United States Court of Appeals,
Eleventh Circuit.
No. 96-9455.
UNITED STATES of America, Plaintiff-Appellee,
v.
Silvio GOMEZ, Defendant-Appellant.
Jan. 14, 1999.
Appeal from the United States District Court for the Southern District of Georgia. (No. CR496-76-
WTM), William T. Moore, Judge.
Before TJOFLAT and HULL, Circuit Judges, and KRAVITCH, Senior Circuit Judge.
TJOFLAT, Circuit Judge:
The appellant, Silvio Gomez, was convicted by a jury on one count of conspiracy to possess
with intent to distribute heroin, cocaine, and crack cocaine, in violation of
21 U.S.C. § 846. The
conspiracy operated out of the Sparkling City Car Wash in Savannah, Georgia. Gomez, a resident
of Miami, was alleged to be one of the operation's suppliers. Government witnesses who were
involved in the operation testified that Gomez sold them powdered cocaine on repeated occasions
over the course of a two-year period; they in turn sold the cocaine (in powdered or "crack" form)
out of the Sparkling City Car Wash.1 Each sale by Gomez involved at least one-quarter kilogram of
cocaine. Another Government witness, Leanor Leal, was not involved in the Savannah operation
but testified that, near the time Gomez allegedly began supplying drugs to that operation, he sold
two kilograms of cocaine to her boyfriend, Danny Saldana.
At trial, Gomez testified on his own behalf and denied any involvement in the conspiracy.
1
These witnesses were originally Gomez' co-defendants in the conspiracy charge; they pled
guilty prior to trial.
He denied selling any cocaine to the alleged co-conspirators or to Danny Saldana; indeed, he stated
that he had never sold drugs to anyone.
I.
Gomez' main contention on appeal is that the district court should have given the following
requested jury instruction:
Members of the jury, if, from the evidence presented, you find that only a buyer and seller
relationship existed between this Defendant and the witnesses who have admitted their
participation in the Sparkling City Car Wash operation, then, in such event you must acquit
this Defendant. Mere proof of the existence of a Buyer-Seller relationship is not enough to
convict one as a co-conspirator on drug conspiracy charges.
We review the district court's refusal to give the requested instruction for an abuse of discretion.
See United States v. Trujillo,
146 F.3d 838, 846 (11th Cir.1998). Refusal to give a jury instruction
constitutes an abuse of discretion only if, inter alia, the proposed instruction dealt with an issue
properly before the jury. See United States v. Lyons,
53 F.3d 1198, 1200 (11th Cir.1995).
The proposed jury instruction did not deal with an issue properly before the jury. The jury
in this case had to make a credibility choice between Gomez, who denied any drug sales, and the
Government's witnesses, who stated that Gomez made repeated sales of substantial quantities to
them. If the jury believed Gomez, it would conclude that he was entirely innocent of wrongdoing
because he had sold no drugs whatsoever. If the jury believed the Government's witnesses, it would
conclude that Gomez had engaged in a pattern of sales sufficient to link him to the conspiracy—the
quantity and frequency of the sales would have put Gomez on notice that the drugs were being
purchased with an intent to distribute. See United States v. Cordova,
157 F.3d 587, 597 (8th
Cir.1998) (noting that a buyer-seller jury instruction "is appropriately given in a single transaction
case involving small quantities of drugs consistent with personal use"); United States v. Berry,
133
F.3d 1020, 1023 (7th Cir.1998) (noting that "[e]vidence of a conspiracy, as opposed to a buyer-seller
relationship, may include transactions involving large quantities of drugs [and] prolonged
cooperation between the parties"). Under neither scenario could the jury reasonably conclude that
Gomez was in a mere buyer-seller relationship with the members of the conspiracy. See United
States v. Canino,
949 F.2d 928, 941 (7th Cir.1991) (holding that where the Government alleged sales
of large quantities of drugs and the defendants's defense was improper venue, a buyer-seller
instruction "would have been an absurdity given the evidence submitted at trial"). The district court
therefore did not abuse its discretion in refusing to give the proposed instruction.
II.
Gomez also challenges the calculation of his offense level under the Sentencing Guidelines.
The Sentencing Guidelines create differing base offense levels for drug offenses depending on the
quantity of drugs involved. See United States Sentencing Commission, Guidelines Manual, §
2D1.1(c) (Nov. 1, 1995). The district court, in calculating Gomez' base offense level, determined
that Gomez was responsible for selling three and one-quarter kilograms of cocaine; this amount
included the two kilograms sold to Danny Saldana. This resulted in a base offense level of
twenty-eight, see U.S.S.G. § 2D1.1(c)(6), to which two points were added for obstruction of justice,
resulting in a total offense level of thirty.2 Gomez had a criminal history category of three; thus,
the applicable sentencing range was 121-151 months. See U.S.S.G. ch. 5, pt. A. He was sentenced
to 136 months imprisonment.
