108 months. See USSG §4A1.1(c)-(d).

       Weiland argues that the 1998 conviction was relevant conduct because it was
related to his conviction for conspiracy. He observes that there is both geographical
and temporal proximity between his 1998 conviction and the conspiracy. Both
occurred in Dubuque, Iowa, and the 1998 conviction was within the time frame of the
conspiracy. Weiland also points out that both prosecutions were by the Dubuque
Drug Task Force and both search warrant applications for his residence were prepared
by the same officer. The conspiracy charge also includes drugs – methamphetamine,
cocaine, marijuana and LSD – connected with the 1997 search and the affidavit in
support of that search.

       To resolve this appeal, we must start with the guideline provisions on criminal
history and relevant conduct. Key to the analysis is determining what conduct fell
within Weiland's "instant offense." The guidelines direct courts to count any previous
sentence in calculating a defendant's criminal history, as long as the sentence was not
for conduct that is "part of the instant offense." USSG §4A1.2(a)(1). Relevant
conduct is defined as "[c]onduct that is part of the instant offense," USSG §4A1.2,
comment. (n.1), and includes "all acts… that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the course of attempting
to avoid detection or responsibility for that offense." USSG §1B1.3(a)(1). Relevant
conduct is not to be counted in calculating a defendant's criminal history. USSG
§4A1.2, comment. (n.1).

       Conduct underlying a prior conviction is not relevant to the instant offense if
the former conviction was a "severable, distinct offense" from the latter. United
States v. Davidson, 195 F.3d 402, 409 (8th Cir. 1999), cert. denied, 528 U.S. 1180
(2000) (quoting United States v. Blumberg, 961 F.2d 787, 792 (8th Cir. 1992)).

                                         -4-
Several factors are used to judge whether a prior conviction represents a "severable,
distinct offense," including whether there was temporal and geographical proximity,
a common scheme or plan, or common victims. Davidson, 195 F.3d at 409.

       The determination that Weiland's 1998 conviction was relevant conduct
involved a fact intensive inquiry, and we recognize the district court's sentencing
expertise and greater familiarity with the factual record. Buford v. United States, 532
U.S. 59, 65-66 (2001); Koon v. United States, 518 U.S. 81, 97-100 (1996). When
application of the guidelines involves mixed questions of fact and law, an abuse of
discretion standard of review is used. Koon, 518 U.S. at 100. A district court abuses
its discretion when it makes an error of law or a clearly erroneous assessment of the
evidence. Id.; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).

      The government contends that personal use drugs are not relevant conduct for
conspiracy to distribute cases. It cites in support United States v. Fraser, 243 F.3d
473, 474-76 (8th Cir. 2001), a case in which we held that drugs that had been acquired
for personal consumption were not relevant conduct because they were not within
"the common scheme or plan" of selling, giving, or passing drugs to another. The
government asks that the reasoning in Fraser, a possession with intent to distribute
case, be extended to conspiracy to distribute cases. It argues that convictions
involving personal use drugs should not be considered relevant conduct in a
conspiracy case.

      We note that Fraser itself distinguished conspiracy cases from those dealing
with possession with intent to distribute, finding "an important distinction" in respect
to sentencing. Id. at 475. In conspiracy cases, "all reasonably foreseeable drug
quantities" are to be used to determine the base offense level, that is those quantities

      that are "part of the same course of conduct or common scheme or plan
      as the offense of conviction," are relevant conduct.          USSG
      §1B1.3(a)(2)…. When a defendant, who is a member of a conspiracy to


                                          -5-
      distribute, purchases drugs for her personal use from a co-conspirator,
      the personal-use quantities "'are relevant in determining the quantity of
      drugs the defendant knew were distributed by the conspiracy….'" What
      the buyer intends to do with the drugs, in this situation, is irrelevant.

