United States v. Hodge

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

DALE MCCOURTNEY HODGE, a/k/a  No. 02-4430

Dedan Kimathi Wilson, a/k/a Keith

Jackson,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry Coke Morgan, Jr., District Judge.

(CR-01-233)

Argued: October 30, 2003

Decided: January 6, 2004

Before WILKINS, Chief Judge, and NIEMEYER and

SHEDD, Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkins wrote the opin-

ion, in which Judge Niemeyer and Judge Shedd joined.

COUNSEL

ARGUED: James Orlando Broccoletti, ZOBY & BROCCOLETTI,

P.C., Norfolk, Virginia, for Appellant. James Ashford Metcalfe,

Assistant United States Attorney, Norfolk, Virginia, for Appellee. ON

BRIEF: Paul J. McNulty, United States Attorney, Norfolk, Virginia,

for Appellee.

2 UNITED STATES v. HODGE

OPINION

WILKINS, Chief Judge:

Dale McCourtney Hodge appeals his convictions and sentence for

possession of a firearm and ammunition by a convicted felon, see 18

U.S.C.A. § 922(g)(1) (West 2000), and possession of cocaine with the

intent to distribute, see 21 U.S.C.A. § 841(a)(1) (West 1999). Finding

no error, we affirm.

I.

In 1996, two police officers from New York State, Detectives

Andre Collins and Russell McCormick, met Hodge during an under-

cover drug investigation. During three separate transactions in Janu-

ary 1996, Collins purchased cocaine base from Hodge for a total price

of $3,300. Hodge was indicted on New York state charges, and an

arrest warrant was issued. At that time, however, officers were unable

to locate Hodge to execute the warrant.

Eventually, Collins learned that Hodge was living in Newport

News, Virginia, under the alias Dedan K. Wilson. Collins subse-

quently met several times with an informant who claimed to have

more information about Hodge. The informant told Collins during the

week of June 21, 1999 that Hodge had previously lived in Newport

News but had moved to Suffolk, Virginia, to an apartment registered

in a woman’s name. The informant also related the number of the

telephone located at the apartment. The informant told Collins that

Hodge regularly traveled up and down the East Coast trafficking in

narcotics; had no legal means of income; drove a dark green Jeep that

had a secret compartment to hide drugs and firearms; kept large sums

of cash in his closet; used the aliases Keith Jackson and Dedan Wil-

son; was generally armed; and planned to be in Mt. Vernon, New

York on June 24, 1999 and to return to Virginia three days later.

On June 29, 1999, Collins, McCormick, and their supervisor trav-

eled to Newport News, where they learned that the phone number

provided by the informant was assigned to "G. Henry" at a particular

UNITED STATES v. HODGE 3

address in Suffolk, Virginia. Collins called the number and recog-

nized Hodge’s voice on the answering machine. Police officers from

New York and Virginia then began surveillance at the Suffolk address

on June 30, 1999. The next day, officers saw a dark green Jeep parked

outside. Lieutenant Timothy Davenport of the Suffolk Police Depart-

ment checked Department of Motor Vehicle records and learned that

the vehicle was registered to Keith Jackson of Virginia Beach.

In an effort to trick Hodge into coming to the door, officers staged

a fake traffic accident involving the Jeep and approached the apart-

ment. However, as uniformed officers approached the door, Daven-

port and McCormick saw a man—whom McCormick recognized as

Hodge—flee from the back of the apartment. The officers gave chase,

but Hodge escaped.

Collins and another officer returned to the apartment and noticed

that the sliding glass door was open. After determining that an

Anthony Brooks was inside, they entered the apartment "to clear and

secure it and to talk to" Brooks. J.A. 104. Brooks told the officers that

he rented a room from Keith Jackson.