The district court erred in including the cocaine sold to Danny Saldana in calculating
Gomez' base offense level. Under the sentencing guidelines, a defendant may be held accountable
at sentencing for illegal conduct not in furtherance of the offense of conviction if that conduct was
2
The obstruction of justice points were based on Gomez' alleged perjury in testifying that he
had never sold drugs.
"part of the same course of conduct or common scheme or plan" as the offense of conviction.
U.S.S.G. § 1B1.3(a)(2). Whether two acts are part of the "same course of conduct" depends largely
on how the relevant "course of conduct" is defined. If the course of conduct in this case is merely
the distribution of cocaine, then the sale to Saldana would certainly be part of that course of conduct.
This, however, seems too broad of a characterization. The course of conduct on which the
indictment and the trial focused was the distribution of cocaine through the Sparkling City Car Wash
operation, out of which the conspiracy operated and from which the relevant "intent to distribute"
applied. Therefore, only sales that are related to the Sparkling City Car Wash operation should be
considered part of the same course of conduct.
Danny Saldana was in no way connected to the Sparkling City Car Wash operation; the
testimony relating to his cocaine purchases presumably was elicited pursuant to Federal Rule of
Evidence 404(b) merely as evidence of Gomez' intent to distribute. See United States v. Hernandez,
896 F.2d 513, 521-22 (11th Cir.1990). Consequently, the sales to Saldana were not part of the
"same course of conduct" as the conspiracy, and should not have been included in calculating
Gomez' base offense level.
Looking at the issue another way, the background commentary to U.S.S.G. § 1B1.3(a)(2)
states that it is generally meant to apply to offenses that "involve a pattern of misconduct that cannot
readily be broken into discrete, identifiable units." When an act of misconduct can be easily
distinguished from the charged offense, a separate charge is required. See United States v. Blanc,
146 F.3d 847, 852-54 (11th Cir.1998). In this case, the sale to Saldana is conceptually distinct from
the Sparkling City Car Wash conspiracy, and easily could have been brought as a separate charge
against Gomez. It was therefore inappropriate to use this sale in calculating the sentence for Gomez'
conspiracy conviction.
Finally, we note that this case is virtually indistinguishable from United States v. Maxwell,
34 F.3d 1006 (11th Cir.1994). In that case, Maxwell was indicted for conspiracy to possess with
intent to distribute dilaudid. The conspiracy operated as follows: Maxwell and another individual
supplied dilaudid (and, on one occasion, cocaine) to an individual named Lundy; Lundy then sold
the drugs to three other individuals who sold them to the end users. The Government, in order to
prove criminal intent on the part of Maxwell (who had pled not guilty), introduced evidence of
Maxwell's other drug dealings. This evidence included the sale of 546 grams of cocaine to an
individual not in the conspiracy; these 546 grams were then added to the cocaine sale that Maxwell
had made as part of the conspiracy in calculating his sentence. We vacated Maxwell's sentence on
the ground that the district court clearly erred in including the 546 grams in determining Maxwell's
base offense level.3
This is not to say that, in calculating a defendant's base offense level for a drug conspiracy
conviction, uncharged drug sales to persons outside of the conspiracy can never be included. On
the contrary, we have previously held—and continue to hold—that uncharged criminal activity
outside of a charged conspiracy may be included in sentencing if the uncharged activity is
sufficiently related to the conspiracy for which the defendant was convicted. See United States v.
Fuentes,
107 F.3d 1515, 1525-26 (11th Cir.1997); Maxwell,
34 F.3d at 1011; see also U.S.S.G. §
1B1.3, comment. (n.9)(B) (giving examples of factors to be considered in determining whether an
offense is part of the "same course of conduct" as another offense, including "the degree of similarity
3
Maxwell is slightly different from this case in that Maxwell's side dealings involved cocaine
while the conspiracy with which he was charged involved dilaudid, whereas Gomez' side
dealings and the conspiracy with which he was charged both involved cocaine. Maxwell,
however, as noted above, distributed at least some cocaine as part of his conspiracy. More
importantly, the fact that Maxwell's side dealings involved a different narcotic while Gomez' side
dealings involved the same narcotic simply is not a substantial distinction.
of the offenses, the regularity (repetitions) of the offenses, and the time interval between the
offenses"). Under the facts of this case, however, the uncharged drug sales were totally unrelated
to the conspiracy, and thus should not have been included in calculating the defendant's base offense
level.
Removing the two kilograms sold to Danny Saldana from the calculation brings the total
quantity of drugs attributable to Gomez down to one and one-quarter kilograms, resulting in a base
offense level of twenty-six. See U.S.S.G. § 2D1.1(c)(7). This, combined with two points for
obstruction of justice and a criminal history category of three, results in a sentencing range of 97-
121 months. See U.S.S.G. ch. 5, pt. A.
III.
For the foregoing reasons, the case is remanded for resentencing. In all other respects, the
judgment of the district court is affirmed.4
AFFIRMED in part, VACATED and REMANDED in part.
4
Gomez also raises challenges to the sufficiency of the evidence, to the admission of certain
evidence relating to prior convictions, and to the admission of the testimony of Leanor Leal. We
have reviewed these challenges and determined that they are without merit.
