Unpublished Disposition, 934 F.2d 325 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 934 F.2d 325 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Craig Leevon MYLES, Defendant-Appellant.

No. 90-30004.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 11, 1990.* Decided May 31, 1991.

Before CANBY, KOZINSKI and TROTT, Circuit Judges.


Appellant Craig Leevon Myles appeals his sentence imposed after he pleaded guilty to possession with intent to distribute more than five grams of cocaine. Myles claims that the district court erred in: (1) considering quantities of drugs related to a dismissed charge in setting his base offense level; (2) finding that the defendant's conduct on July 22 and August 8, 1988 was part of the same course of conduct or common scheme; (3) relying on evidence without a sufficient factual basis; and (4) failing to make findings of fact as to challenged portions of the presentence report.


1. Consideration of evidence from dismissed count in the indictment

The trial court did not err in considering the 28 grams of cocaine involved in the dismissed charges to increase Myles' base offense level. Because the trial court found that the count of conviction and the dismissed counts were part of the same course of conduct, the court could consider quantities of drugs involved in the dismissed counts as part of the relevant conduct. U.S.S.G. Sec. 1B1.3(a) (2); United States v. Turner, 898 F.2d 705, 710 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990).

2. Determination that Myles' conduct on July 22, 1988 and August 5, 1988, was same course of conduct.

After his July 22 arrest at the Humboldt Street residence, Myles admitted that the residence was a safehouse for cocaine and also admitted to being in "the business" for the money. Nonetheless, Myles disputes the trial court's finding that his arrest two weeks later at the same house and in possession of cocaine, constituted the same course of conduct.

The district court's finding that Myles' actions were part of the same course of conduct or common scheme was not clearly erroneous. United States v. Wills, 881 F.2d 823, 825 (9th Cir. 1989). The dismissed charges--possession and distribution of cocaine--involved conduct which was similar in character. The conduct occurred in the same house, within two weeks of the offense of conviction and involved the same type of narcotics. See United States v. Gooden, 892 F.2d 725, 728-29 (8th Cir. 1989), cert. denied sub nom Keener v. United States, 110 S. Ct. 2594 (1990).

3. Reliance on contested portions of the presentence report in determining sentence.

The trial court may rely on police reports in making factual determinations. See United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988). We conclude that there was sufficient evidence presented in the police reports for the trial court to find that Myles was in possession of a firearm and that the cocaine found at the Humboldt Street residence weighed 28 grams.

4. Failure to make or attach findings of fact regarding contested portions of the presentence report.

Although Myles argues that the trial court failed to make findings of fact regarding challenged portions of the presentence report, he agreed with the district court at sentencing that there were no factual disputes and that factual findings were not required. Myles' real argument appears to be that the police reports were insufficient to support the district court's factual determinations. As indicated above, we reject that contention.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3