U.S. v. Svacina

• Decision Date: 02 March 1998
• Docket Number: No. 96-3317,96-3317
• Citation: 137 F.3d 1179
• Parties: 98 CJ C.A.R. 995 UNITED STATES of America, Plaintiff-Appellee, v. Dale F. SVACINA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1179

137 F.3d 1179

98 CJ C.A.R. 995

UNITED STATES of America, Plaintiff-Appellee, v. Dale F. SVACINA, Defendant-Appellant.

No. 96-3317.

United States Court of Appeals Tenth Circuit.

March 2, 1998.

David V. Ayres (Thomas M.Dawson with him on the briefs), Leavenworth, Kansas, for Defendant-Appellant.

Steven K. Lester (Jackie N. Williams, United States Attorney, and David M. Lind, Assistant United States Attorney, on the brief), Assistant United States Attorney, District of Kansas, Wichita, Kansas, for Plaintiff-Appellee.

Before TACHA, McKAY, and BRISCOE Circuit Judges.

McKAY, Circuit Judge.

On January 18, 1996, Defendant, Mr. Dale F. Svacina, was indicted on two counts: (I) possession with the intent to distribute more than 100 grams of a substance containing methamphetamine, relating to a transaction on August 22, 1995; and (II) attempt to possess with the intent to distribute more than 100 grams of a substance containing methamphetamine, relating to a transaction on November 3, 1995. Pursuant to a written plea agreement, Count I was dismissed and Defendant pled guilty to Count II. Defendant was sentenced on September 16, 1996, to a term of 163 months incarceration and four years supervised release. Defendant challenges only his sentence on appeal.

I.

Defendant admits that in late August 1995 he transported ¹ from California to Kansas packages containing " 'contraband' " for which he was to "be paid '$3,000.' " Appellant's App. at 26. During his return trip to Kansas by train, Defendant was questioned by Drug Enforcement Administration (DEA) agents in Albuquerque, New Mexico. Although the officers discontinued their interview when Defendant refused to allow them to examine his carry-on luggage or to use a narcotics detection dog to sniff his luggage, they notified Kansas DEA officers about his destination. Appellant's Opening Br. at 6. DEA agents confronted Defendant when he departed from the train in Kansas. After a narcotics dog sniffed Defendant's luggage, officers searched the luggage and found 138.8 grams of actual methamphetamine. Id. at 7, 19. This conduct formed the basis for Count I of the indictment against Defendant. Defendant then was arrested in early November 1995 for attempting to purchase 80.64 grams of actual methamphetamine from undercover agents of the Kansas Bureau of Investigation. He pled guilty to this conduct represented by Count II.

Defendant objects to the district court's inclusion of 138.8 grams of methamphetamine from the August 22, 1995 transaction as relevant conduct for purposes of calculating his base offense level under the United States Sentencing Guidelines. To determine the appropriate base offense level under the guidelines, "quantities and types of drugs not specified in the count of conviction are to be included ... if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." United States Sentencing Guidelines Manual § 1B1.3(a)(2), commentary, backg'd p 3. The court determined that Defendant's possession of methamphetamine in the August transaction was "part of the same course of conduct or common scheme or plan" as Defendant's attempt to purchase, and thereby possess, methamphetamine in the transaction on November 3, 1995. ² Appellant's App. at 20. We review for clear error factual findings supporting a district court's base offense level calculations under U.S.S.G. § 1B1.3(a)(2). United States v. Roederer, 11 F.3d 973, 977 (10th Cir.1993). However, the relevance of conduct charged in Count I is a question of law which we review de novo. United States v. Hogan, 116 F.3d 442, 443-44 (10th Cir.1997); United States v. Slater, 971 F.2d 626, 638 (10th Cir.1992).

This court has agreed with the Second Circuit distinction between the terms "same course of conduct" and "common scheme or plan." See Roederer, 11 F.3d at 979. While a "common scheme or plan" may require some connection between the acts by common participants, purpose, or overall scheme, the analysis of "same course of conduct" focuses on whether there is "a pattern of criminal conduct." See id. (quoting United States v. Perdomo, 927 F.2d 111, 115 (2d Cir.1991)). Courts examine several factors to determine whether two or more transactions may be considered a part of the same course of conduct. See id.; United States v. Hahn, 960 F.2d 903, 910 (9th Cir.1992), cert. denied, 510 U.S. 949, 114 S.Ct. 394, 126 L.Ed.2d 342 (1993); Perdomo, 927 F.2d at 115; United States v. Santiago, 906 F.2d 867, 872 (2d Cir.1990). These factors may include similarity, regularity, temporal proximity, " 'the nature of the defendant's acts, [and] his role.' " Roederer, 11 F.3d at 979 (quoting Santiago, 906 F.2d at 872); see also U.S.S.G. § 1B1.3, commentary, n. 9(B).

