USA v. Alfred McGowan, 06-1546.  Alfred McGowan appeals the 132-month sentence he received following his conviction for two counts of distributing cocaine. The two counts involved small, controlled-buy sales of cocaine to a woman named Christine Beu. The first sale, involving 7.2 grams, was on February 3, 2003. The second, which involved 4.9 grams, went down a month later, on March 3.

McGowan was originally charged with conspiracy to distribute cocaine.  Following a jury trial, McGowan was convicted on the conspiracy count.   After the trial, the district judge granted McGowan’s motion for judgment of acquittal on the conspiracy count.

On the charges upon which he was convicted, McGowan’s base offense level under the sentencing guidelines was 12. Given his criminal history category as determined by the judge, that yielded a sentencing range of 27 to 33 months. But, relying on a ton of perceived "relevant conduct," the judge concluded that the proper offense level was 26. This finding jacked up McGowan’s guideline range to 110 to 137 months. McGowan contends on appeal that the judge’s reliance on way too much "relevant conduct" constituted clear error.

The two sales to co-defendant Beu involved only 12.1 grams of cocaine. Yet, in a clear tail-wagging-the-dog situation, relying primarily on his alleged dealings with snitch Corral, McGowan’s "relevant" conduct was found to be at least 489 grams more. This result is problematic on the basis of the record as we see it.

Relevant conduct can be used to enhance a defendant’s sentence if it is part of the same course of action or common scheme or plan that gave rise to the defendant’s conviction. Relevant conduct must be established by a preponderance of the evidence. United States v. Johnson, 342 F.3d 731, 733 (7th Cir. 2003); United States v. Ofcky, 237 F.3d 904, 907 (7th Cir. 2001).

Courts look for "a strong relationship between the uncharged conduct and the convicted offense, focusing on whether the government has demonstrated a significant similarity, regularity and temporal proximity.’ " United States v. Ortiz, 431 F.3d 1035, 1040 (7th Cir. 2005). And conduct for which the defendant has been acquitted can be considered, but only if it is part of the same course of conduct or common scheme or plan. United States v. Masters, 978 F.2d 281, 285 (7th Cir. 1992); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991).

The Seventh Circuit concludes that the government has not met its burden here.  There is an 8-month gap between McGowan’s last dealings with Corral in June of 2002 and the specific sales he made to Beu in February and March of 2003.

This gap is long enough to cast doubt on the relevance of the earlier conduct. See United States v. Ortiz, 431 F.3d at 1041; United States v. Sykes, 7 F.3d 1331, 1337 (7th Cir. 1993). And without temporal proximity on its side, "the government needs a stronger showing regarding the other course of conduct factors, such as regularity or similarity of acts." Ortiz, 431 F.3d at 1041. The government did not make this showing.

In short, the fact that a defendant engages in other drug transactions is not, standing alone, sufficient justification for treating those transactions as part of the same course of conduct or common scheme or plan when making a relevant conduct determination.  United States v. Crockett, 82 F.3d 722, 730 (7th Cir. 1996).  Nor did the district court make any independent findings connecting McGowan’s alleged purchases from snitch Corral with the co-defendant Beu sales for which McGowan was convicted. See United States v. Bacallao, 149 F.3d 717, 721 (7th Cir. 1998).

For these reasons, the Seventh Circuit finds that the rather significant enhancement based on relevant conduct on this record cannot stand.  Thus, the Seventh Circuit VACATEs the sentence imposed on Mr. McGowan and REMANDs the case to the district court for resentencing.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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