Id. (quoting United States v. Innamorati, 996 F.2d 456, 492 (1st Cir. 1993)).
Following the lead of Fraser, we conclude that drugs that are "part of the same course
of conduct or common scheme or plan" of the conspiracy are to be counted as
relevant conduct for purposes of determining the base offense level. USSG
§1B1.3(a)(2). They are likewise to be considered "part of the instant offense" when
computing criminal history under the guidelines. USSG §4A1.2, comment. (n.1)).

       The record here shows that the 1998 conviction was part of a common plan or
scheme to distribute several types of drugs in the Dubuque area during the time
period of the conspiracy. The underlying conduct for both the 1998 conviction for
possession and the 2001 conviction for conspiracy occurred in the Dubuque area, and
both crimes were investigated by the same law enforcement officer. The conspiracy
charge also involved the same types of drugs as found in Weiland's residence in the
1997 search – methamphetamine, marijuana, and cocaine – and the criminal intent in
both was similar. Contrary to the argument that the 1997 search of Weiland's
apartment only involved personal use drugs, the search uncovered other indicia of
drug dealing – a hand held scale, plastic vials, a large amount of cash, and firearms.
This evidence was consistent with the statements of the confidential informant –
statements used in support of the application for the search warrant – that Weiland
had been involved in the distribution of methamphetamine, cocaine, marijuana and
LSD in the Dubuque area for several years. The government admitted at the
sentencing hearing that some of the evidence used to support probable cause for the
1997 search warrant was also used as evidence for the conspiracy. It also admitted
at oral argument in this court that it could have introduced the possession conviction
as substantive evidence of the conspiracy if there had been a trial on the charge.




                                         -6-
       United States v. Kenyon, 7 F.3d 783, 787 (8th Cir. 1993), supports the treatment
of the 1997 offense as relevant conduct. In Kenyon, we held that a prior conviction
for possession of cocaine was relevant conduct for a conspiracy to possess with intent
to deliver cocaine. The conduct underlying the state possession conviction
"comprise[d] part of the conduct alleged in the count to which [the defendant] pled
guilty…." Id. Because the earlier offense was "part of the same criminal scheme"
and was "committed within the same time period" it was relevant conduct. Id.
Similarly, we conclude that Weiland's 1998 conviction was for conduct that was part
of the same criminal scheme as the conspiracy and was therefore properly calculated
as relevant conduct.

       The government cites a number of cases that are factually different from this
one. United States v. Thomas, 894 F.2d 996, 997 (8th Cir. 1990), did not involve a
relevant conduct analysis, but rather an analysis of whether the defendant was
properly classified as a career offender.4 Our subsequent holding in Kenyon makes
it clear that all facts and circumstances of an offense must be examined when the
issue is relevant conduct. See also United States v. Loveless, 139 F.3d 587, 594-95
(8th Cir. 1998) (severable and distinct offense where no evidence that drugs in prior
California conviction were intended to be distributed in Nebraska); United States v.
Torres-Diaz, 60 F.3d 445, 448-49 (8th Cir. 1995) (conviction for maintaining a party
house counted as criminal history because intent different from distribution); United
States v. Hopson, 18 F.3d 465, 468 (7th Cir. 1994) (evidence showed a prior
possession conviction was a severable and distinct offense); United States v. Escobar,
992 F.2d 87, 89-90 (6th Cir. 1993) (severable and distinct offense where there was an
insufficient temporal relationship between possession charge and overt acts in the
conspiracy).




      4
       In Thomas the court held that the defendant's 1986 drug offense could serve
as one of the two necessary predicate felonies to his conviction for a 1983-1988
conspiracy which had not yet terminated. 894 F.2d at 997.
                                         -7-
       The evidence here shows that the 1998 drug conviction was not a severable and
distinct offense from the charged conspiracy for which Weiland was convicted in
2001. Both offenses had temporal and geographic proximity and involved the same
criminal scheme, and the fact that the same types of drugs were involved in both
convictions distinguishes this case from United States v. Flores, 149 F.3d 1272, 1281
(10th Cir. 1998). We conclude that the district court did not abuse its discretion by
treating Weiland's 1998 conviction as relevant conduct.

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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