IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 02-50538 __________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

STEVEN GLENN DERDEN, Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court for the Western District of Texas (02-CR-24) ___________________________________________________ February 12, 2003

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM*:

Defendant-Appellant Steven Glenn Derden appeals from the

sentence imposed by the district court after he pleaded guilty to

stealing and possessing anhydrous ammonia with the intent to

manufacture methamphetamine. We affirm.

I. FACTS AND PROCEEDINGS

In January 2002, Derden and Joshua Self were arrested

following their unsuccessful attempt to steal anhydrous ammonia

from a farm in Mertens, Texas. At the time of the arrest, police

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. discovered, either on the arrestees’ persons or in their vehicle,

six empty propane bottles, heavy-duty rubber gloves of the type

used to protect a person from ammonia burns, $3,240 in cash, a

small knife, and a brass adapter for a propane bottle. When the

police went to the scene of the attempted theft, they discovered

another propane bottle, which was three-quarters full of anhydrous

ammonia. Self confessed to the police that he and Derden were

planning to fill all of the propane bottles with anhydrous ammonia

and then sell the filled bottles in Ft. Worth, Texas, where their

contents would be used in the manufacture of methamphetamine.

The following month, a grand jury indicted Derden on two

counts, one for conspiring to manufacture methamphetamine, and

another for stealing and possessing anhydrous ammonia with the

intent to manufacture methamphetamine. Derden pleaded guilty to

the second count.

Subsequently, Derden appeared before the district court for a

sentencing hearing. Pursuant to the plea agreement with Derden,

the government submitted a motion to dismiss the first count of the

indictment. The Presentence Report (“PSR”) recommended a base

offense level of 26, which was derived from a cumulative drug

quantity of 119.82 kilograms of marijuana, being the total amount

of marijuana and marijuana-equivalent drugs seized from Derden in

the January 2002 arrest and in three arrests in the prior year.

The reason that the probation officer included the drug

quantities from Derden’s three prior arrests in the PSR was that

2 the facts underlying these arrests constituted “relevant conduct.”1

Derden had first been arrested in February 2001 after police

discovered, in his apartment, 13.5 ounces of marijuana, 29.6 grams

of marijuana, and 17.5 grams of methamphetamine (equivalent to

35.41 kilograms of marijuana). Then, in April 2001, police

executed an arrest warrant at Derden’s apartment, seizing 271.53

grams of marijuana and 25.59 grams of methamphetamine (equivalent

to 51.45 kilograms of marijuana). Finally, in May 2001, Derden was

arrested following a traffic stop, and police seized from his

vehicle two propane bottles and two propane adapters, a large

knife, a syringe, 12.41 grams of methamphetamine, and 8.8 grams of

cocaine (equivalent to 26.58 kilograms of marijuana). In the

course of Derden’s three arrests, the police had seized a total of

$5,629 in cash (equivalent to 6.38 kilograms of marijuana).

The PSR also stated that the police knew Derden to be a

manufacturer and distributor of drugs. The PSR reported that

police detective Kendall Novak had averred that Derden had been

manufacturing and distributing methamphetamine for several months

prior to the February 2001 arrest, and that evidence of a

methamphetamine production process was found in Derden’s home.

Also, Derden admitted, following the February 2001 arrest, that the

$1,793 in cash seized by police at that time was “drug money” and

1 The U.S. Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”) permits district courts to take into consideration, for sentencing purposes, conduct not specified in the indictment for which a defendant was convicted. See U.S.S.G. § 1B1.3 (2002).

3 that he had been selling marijuana on a regular basis.

Although Derden conceded that the May 2001 arrest was for

conduct similar to that involved in his January 2002 arrest, he

objected to the inclusion of the drug-quantity information from his

February and April 2001 arrests. At sentencing, the government

sought to support the PSR’s position that the drug quantities from

all of Derden’s prior arrests should be included in the PSR as

relevant conduct, which could be considered as part of a common

scheme in computing a base offense level.2 The “common scheme” was

Derden’s ongoing activities in manufacturing and distributing

drugs. In furtherance of the government’s support of the

information contained in the PSR, it adduced testimony of police

officer Trey West that, typically, the quantities of

methamphetamine seized from Derden in the February and April 2001

arrests were indicative of an intent to distribute, as opposed to

personal use, as was the act of stealing anhydrous ammonia with the

intent to manufacture methamphetamine.