Based on the information the officers had compiled, Davenport and

Collins then obtained a state search warrant for the apartment and the

Jeep. When executing the warrant, officers recovered Hodge’s New

York driver’s license bearing his photograph as well as numerous

items tending to show that Hodge, Wilson, and Jackson were the

same person. Other items seized during a search of the apartment

included two cellular telephones, digital scales bearing cocaine resi-

due, a loaded Ruger 9mm semi-automatic pistol and spare ammuni-

tion, an electronic money counting machine, $2,062 in $1 bills, and

$46,590 in a plastic bag within a safe. Inside a hidden compartment

within the Jeep, officers recovered $200 in cash, two vials containing

a total of 1.2 grams of marijuana, and a plastic bag containing 168

grams of cocaine.

Hodge was subsequently arrested in New York and released on

bond. After failing to appear on the New York charges, he was

arrested on Virginia charges in April 2000. A federal grand jury

named Hodge in a three-count indictment, charging him with posses-

sion of a firearm and ammunition by a convicted felon ("Count One"),

4 UNITED STATES v. HODGE

possession of cocaine with the intent to distribute ("Count Two"), and

possession of a firearm in furtherance of a drug trafficking crime

("Count Three").

Hodge moved unsuccessfully to suppress the evidence seized dur-

ing the execution of the search warrant on the ground that the warrant

was not supported by probable cause. Following a jury trial, Hodge

was found guilty of Counts One and Two; a mistrial was declared on

Count Three. The district court sentenced Hodge to 120 months

imprisonment on Count One and 324 months on Count Two, to be

served concurrently.

II.

Hodge first argues that the district court erred in refusing to sup-

press the evidence obtained from execution of the search warrant. We

disagree.

The Fourth Amendment provides in pertinent part that "[t]he right

of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated."

U.S. Const. amend. IV. "This fundamental right is preserved by a

requirement that searches be conducted pursuant to a warrant issued

by an independent judicial officer." California v. Carney, 471 U.S.

386, 390 (1985). Although we review de novo the denial of the

motion to suppress by the district court, the determination of probable

cause by the issuing magistrate is entitled to great deference from this

court. See United States v. Wilhelm, 80 F.3d 116, 118-19 (4th Cir.

1996). Thus, "the duty of a reviewing court is simply to ensure that

the magistrate had a substantial basis for concluding that probable

cause existed." Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (alter-

ations & internal quotation marks omitted).

As the Supreme Court has noted, "probable cause is a fluid concept

—turning on the assessment of probabilities in particular factual

contexts—not readily, or even usefully, reduced to a neat set of legal

rules." Id. at 232. Although noting that probable cause is not suscepti-

ble to precise definition, the Supreme Court has described it as "exist-

ing where the known facts and circumstances are sufficient to warrant

a man of reasonable prudence in the belief that contraband or evi-

UNITED STATES v. HODGE 5

dence of a crime will be found." Ornelas v. United States, 517 U.S.

690, 696 (1996); see also Gates, 462 U.S. at 238 (explaining that a

probable cause inquiry involves a determination of "whether, given

all the circumstances . . . , there is a fair probability that contraband

or evidence of a crime will be found in a particular place"). And, in

order to establish probable cause for the issuance of a search warrant

based in part on an informant’s hearsay, it is necessary to consider

"all the circumstances set forth in the affidavit . . . , including the

‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay

information." Gates, 462 U.S. at 238. The degree to which an infor-

mant’s story is corroborated may also be an important factor. See

United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993).

Here, the search warrant application was prepared by Lieutenant

Davenport, and it relied primarily on information provided by Collins.

The application described Collins’ informant as having "provided

information to Det. Andre Collins in the past that has been co[r-

ro]borated and found to be accurate by Det. Collins." J.A. 102. It

recited the informant’s allegations of Hodge’s criminal activity as

well as the officers’ confirmation of the facts that Hodge and Jackson

were the same person, that Hodge drove a dark green Jeep, and that

Hodge had the phone number that the informant had provided. It also

reported that Hodge had fled from his apartment when the officers

approached after staging the traffic accident.

