US v. Derrick Lucas

Filing 920091007

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4024 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DERRICK ANTHONY LUCAS, a/k/a Ease Up, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:07-cr-00794-TLW-1) Submitted: August 26, 2009 Decided: October 7, 2009 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. T. Kirk Truslow, TRUSLOW LAW FIRM, LLC, North Myrtle Beach, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Carrie A. Fisher, Alfred W. Bethea, Assistant United States Attorneys, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Derrick possession cocaine with Anthony intent to 21 Lucas was convicted five 841(a), by a or jury more of of distribute U.S.C. grams base (crack), (b)(1)(B) (2006) (Count 1); using and carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. 924(c)(1)(A) (2006) (Count 2), and possession of a firearm by a convicted felon, 18 U.S.C. 922(g)(1) (2006) (Count 3). He received a total sentence of 324 months imprisonment for Counts 1 and 3, with a sixty-month consecutive sentence for Count 2. Lucas appeals his sentence, contending that the district court erred in finding that his prior drug activity constituted relevant conduct under U.S. Sentencing Guidelines Manual 1B1.3(a) (2008). We affirm. Lucas sold 1.5 grams of marijuana to a confidential informant in July 2005. home. A search warrant was executed at his When the officers entered, Lucas was exiting the kitchen Twelve bags where powder cocaine was being cooked into crack. of marijuana packaged for sale were recovered, as well as a .357 Magnum revolver that was found under Lucas' mattress. federal charges six with were brought who against described back to the Lucas, crack early After investigators and marijuana One interviewed transactions persons him going 1990's. witness testified at Lucas' trial. Information from all six was 2 used to calculate the quantity of crack attributable to Lucas for sentencing purposes. "When a defendant has committed multiple offenses similar to the charged offense, all conduct that is `part of the same course of conduct or common scheme or plan as the offense of conviction' constitutes relevant conduct" under USSG 1B1.3(a)(2). United States v. Hodge, 354 F.3d 305, 312-13 (4th Cir. 2004) (quoting USSG 1B1.3(a)(2)); see also United States v. Dugger, 485 F.3d 236, 241-42 (4th Cir. 2007) (same). Application Note 9(B) to 1B1.3 provides that prior offenses are 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 part of a single episode, spree, or ongoing series of offenses." Hodge, 354 F.3d at 313. Criminal acts may be part of the same course of conduct even if they do not involve common participants and are not connected by an overall scheme. Id. Factors to be considered in determining whether offenses are part of the same course of conduct "include the degree of similarity of the offenses, the regularity (repetitions) of the offenses, (quoting and the time interval 9(B)). drug between The the offenses." Id. Application that Note sentencing constituted court's relevant determination prior activity conduct because it was part of the same course of conduct as the offense of conviction is reviewed for clear error. 3 Id. Lucas correctly asserts that the instant offense and his prior drug activity were not part of a common scheme or plan. USSG 1B1.3, comment. (n.9(A)). He also argues that his prior conduct was not part of the same course of conduct as the instant offense because he was not convicted of conspiracy and, with respect to each witness' statement, he claims that "[t]he offense of conviction was possession of drugs," while the prior "activity [was] drug transacting" which was unconnected to the instant offense. In fact, Lucas' current offense is possession He was in the with intent to distribute, not simple possession. act of cooking powder cocaine into crack when the search was executed at his home and bags of marijuana packaged for sale were also found in his home. similarity between his These facts show a high degree of offense and his prior drug current activity, which involved sale of both crack and marijuana. Lucas there was argues that, taking (number each of witness separately, in his little regularity repetitions) dealings with each of them, and there was often a considerable lapse of time between his various transactions with them. In addition, most of the prior drug transactions were remote in time from the instant offense. However, the evidence of Lucas' prior drug activities established that he consistently bought and sold cocaine, crack, and marijuana over a ten-to-fifteen year period in Hartsville and the surrounding county. 4 Not all prior drug activity is necessarily relevant conduct. involvement detention See in for Dugger, scheme crack to 485 sell F.3d at 241-42 and (defendant's while in marijuana was Xanax relevant distribution not conduct because of lack of continuity or similarity between conduct in detention and pre-detention crack sales, which occurred a year earlier). However, here, the offense of conviction was exactly the same kind of conduct as the prior drug activity described by the witnesses. Therefore, the district court did not clearly err in finding that the offense of conviction was part of the same course of conduct as Lucas' prior drug activity. We district facts therefore We affirm the with are and sentence oral imposed by the the the the court. legal before dispense argument because in aid and contentions the court adequately argument presented not materials would decisional process. AFFIRMED 5

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