Sentencing — relevant conduct

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U.S. Court of Appeals for the 7^th Circuit

Criminal

Sentencing — relevant conduct

In sentencing a defendant for a 2010 drug conspiracy, it was error to include drug transactions from 2008 as relevant conduct.

“The 2008 conduct was not part of the same course of conduct as the 2010 drug conspiracy to which Purham pled guilty. To determine whether two acts are part of the same course of conduct, we look for ‘a strong relationship between the uncharged conduct and the convicted offense, focusing on whether the government has demonstrated … significant similarity, regularity, and temporal proximity.’ United States v. Bacallao, 149 F.3d 717, 719 (7th Cir. 1998). The government did not make the required demonstration here. A gap longer than a year stretches between the purportedly relevant conduct, which occurred before Purham went to jail in August 2008, and the offense of conviction, which began in July 2010. Where a temporal gap like this exists, we require ‘a stronger showing regarding the other course of conduct factors, such as regularity and similarity of acts.’ United States v. Ortiz, 431 F.3d 1035, 1041 (7th Cir. 2005). The PSR and the testimony at sentencing did not include sufficient information to support such a showing. In 2008, Purham did transport crack cocaine from Chicago to Quincy. But that is the only similarity we can discern between the 2008 and 2010 conduct. The 2008 transactions generally involved much larger amounts of cocaine than the 2010 transactions. And although the PSR makes clear that the Purhams used Amtrak during the charged offense, there are no details about the mode of transit used for the 2008 conduct. Testimony at Purham’s sentencing hearing did not expand upon the meager PSR details.”

Reversed and Remanded.

13-2916 U.S. v. Purham

Appeal from the United States District Court for the Central District of Illinois, Myerscough, J., Kanne, J.