United States v. Oscar Diaz ( 2018 )

Case: 17-40995 Document: 00514718389 Page: 1 Date Filed: 11/09/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40995 FILED
Summary Calendar November 9, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
OSCAR DIAZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:17-CR-436-3
Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM: *
Oscar Diaz appeals the sentence imposed following his guilty plea
conviction for possession with intent to distribute 500 grams or more, that is,
approximately five kilograms, of a mixture and substance containing
methamphetamine. He argues that the district court clearly erred in
calculating the amount of methamphetamine attributable to him as relevant
conduct under U.S.S.G. § 1B1.3. Specifically, he argues that the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-40995 Document: 00514718389 Page: 2 Date Filed: 11/09/2018
No. 17-40995
methamphetamine that he and his codefendant Melvin Vasquez allegedly
delivered on two occasions to unknown coconspirators during the two-week
period that preceded the offense of conviction should not have been considered
as relevant conduct.
Relevant conduct includes all acts and omissions “that were part of the
same course of conduct or common scheme or plan as the offense of conviction.”
§ 1B1.3(a)(2); United States v. Wall, 180 F.3d 641, 645 (5th Cir. 1999). Drug
offenses may qualify as 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.” § 1B1.3,
comment. (n.5(B)(ii)). Relevant factors include “the degree of similarity of the
offenses, the regularity (repetitions) of the offenses, and the time interval
between the offenses.” § 1B1.3, comment. (n.5(B)(ii)).
The factors of temporal proximity and similarity weigh in favor of the
offenses being counted as the same course of conduct. Cf. United States v.
Rhine, 583 F.3d 878, 886-89 (5th Cir. 2009); Wall, 180 F.3d at 645-47.
Moreover, the evidence recovered during the search of Diaz’s apartment
supports a finding that he was involved in the regular distribution of
methamphetamine. Cf. Rhine, 583 F.3d at 889-91.
Accordingly, the district court did not clearly err in finding that the two
prior deliveries of methamphetamine should be considered relevant conduct
for purposes of § 1B1.3. See United States v. Mann, 493 F.3d 484, 497 (5th Cir.
2007); § 1B1.3, comment. (n.5(B)). The district court’s judgment is
AFFIRMED.
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