The district court denied Derden’s objections, finding the

evidence sufficient to demonstrate that all three arrests in 2001

were “properly connected” to his January 2002 arrest and thereby

constituted “relevant conduct” as “a common scheme or plan.” The

court thus adopted the PSR’s recommended base offense level of 26,

which, following adjustments, resulted in a total offense level of

2 U.S.S.G. § 2D1.1, cmt. n.6 & 12 (2002).

4 25. The court also granted the government’s motion to dismiss the

first count of the indictment. Accordingly, the district court

sentenced Derden to (1) 60 months’ imprisonment, (2) supervision

for 3 years following his release from prison, and (3) payment of

a $1,000 special assessment. Derden timely filed a notice of

appeal.

II. ANALYSIS

Derden advances two issues on appeal: (1) Did the district

court err when it determined that, under the Guidelines, Derden’s

arrests in February and April 2001 were for acts constituting

“relevant conduct,” and (2) did the district court err in applying

the Guidelines when it used a cross-referenced section that

produced a higher base offense level. We address these claims in

sequence.

A. Relevant Conduct Under the Guidelines.

1. Standard of Review.

We review for clear error a district court’s finding of

relevant conduct in its determination of a defendant’s base offense

level under the Guidelines.3

2. Derden’s Three Arrests in 2001 Were for Relevant Conduct.

In sentencing a defendant for violating the federal drug laws,

3 United States v. Ocana,

(5th Cir. 2000).

5 “the base offense level can reflect quantities of drugs not

specified in the count of conviction if they were part of the same

course of conduct or part of a common scheme or plan as the count

of conviction.”4 The Guidelines thus provide for two types of

“relevant conduct.”5 First, a “course of conduct” comprises

offenses that “are sufficiently connected or related to each other

as to warrant the conclusion that they are part of a single

episode.”6 A “sufficient connection” between offenses is

determined to exist when three factors are present: “the degree of

similarity of the offenses, the regularity (repetitions) of the

offenses, and the time interval between the offenses.”7 Second, a

“common scheme or plan” is defined as two or more offenses that are

“substantially connected to each other by at least one common

factor, such as common victims, common accomplices, common purpose,

or similar modus operandi.”8

Derden contends on appeal that his two arrests in early 2001

were not part of a “course of conduct,” and thus fail the “relevant

conduct” requirements of the Guidelines. He argues that (1) the

drugs and related materials seized in his various arrests differ in

4 United States v. Moore,

(5th Cir. 1991) (emphasis added). 5 U.S.S.G. § 1B1.3(a)(2). 6 U.S.S.G. § 1B1.3, cmt. n.9(A). 7 Id. 8 U.S.S.G. § 1B1.3, cmt. n.9(B).

6 type and quantity, (2) the “time interval” between his arrests do

not evidence any consistency or regularity in his actions, (3) his

arrests in February and April 2001 are temporally too attenuated

from his arrest in January 2002 to constitute a “sufficient

connection,” and (4) the only common element in each arrest —— the

methamphetamine —— is insufficient by itself to connect these

events. In sum, Derden maintains that his prior arrests in

February and April 2001 lack the sufficient similarity, regularity

and close temporal relationship needed to qualify as a “single

episode,” which is the defining element of finding a “course of

conduct.”

Derden’s arguments are misdirected, however, because the

probation officer included Derden’s prior arrests in the PSR, not

as evidence of a “course of conduct,” but rather as evidence of a

“common scheme or plan.” In arguing for the adoption of the PSR

before the district court, the government asserted that Derden was

a drug manufacturer and distributer, and that each of his prior

arrests reflected this common purpose.9 The district court adopted

the PSR’s information on Derden’s prior arrests as “relevant

conduct” because it found that these arrests reflected Derden’s

common purpose of manufacturing and distributing drugs.

The district court’s finding of Derden’s common purpose as a

9 U.S.S.G. § 1B1.3, cmt. n.9(B) (explaining that a “common scheme or plan” consists of “two or more offenses...connected to each other by at least one common factor, such as...common purpose”).

7 drug manufacturer and distributer was based on evidence of (1) the

substantial quantity of drugs seized in each arrest, (2) the

substantial amounts of cash seized in each arrest, (3) the

methamphetamine manufacturing process seized from Derden’s

apartment, (4) the police detective’s testimony that Derden was a

known drug distributer, (5) Derden’s February 2001 admission that

he was engaged in drug distribution, (6) the use of anhydrous

ammonia in manufacturing methamphetamine, and (7) the confession by

Self that he and Derden were acting to further the manufacture of

methamphetamine. Derden neither specifically objected to any of

this evidence, nor offered any countervailing testimony or evidence

of his own. Thus, there exists neither relevant evidence nor legal

argument to support Derden’s contention that the district court

clearly erred in its finding that his prior arrests constituted

relevant conduct for purposes of sentencing.

This conclusion is consistent with our past decisions

reviewing sentences based, in part, on “relevant conduct.”

