                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                 UNITED STATES COURT OF APPEALS                             OCT 6 2000

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                                Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 00-8003
 v.                                                 (D.C. No. 99-CR-31-5)
                                                          (Wyoming)
 GUILLERMO HERNANDEZ,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.


      Guillermo Hernandez pled guilty to conspiracy to possess with intent to

distribute and to distribute marijuana, using a telephone to facilitate a controlled

substance offense, and distributing marijuana. He appeals his sentence, and we

affirm.

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
      The conspiracy charge to which Mr. Hernandez pled guilty alleged that he,

his sister Araceli Hernandez, and others conspired to distribute marijuana in

Casper, Wyoming, from January 1 to March19, 1999. Mr. Hernandez and Ms.

Hernandez allegedly received quantities for resale and distributed the drug to

others. The substantive counts arose from a telephone conversation between Mr.

Hernandez and his sister in which she asked him to provide her a quarter pound of

marijuana for sale to another person, and from the actual distribution of the

marijuana to that person.

      At sentencing, the government argued that Mr. Hernandez’ base offense

level should include as relevant conduct marijuana he had allegedly possessed

with intent to distribute approximately two years earlier in Casper. In support of

its position, the government presented evidence from Chad Campbell, who had

lived with Mr. Hernandez for four or five months in the spring of 1997. Mr.

Campbell testified that during this time he observed one-pound blocks of

compressed marijuana in the freezer unit of the refrigerator in the residence they

shared, that the amount fluctuated as Mr. Hernandez sold this marijuana, and that

he himself sold small quantities of it on occasion and gave the proceeds to Mr.

Hernandez. Mr. Campbell further stated that he had earlier possessed eight

pounds of marijuana in blocks at another residence and that that quantity was very

similar to the amount he observed in Mr. Hernandez’ freezer.


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      The district court credited Mr. Campbell’s testimony and concluded that

eight pounds of marijuana should be included as relevant conduct in calculating

Mr. Hernandez’ total offense level. As a result, Mr. Hernandez had a total

offense level of 10 and a criminal history category of III, for a sentencing range

under the Sentencing Guidelines of ten to sixteen months. The judge’s thirteen-

month sentence fell in the middle of the applicable range.

      On appeal Mr. Hernandez argues that the court erred by including the eight

pounds of marijuana for sentencing purposes, contending that Mr. Campbell’s

estimate of drug quantity lacked sufficient indicia of reliability because his

recollection was admittedly blurred by his use of drugs and alcohol during the

relevant time, and that the earlier alleged acts were too remote and dissimilar to

justify an enhancement as relevant conduct under the Guidelines.

      We review fact findings on drug quantities and relevant conduct under the

clearly erroneous standard. United States v. Richards, 27 F.3d 465, 468 (10th Cir.

1994). Whether the activity at issue qualifies as relevant conduct, however, is a

question of law we review de novo. United States v. Svacina, 137 F.3d 1179,

1182 (10th Cir. 1998). “The government must prove the existence of the

additional quantities by a preponderance of the evidence.” Richards, 27 F.3d at

468. Drug quantities may be established on the basis of estimates so long as they

have some basis of support in the record and sufficient indicia of reliability. Id.


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at 469.

      We turn first to Mr. Hernandez’ argument that the amount attributable to

his earlier sales was not supported by sufficient indicia of reliability because Mr.

Campbell was admittedly using drugs and alcohol during that period. “The

credibility of a witness at sentencing is for the sentencing court, who is the trier

of fact, to analyze. Applicable case law permits the sentencing court to accept

estimates on quantities based on information with a minimum indicia of

reliability.” United States v. Deninno, 29 F.3d 572, 578 (10th Cir. 1994). We

will not disturb the lower court’s assessment of Mr. Campbell’s credibility.

      Mr. Hernandez also argues that his earlier drug activity does not qualify as

relevant conduct. A defendant’s base offense level can be determined on the

basis of conduct other than the offense of conviction if that conduct is “part of the

same course of conduct . . . as the offense of conviction.” U.S.S.G. §

1B1.3(a)(2). “[T]he analysis of same course of conduct focuses on whether there

is a pattern of criminal conduct,” which is determined by several factors,

including “similarity, regularity, temporal proximity, the nature of the defendant’s

acts, [and] his role.” Svacina, 137 F.3d at 1183 (internal quotations omitted).