Hodge correctly notes that the affidavit underlying the warrant

gave no indication of how the informant claimed to know about

Hodge’s criminal activity and that it did not describe the nature or

amount of correct information the informant had supplied in the past.

This point notwithstanding, the present case is controlled by our deci-

sion in United States v. Porter, 738 F.2d 622 (4th Cir. 1984) (en

banc), in which we concluded, on facts less favorable to the govern-

ment, that probable cause existed.

In Porter, an anonymous informant alerted authorities on a Satur-

day that a person named Penny Porter was flying from Washington

National Airport to Miami that evening and would be returning with

cocaine. See Porter, 738 F.2d at 623. The informant reported that Por-

ter was a black woman between 5′3″ and 5′7″ and between 115 and

125 pounds, with long brown hair, wearing a brown leather coat and

6 UNITED STATES v. HODGE

a red miniskirt, and carrying a large gold-colored purse. See id. The

informant also provided information, not described in the record, con-

cerning a person other than Porter. See id. A police detective con-

firmed that a "T. Porter" had flown out of National Airport to Miami

that evening and also confirmed the information concerning the other

person. See id.

Two days after the original tip, the anonymous informant contacted

authorities and stated that Porter would be flying back into Washing-

ton that afternoon. See id. While watching passengers at National Air-

port disembarking on a flight from Miami at about 3:30 p.m., the

detective observed a woman matching the physical description pro-

vided by the informant and wearing a brown leather coat. See id. The

detective did not see the miniskirt or the gold purse. See id. at 624.

The woman was one of the last passengers off the plane, she appeared

nervous, and she watched the officer continuously as she walked. See

id. When the detective approached her, the woman identified herself

as "Teresa Porter" and said that she was flying in from Miami. See

id. We held that, based on the evidence in his possession at that time,

and in particular, the amount of informant information he had been

able to corroborate, the detective had probable cause to arrest Porter.

See id. at 625-26.

A comparison of the information in the detective’s possession in

Porter with that available to the magistrate here demonstrates that

probable cause supported issuance of the warrant. To begin, the

amount of corroborated informant information in the two cases was

comparable. In Porter, although the informant had not predicted Por-

ter’s use of the name "Teresa Porter," the detective confirmed that a

person named Porter flew out of Washington National on the Satur-

day evening that the information was provided and that a woman who

had the same name and who fit the physical description provided by

the informant flew back from Miami on the following Monday after-

noon. The detective in Porter also confirmed that the subject was

wearing a brown leather jacket as the informant said she had been

wearing on her flight to Miami. In comparison, here, the officers con-

firmed that the informant correctly identified both Hodge’s real name

and the name he was using in Virginia. Cf. Lalor, 996 F.2d at 1581

(concluding that informant’s knowledge of defendant’s alias

increased reliability of informant’s information); United States v. Biz-

UNITED STATES v. HODGE 7

zard, 674 F.2d 1382, 1388 (11th Cir. 1982) (same). Law enforcement

also confirmed that Hodge had the phone number that the informant

had provided and drove a dark green Jeep. While it is of considerable

significance that the informant in Porter was able to predict future

actions by the subject of his information and the informant here made

no such predictions, see Gates, 462 U.S. at 245-46, the level of cor-

roboration of the two informants’ accounts was otherwise compara-

ble.

On the other hand, the relationship between the respective infor-

mants and law enforcement is more favorable to a probable cause

determination in the present case. While the informant in Porter was

anonymous, the warrant application here stated that the informant

"had provided information to . . . Collins in the past that [was] co[r-

ro]borated and found to be accurate." J.A. 102. Because "a proven,

reliable informant is entitled to far more credence than an unknown,

anonymous tipster," this difference is significant. United States v.

Bynum, 293 F.3d 192, 197 (4th Cir. 2002).

