United States v. Gomez

No. 99-20599
1–
* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20599
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE GOMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CR-126-7
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April 13, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Eddie Gomez argues that the district court clearly erred in
including the 1996 cocaine transactions as relevant conduct to
the offense of conviction. The inclusion of the 1996
transactions increased the quantity of drugs for which Gomez was
held responsible. Gomez argues that the 1996 cocaine
transactions were not part of the conspiracy for which he was
convicted and were not part of the same common scheme or plan as
the conspiracy.

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No. 99-20599
2–
The district court’s determination on the quantity of drugs
for sentencing purposes is a factual finding that this court
reviews for clear error. United States v. Torres, 114 F.3d 520,
527 (5th Cir. 1997). To determine whether prior conduct
qualifies as relevant conduct under § 1B1.3(a)(2), we consider
the similarity, regularity, and temporal proximity of the
conduct. United States v. Bethley, 973 F.2d 396, 401 (5th Cir.
1992) (relevant conduct apply to drug distributions occurring
continuously during the six months before the charged conduct).
There is no dispute as to the facts of this case. The
cocaine trafficking engaged in during 1996 was outside of the
time period which the indictment specified for the conspiracy.
The 1996 transactions took place less than one year before the
dates of the conspiracy. The 1996 transactions involved the same
people involved in the charged conspiracy. Gomez argues that the
1996 transactions were not part of the conspiracy because the
drugs moved in 1996 did not come from the same source or go to
the same destination as the drugs in the charged conspiracy.
This argument would be persuasive if the charged conspiracy
involved regular shipments of drugs from a single source to a
single destination; however, the charged conspiracy was not a
structured operation. Rather, it consisted of stealing, buying,
and selling marijuana and cocaine in an opportunistic manner.
The district court was not clearly wrong in finding that the 1996
transactions were part of the relevant conduct of the conspiracy.
AFFIRMED.

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