Our review of the record indicates that the district court relied on several facts to support its findings and conclusion that the two offenses were part of the same course of conduct. Defendant was charged in Count I with possession with intent to distribute more than 100 grams of a substance containing methamphetamine. He pled guilty to attempting to possess with intent to distribute more than 100 grams of the same or a similar substance in Count II. A comparison of the dismissed Count I with Count II illustrates the similarity of the offenses charged, Defendant's conduct, and the substance involved. See Roederer, 11 F.3d at 980. Another similarity between the two offenses is that Defendant transported methamphetamine in August to the same area in Kansas involved in the November transaction. ³ See United States v. McKneely, 69 F.3d 1067, 1078 (10th Cir.1995). Additionally, the large quantity of methamphetamine involved in both instances supports a reasonable inference that Defendant intended to distribute the drug to others. A comparison of the dismissed count with the count of conviction also shows that some regularity of conduct exists--the minimum requirement of two instances of conduct. See Roederer, 11 F.3d at 979 (noting that two or more transactions may be considered a part of the same course of conduct). Finally, the record illustrates that the two offenses were temporally related because they occurred less than three months apart. See McKneely, 69 F.3d at 1078-79. The court therefore reasonably inferred that "each [offense] was an episode in an ongoing drug distribution business." Appellant's App. at 20; see Roederer, 11 F.3d at 978-79. Defendant's contention that the two instances of conduct are unrelated is not persuasive.

Defendant also argues that the district court erroneously relied on the presentence report to make its findings concerning relevant conduct. Because Appellant failed to provide us with the presentence report as part of the record on appeal, our review of this issue is limited. Fed. R.App. P. 10; 10th Cir. R. 10.3; see O'Dell v. Shalala, 44 F.3d 855, 857 n. 2 (10th Cir.1994) (noting that although record was inadequate, excerpts provided were sufficient for court to examine merits). We have "held that a district court may not satisfy its obligation by simply adopting the presentence report as its finding." United States v. Farnsworth, 92 F.3d 1001, 1011 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 596, 136 L.Ed.2d 524 (1996). It is not clear from the record that, in this case, the district court simply adopted the presentence report without any further analysis. Although the district court found the presentence report accurate, it only adopted the presentence report as relevant and true after an analysis of the presentence report's findings and Defendant's objections thereto. See Appellant's App. at 19-23. The record reflects that certain facts relied upon by the court in its relevant conduct analysis were substantiated not only by the presentence report but also by Defendant's plea agreement and Defendant's own statement submitted to the court. See id. at 9-10, 26. The court could reasonably interpret Defendant's statement to mean that he voluntarily possessed the drugs at issue and knowingly transported them to his destination in Kansas. Moreover, while Defendant objects to the methamphetamine purity findings in the presentence report, the record does not indicate that the court relied on the purity of the substances to determine that the two transactions were related conduct. ⁴ Defendant also objected to the presentence report alleging that there was no common victim, accomplices, or purpose, and that there was a different modus operandi. This objection relates to a "common scheme or plan" analysis for relevant conduct. The court's finding of relevant conduct, however, was predicated solely on a "same course of conduct" analysis; ⁵ the factual findings demonstrate similarity, regularity, and temporal proximity of the two offenses. See id. at 19-21. We are not convinced by Defendant's argument that the court could not rely on the presentence report, and we cannot conclude that the court clearly erred in adopting the presentence report.

Defendant also contends the court's finding of relevant conduct is unwarranted because he could have presented defenses to the August transaction pursuant to our decision in United States v. Custodio, 39 F.3d 1121 (10th Cir.1994). Custodio does not control the disposition of this case. In Custodio, we agreed with the district court's finding that because the government failed to prove by a preponderance of the evidence that the alleged relevant conduct was part of the same course of conduct or the same scheme or plan as the conduct of conviction, it did not constitute relevant conduct for sentencing purposes. Id. at 1126. In this case, however, the district court made a preliminary determination that the evidence supported a finding of "same course of conduct." Additionally, in Custodio, because the alleged relevant conduct was uncharged, the court was concerned that some defenses might have been available to the defendant had the...