Finally, the facts discovered by law enforcement here, independent

of their corroborative value, were more suggestive of the criminal

activity alleged by the informant than were the facts in Porter. In Por-

ter, the detective had no information that Porter had any history of

criminal activity. And, a two-day trip to Miami is not especially

suspicious in itself, although it became more so when viewed in con-

junction with Porter’s nervous appearance. In comparison, the affida-

vit in the present case importantly recounted that Hodge "was wanted

on charges of distributing cocaine to Detective Collins during an

undercover operation." J.A. 103; see Bynum, 293 F.3d at 197 ("An

officer’s report in his affidavit of the target’s prior criminal activity

or record is clearly material to the probable cause determination. . . ."

(internal quotation marks omitted)). It is also significant that the affi-

davit stated that Hodge was using an assumed name and that Hodge

had recently fled the premises when officers had approached his

apartment, see Illinois v. Wardlow, 528 U.S. 119, 124 (2000)

("Headlong flight—wherever it occurs—is the consummate act of

evasion: It is not necessarily indicative of wrongdoing, but it is cer-

tainly suggestive of such.").

8 UNITED STATES v. HODGE

For all of these reasons, viewing the circumstances as a whole, we

conclude that the information possessed by the magistrate here more

strongly suggested that the informant’s criminal allegations were cor-

rect than did the information possessed by the detective in Porter.

Considering that we determined that probable cause existed in Porter,

we have little trouble concluding that the information in the affidavit

here provided at least a "substantial basis" for the magistrate’s proba-

ble cause determination. Gates, 462 U.S. at 238 (internal quotation

marks omitted). We therefore hold that the district court correctly

refused to suppress the fruit of the resulting search.1

III.

Hodge next contends that the district court erred in admitting evi-

dence of his 1996 drug transactions. We disagree.

Federal Rule of Evidence 404(b) provides that evidence of prior

bad acts may be admissible for purposes other than "to prove the

character of a person in order to show action in conformity there-

with." Such purposes include "proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or acci-

dent." Id. Evidence of prior bad actions is admissible under Rule

404(b) if the evidence is (1) relevant to an issue other than the general

character of the defendant; (2) necessary to prove an element of the

charged offense; and (3) reliable. See United States v. Queen, 132

F.3d 991, 997 (4th Cir. 1997). Additionally, the probative value of the

1

Hodge argues that Davenport’s affidavit did not support the probable

cause finding because the affidavit stated "that the officers had searched

the residence once already and found no evidence of a drug crime pres-

ent." Br. of Appellant at 11. In fact, the affidavit stated only that after

Hodge fled when the officers approached his apartment, "[t]hey entered

the residence to clear and secure it." J.A. 103-04. Nothing in the affidavit

suggested that the search the officers undertook was so thorough that it

would have revealed hidden evidence of drug trafficking.

Hodge also suggests that the affidavit was insufficient because it did

not explain why Detective Collins should be considered to be reliable.

However, statements of other law enforcement officers "are plainly . . .

reliable" even without any special showing. United States v. Ventresca,

380 U.S. 102, 111 (1965).

UNITED STATES v. HODGE 9

evidence must not be substantially outweighed by the danger that it

will cause unfair prejudice. See Fed. R. Evid. 403; Queen, 132 F.3d

at 997. Limiting jury instructions explaining the purpose for admitting

prior bad acts evidence and advance notice of the intent to introduce

such evidence provide additional protection to defendants. See Queen,

132 F.3d at 997. We review the admission of evidence for abuse of

discretion. See id. at 995.

Hodge does not challenge the reliability of the admitted evidence.