“Particularly in drug cases, this circuit has broadly defined what

constitutes ‘the same course of conduct’ or ‘common scheme or

plan.’”10 Derden has given us no reason to depart from this

practice and adopt his narrow construction of “relevant conduct.”

10 United States v. Bryant,

(5th Cir. 1993). Cf. Moore,

(noting that “[w]e have already held that a court properly may consider the amounts of drugs still under negotiation in an uncompleted distribution when calculating relevant conduct”).

8 This is particularly true given the fact that all of Derden’s

arrests in 2001 occurred less than a year before the offense to

which he pleaded guilty, for “[i]t is well settled in this circuit

that offenses which occur within a year of the offense of

conviction may be considered relevant conduct for sentencing.”11

When we view the record as a whole, we are not left “with the

definite and firm conviction that a mistake has been made”12 by the

district court in finding that the quantity of drugs and other

factors involved in Derden’s prior arrests constituted relevant

conduct for sentencing purposes.

B. The District Court’s Use of a Cross-Referenced Section in Setting Derden’s Base Offense Level.

1. Standard of Review.

Derden raises this objection for the first time on appeal.

Accordingly, we will review the district court’s ruling only for

plain error.13 As such, we may act on Derden’s post-sentence

objection only if (1) there was an error, (2) the error was clear,

obvious or readily apparent, and (3) this error affected

11 Ocana,

. See also United States v. Anderson,

(5th Cir. 1999) (affirming district court’s finding of relevant conduct for illegal timber removal given “common purpose” and “similar modus operandi,” despite the occurrence of the acts “over a period of several years”). 12 Anderson v. City of Bessemer City,

(1985) (specifying the standard for reviewing a district court’s findings for clear error). 13 United States v. Thames,

(5th Cir. 2000).

9 defendant’s substantial rights.14 It bears emphasizing that

determining both that a plain error occurred and that this affected

a defendant’s substantial rights is a very high hurdle for Derden

to surmount, and that such errors “should be corrected on appeal

only if they ‘seriously affect the fairness, integrity, or public

reputation of judicial proceedings.’”15

2. No Plain Error in District Court’s Use of Cross- Referenced Section.

The district court determined Derden’s base offense level

under § 2D1.1 of the Guidelines, which was cross-referenced by §

2D1.13, the section that was directly applicable to Derden.

Section 2D1.13(c)(1) instructs the sentencing court to use § 2D1.1

if “the offense involved unlawfully manufacturing a controlled

substance, or attempting to manufacture a controlled substance

unlawfully” and the application of § 2D1.1 would result in a higher

offense level.16 In this case, application of § 2D1.13 resulted in

a base offense level of only 12, but the application of § 2D1.1

produced a base offense level of 26. Therefore, the district court

used the latter.

Derden now claims that the district court erred in applying

the cross-referenced § 2D1.1, because he was caught only attempting

14 United States v. Vital,

(5th Cir. 1995). 15 United States v. Calverley,

(5th Cir. 1994) (en banc) (quoting United States v. Atkinson,

(1936)). 16 U.S.S.G. § 2D1.13(c)(1).

10 to steal anhydrous ammonia. He argues that § 2D1.13(c)(1) and its

commentary require completion of “the intended offense [of]

attempting to manufacture the methamphetamine with the anhydrous

[ammonia] that [Derden] tried, but failed, to obtain.”

This argument is without merit. First, Derden has offered

nothing to show obvious or clear error in the district court’s

acceptance of the PSR or in the government’s argument that the

instant offense was part of Derden’s ongoing scheme to manufacture

and distribute methamphetamine. Second, Derden pleaded guilty to

stealing and possessing anhydrous ammonia with intent to

manufacture methamphetamine. This is an offense that falls within

the ambit of the plain wording of § 2D1.12(c)(1), which mandates

that the district court use § 2D1.1 when the “offense involves...

attempting to manufacture a controlled substance.”17 Third, and

most important, Derden is asking us to review a factual

determination of the district court —— that Derden was engaged in

an ongoing scheme of manufacturing and distributing drugs —— yet,

as we have held before, “questions of fact capable of resolution by

the district court upon proper objection at sentencing can never

constitute plain error.”18 Thus, even assuming arguendo that we

could determine that the district court committed an obvious or

17 Section 2D1.1(c)(1) (emphasis added). 18 Unites States v. McCaskey,

(5th Cir. 1993) (quoting United States v. Lopez,

(5th Cir. 1991)). See also Vital,

(quoting same).

11 clear error, we would nevertheless be precluded from revisiting the

court’s finding under this standard of review.

III. CONCLUSION

For the foregoing reasons, Derden’s sentence is AFFIRMED.

12