Here, the earlier drug sales took place in the same location and were very similar

in nature. Mr. Hernandez’ role as a middleman in those transactions was likewise

very similar to his role in the offense of conviction. While the earlier conduct


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was separated by a gap of almost two years, we have held that temporal proximity

is not dispositive, see United States v. Roederer, 11 F.3d 973, 979 (10th Cir.

1993), and have concluded that conduct is relevant even when separated by a gap

much longer than that present here, see id. at 979-80. Accordingly, the court did

not err in determining that Mr. Hernandez’ prior drug activity was relevant

conduct.

      Mr. Hernandez argues that his thirteen-month sentence was

disproportionate to that of his sister, who pled guilty to the same offense and was

sentenced to six months’ incarceration. “In imposing a sentence, the district court

shall consider, inter alia, ‘the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct.’” United States v. Contreras, 108 F.3d 1255, 1271 (10th Cir. 1997).

The record indicates that Ms. Hernandez had a base offense level of 4 and a

criminal history category of III, for a sentencing range of 0-6 months. Mr.

Hernandez’ base offense level was 10 because it included prior relevant conduct.

His sister’s base offense level was not similarly enhanced because it did not

include any prior relevant conduct. The disparity in their sentences reflected Mr.

Hernandez’ more extensive criminal conduct and was therefore not unwarranted.

      Finally, Mr. Hernandez contends that remarks made by the district court

during the course of the proceedings revealed a bias against him that prejudiced


                                         -5-
the court’s relevant conduct determination. 1 At sentencing, the court observed

that Mr. Hernandez’ troubles began with his use of marijuana and alcohol during

his teen years, required him to receive drug and alcohol counseling while in

prison, stated the court’s belief that Mr. Hernandez had intelligence and industry,

and encouraged Mr. Hernandez to make something of his life after his release

from incarceration. After sentence had been imposed, the court referred to

testimony from Mr. Campbell describing the extensive drinking and drug abuse

Mr. Campbell had observed and taken part in during his senior trip to Mexico.

The court stated:

             That’s why this Court is disturbed that a lot of people do not
      appreciate the magnitude of the risk they subject their children to
      when they allow them to travel to a country as lawless as Mexico.
      It’s one thing to go to Mexico when you go with your parents.
      There’s some protection from the lawless elements within that
      society. There are whole states in the Republic of Mexico that are
      controlled by the cartels. Now, that isn’t very diplomatic of me to
      say, but it is the unvarnished truth.

App., vol. IV at 58.

      Mr. Hernandez contends the above remarks reveal that the court stereotyped

him and lumped him in with lawless Mexican nationals and that the court’s

underlying prejudice affected its sentencing determination. A judge’s opinion


      1
        Mr. Hernandez refers us to comments made by the court both at a hearing
held April 14, 1999, and at his sentencing hearing on January 11, 2000. The
transcript of the April 14 hearing is not included in the record on appeal and we
therefore address only the court’s remarks at sentencing.

                                        -6-
formed on the basis of facts introduced in the course of the proceedings at issue

does not support a claim of bias or prejudice unless it displays a “deep-seated . . .

antagonism that would make fair judgment impossible.” United States v.

Pearson, 203 F.3d 1243, 1277 (10th Cir. 2000) (quoting Liteky v. United States,

510 U.S. 540, 555 (1994)). The record is clear that the judge’s comments were in

response to the testimony of Mr. Campbell rather than an extrajudicial source.

Moreover, they did not display a deep-seated antagonism making fair judgment

impossible. To the contrary, the record as a whole reveals that the judge held a

generally favorable view of Mr. Hernandez as a person with potential who had a

problem with drugs and alcohol. Accordingly we see no ground for requiring

resentencing.

      Mr. Hernandez’ sentence is AFFIRMED.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




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