Rather, he contends that it was irrelevant, unnecessary, and unduly

prejudicial. We conclude, however, that the evidence of Hodge’s

1996 drug transactions was relevant and necessary in that it tended to

show the existence of a continuing narcotics business and therefore

to show Hodge’s knowledge of the drug trade and his intent to distrib-

ute the cocaine found in his Jeep. See United States v. Sanchez, 118

F.3d 192, 196 (4th Cir. 1997) (holding that a not-guilty plea places

defendant’s intent at issue, and evidence of similar prior crimes can

thus be relevant to prove intent to commit charged crime); United

States v. Clarke, 24 F.3d 257, 264-65 (D.C. Cir. 1994) (holding that

evidence that defendants had participated in several prior drug trans-

actions was properly admitted to establish defendant’s intent to dis-

tribute narcotics). We also conclude that the probative value of the

evidence was not substantially outweighed by the danger that it would

cause unfair prejudice. In light of the substantial evidence of drug

activity found in Hodge’s apartment and Jeep, and the evidence that

Hodge had used at least two aliases, we conclude that there was no

genuine risk that the testimony regarding the 1996 controlled drug

purchases would excite the jury to irrational behavior. Moreover, the

district court instructed the jury that "evidence of other crimes,

wrongs, or acts is not proof that [Hodge] committed the offenses as

alleged in the indictment. However, you may consider such evidence

in determining motive, opportunity, intent, preparation, plan, knowl-

edge, identity, or absence of mistake or accident." J.A. 377. We there-

fore conclude that the district court acted within its discretion in

admitting the evidence.

IV.

Laboratory analysis of the cocaine base Collins purchased from

Hodge in 1996 showed that the quantity totaled 163.1 grams. Over

10 UNITED STATES v. HODGE

Hodge’s objections, the district court included this quantity as rele-

vant conduct for purposes of calculating his sentencing guidelines

range. Hodge now argues that inclusion of this quantity was error,

maintaining that the 1996 drug transactions were not related to the

drug trafficking offense in Virginia and therefore could not be consid-

ered relevant conduct under U.S. Sentencing Guidelines Manual

§ 1B1.3 (2001). We disagree.

The sentencing guidelines establish that certain relevant conduct

may be considered in determining the guidelines range for a criminal

defendant. See generally U.S.S.G. § 1B1.3. When a defendant has

committed multiple offenses similar to the charged offense, all con-

duct that is "part of the same course of conduct or common scheme

or plan as the offense of conviction" constitutes relevant conduct.

U.S.S.G. § 1B1.3(a)(2). Application Note 9(B) states that offenses are

within the "same course of conduct" when "they are sufficiently con-

nected or related to each other as to warrant the conclusion that they

are part of a single episode, spree, or ongoing series of offenses."

Unlike "common scheme or plan," the concept of "same course of

conduct" does not require that acts be connected together by common

participants or by an overall scheme. See William W. Wilkins, Jr. &

John R. Steer, Relevant Conduct: The Cornerstone of the Federal

Sentencing Guidelines, 41 S.C. L. Rev. 495, 515 (1990). Rather, it

requires only that the defendant has engaged in an identifiable pattern

of certain criminal activity. See id. at 515-16. Significant factors used

to determine whether offenses are part of the same course of conduct

"include the degree of similarity of the offenses, the regularity (repeti-

tions) of the offenses, and the time interval between the offenses."

U.S.S.G. § 1B1.3, comment. (n.9(B)); see United States v. Pauley,

289 F.3d 254, 259 (4th Cir.) (explaining that to determine whether

conduct outside the count of conviction is part of the same course of

conduct, the sentencing court must consider several factors to decide

whether they indicate a pattern of behavior: "the nature of the defen-

dant’s acts, his role, and the number and frequency of repetitions of

[his] acts" (internal quotation marks omitted)), vacated in part on

reh’g, 304 F.3d 335 (4th Cir. 2002) (per curiam), cert. denied, 537

U.S. 1178 (2003). When one factor is absent, "a stronger presence of

at least one of the other factors is required." U.S.S.G. § 1B1.3, com-

ment. (n.9(B)); see Pauley, 289 F.3d at 259. We review an application

UNITED STATES v. HODGE 11

of this test by the district court for clear error. See Pauley, 289 F.3d

at 260.

In finding the 1996 drug transactions to be relevant conduct, the

district court stated,

There’s no evidence whatsoever that [Hodge] had any

gainful employment. . . .[2] There’s no evidence that he

worked in New York or anywhere else. There is evidence

that he dealt drugs, and even if he did work, that would not

suggest that he would have almost $48,000 in cash stashed

in this residence in Virginia.

As far as the relevancy of the sales in New York are con-

cerned, again, there’s no evidence that he did anything

except sell drugs from ’96 to ’99. And it does appear to the

court that that is part of the same regime or scheme or con-

duct. That’s what he was. He was a drug dealer. He was a

drug dealer in New York. He was a drug dealer in Virginia.

There’s evidence to indicate that he dealt drugs in other

places in between.

He fled New York to come to Virginia and to sell drugs

here, and to say that that’s totally unconnected is not persua-

sive to the court, and there’s no evidence to support it, so

the court also believes that the sales in New York are related

to the count of conviction in Virginia.

J.A. 462-63. Although it was not specifically articulated by the court,

it appears that the court concluded that the 1996 drug transactions and

the 1999 offense were part of the same course of conduct in that they

were part of the same "ongoing series of offenses." U.S.S.G. § 1B1.3,

comment. (n.9(B)). We conclude that this ruling was not clearly erro-

neous.

2

Hodge uses this sentence to argue that the district court improperly

placed the burden on him to prove that the 1996 drug buys were not rele-

vant conduct. However, we construe the sentence to refer merely to

Hodge’s failure to rebut Collins’ testimony that his informant told him

that Hodge "had no legal means of gaining income." J.A. 50.

12 UNITED STATES v. HODGE

The evidence of similarity of the uncharged conduct to the 1999

offense was neither especially strong nor especially weak. Although

the record here does not establish how Hodge obtained the cocaine

found in his Jeep, how he intended to distribute it, or whether he

intended to distribute it in powder or cocaine base form, both the

1996 sales and the 1999 offense related to Hodge’s continuing distri-

bution of a form of cocaine up and down the East Coast.3

As for regularity, the district court found that the 1996 transactions

and the 1999 offense were not isolated occurrences, but rather, part

of a continuous pattern of narcotics trafficking. Indeed, the record

strongly supported this finding. Detective Collins testified that his

informant gave him "detailed information regarding . . . Hodge travel-

ing from New York, Suffolk County, to Upstate New York, also

down to Virginia and North Carolina in the process of dealing drugs,

and that he had no legal means of gaining income." J.A. 50. Detective

Collins testified that Hodge’s drug business in Virginia was related to

the New York sales in that Collins "had received information that . . .

Hodge was selling cocaine on the Eastern Seaboard from Upstate

New York to Virginia, as well as North Carolina, transporting

cocaine." Id. at 168-69. Finally, Collins further testified based on "in-

formation from other police officers as well as a confidential infor-

mant that was 100 percent accurate in all the other detailed

information" that Hodge "never stopped dealing drugs" between 1996

and 1999. Id. at 433. This evidence, taken together, constituted a

strong showing of regularity.4 Cf. United States v. Uwaeme, 975 F.2d

3

We note that this level of similarity would not be sufficient, by itself,

to support a relevant conduct finding. Cf. United States v. Maxwell, 34

F.3d 1006, 1011 (11th Cir. 1994) ("We do not think that two offenses

constitute a single course of conduct simply because they both involve

drug distribution."); United States v. Crockett, 82 F.3d 722, 730 (7th Cir.

1996) ("The mere fact that the defendant has engaged in other drug trans-

actions is not sufficient to justify treating those transactions as ‘relevant

conduct’ for sentencing purposes.").

4

In contending that the court erred in counting the 1996 sales as rele-

vant conduct, Hodge relies on United States v. Hill, 79 F.3d 1477 (6th

Cir. 1996), in which the Sixth Circuit held that a district court erred in

including as relevant conduct a drug transaction that preceded the offense

of conviction by 19 months. See Hill, 79 F.3d at 1485. Hill is of little rel-

UNITED STATES v. HODGE 13

1016, 1019 (4th Cir. 1992) (explaining that at sentencing district court

may consider reliable hearsay in determining drug quantity). But see

United States v. Hahn, 960 F.2d 903, 911 (9th Cir. 1992) (stating

without explanation that "[w]hen regularity is to provide most of the

foundation for temporally remote, relevant conduct, specific repeated

events outside the offense of conviction must be identified").

In our view, the Government’s strong showing of regularity com-

pensated for the significant temporal gap between the 1996 uncharged

conduct and the 1999 offense of conviction, as well as for the absence

of a strong showing of similarity. See U.S.S.G. § 1B1.3, comment.

(n.9(B)) ("[W]here the conduct alleged to be relevant is relatively

remote to the offense of conviction, a stronger showing of similarity

or regularity is necessary to compensate for the absence of temporal

proximity."). The evidence here established that both the 1996 sales

and the 1999 offense were part of a pattern of narcotics trafficking

that never stopped between the uncharged conduct and Hodge’s com-

mission of the 1999 offense. Thus, the district court did not clearly

err in counting the 1996 sales as relevant conduct. See United States

v. Anderson, 243 F.3d 478, 485 (8th Cir. 2001) (affirming a finding

that cocaine-related transactions predating the charged conspiracy

were relevant conduct because the defendant was a career narcotics

trafficker); United States v. Geralds, 158 F.3d 977, 979 (8th Cir.

1998) (affirming finding that defendant’s possession of a quantity of

cocaine base was relevant conduct with respect to a powder cocaine

distribution offense that he committed 18 months later because both

offenses related to distribution of similar quantities of forms of

evance here, however, because there "the government did not introduce

evidence at the sentencing hearing to support a finding that [the defen-

dant] sold crack regularly, and the district court made no such finding."

Id. at 1480-81. Because of these factors, the panel refused to "presume

that [the defendant] made his living as a crack dealer during his period

of unemployment" and, thus, the panel "analyze[d] the relevant conduct

issue as two instances [of drug activity], approximately nineteen months

apart." Id. at 1481. Here, on the other hand, Detective Collins testified

that his informant had told him that Hodge continuously distributed nar-

cotics and had no legitimate job, and the district court therefore properly

analyzed Hodge’s conduct not as isolated conduct but as events in a reg-

ular pattern of narcotics trafficking.

14 UNITED STATES v. HODGE

cocaine, both involved defendant’s travel to St. Louis to acquire the

cocaine and return to southeast Missouri to distribute it, and both

were part of a regular pattern of drug distribution); United States v.

Richards, 27 F.3d 465, 468-69 (10th Cir. 1994) (affirming finding

that weekly heroin sales over four-month period were relevant con-

duct with respect to heroin trafficking offense occurring 17 months

later despite lack of evidence of the details of the prior sales); United

States v. Roederer, 11 F.3d 973, 978-80 (10th Cir. 1993) (affirming

finding that 1980-87 cocaine conspiracy was relevant conduct with

respect to 1992 cocaine distribution when defendant had continued to

distribute cocaine over the entire period); United States v. Burnett,

968 F.2d 278, 280-81 (2d Cir. 1992) (affirming finding that defen-

dant’s purchases of a total of three kilograms of cocaine were relevant

conduct with respect to purchase of over 22 pounds of marijuana from

different source several months later); United States v. Perdomo, 927

F.2d 111, 114-15 (2d Cir. 1991) (affirming finding that the defen-

dant’s participation in a cocaine transaction was relevant conduct with

respect to conspiracy to distribute cocaine several months later

despite differences in the defendant’s role in the transactions, the

quantities of cocaine, and the people with whom he was dealing,

because the "defendant’s continued involvement in the specified type

of criminal activity—cocaine trafficking—remains evident").

V.

For the foregoing reasons, we affirm Hodge’s convictions and sen-

tence.

AFFIRMED