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United States Court of Appeals
Fifth Circuit
F I L E D
December 19, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III

Clerk
No. 03-40636
Summary Calendar

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID KEITH BRUMMETT,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
--------------------
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:
David Keith Brummett appeals from his 70-month sentence
following his guilty-plea conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Brummett challenges the district court's determination at
sentencing that he was responsible not only for two firearms
charged in the indictment but also for two additional firearms
under relevant conduct. Finding no error, we affirm.
I.
On January 18, 2001, police executed a search warrant at
Brummett's home in connection with an investigation of a check

No. 03-40636
-2-
forging scheme. In addition to finding miscellaneous drug
paraphernalia, police discovered a .22 caliber Jennings pistol
and a 20 gauge Harrington & Richardson shotgun with a stock that
had been altered to shorten the overall length. Brummett, who
has two prior felony drug convictions, was indicted in counts one
and two, respectively, for possession of these firearms.
Brummett pleaded guilty to count one, and count two was
dismissed.
On July 11, 2001, police went to Brumett's residence as part
of an investigation into a methamphetamine laboratory. While
searching Brummett's apartment, police found a .40 caliber Ruger
handgun in a closet along with methamphetamine lab equipment. On
September 5, 2001, while using Brummett as a confidential
informant in a methamphetamine investigation, police discovered
an SKS assault rifle, a methamphetamine lab, and methamphetamine
in Brummett's motel room.
The district court held Brummett responsible under relevant
conduct for the Ruger handgun and the SKS assault rifle.
Applying the 2000 version of the sentencing guidelines, the
district court increased Brummett's offense level by one pursuant
to U.S.S.G. § 2K2.1(b)(1)(A) because the offense involved three
to four firearms and also increased the offense level by four
pursuant to § 2K2.1(b)(5) because the Ruger handgun and the SKS
assault rifle were possessed in connection with another felony
2

No. 03-40636
-3-
offense, namely the intent to manufacture and the manufacture of
methamphetamine. Applying these enhancements, the PSR determined
Brummett's guideline range to be 63 to 78 months. Overruling
Brummett's objections, the district court adopted the findings of
the PSR and sentenced Brummett to 70 months in prison and three
years of supervised release. Brummett timely appeals.
II.
Brummett challenges the enhancements applied under both
U.S.S.G. § 2K2.1(b)(1)(A) and § 2K2.1(b)(5) on the same basis.
Brummett argues that the district court's relevant conduct
determination and specific offense characteristic enhancements
were erroneous because his possession of the Ruger handgun and
the SKS assault rifle were not part of the same scheme or plan
as the offense of conviction, which occurred on January 18, 2001,
and were not charged in the indictment. He contends that such
extraneous offense conduct should not be used to enhance a
sentence in a felon-in-possession case, and he asserts that the
conduct was too remote in time from the offense of conviction to
warrant the increase in his offense level.
A district court's application of the sentencing guidelines
is reviewed de novo, and its findings of fact are reviewed for
clear error. United States v. Stevenson, 126 F.3d 662, 664 (5th
Cir. 1997). A district court may consider non-adjudicated
offenses (offenses for which the defendant has neither been
3

No. 03-40636
-4-
charged nor convicted) that occur after the offense of
conviction, provided they constitute "relevant conduct" under
U.S.S.G. § 1B1.3. United States v. Vital, 68 F.3d 114, 118 (5th
Cir. 1995).
Relevant conduct includes offenses that are part of the same
course of conduct or common scheme or plan as the offense of
conviction. Id.; see § 1B1.3(a)(2). "For two or more offenses
to constitute part of a common scheme or plan, they must be
substantially connected to each other by at least one common
factor, such as common victims, common accomplices, common
purpose, or similar modus operandi." § 1B1.3, comment. (n.9(A)).
"Offenses that do not qualify as part of a common scheme or plan
may nonetheless qualify as part of the same course of conduct if
they are sufficiently connected or related to each other as to
warrant the conclusion that they are part of a single episode,
spree, or ongoing series of offenses." Id., comment. (n.9(B)).
The determining factors are "the degree of similarity of the
offenses, the regularity (repetitions) of the offenses, and the
time interval between the offenses." Id. A district court's
determination of relevant conduct is reviewed for clear error.
United States v. Solis, 299 F.3d 420, 461 (5th Cir. 2002).
In a case with facts similar to those present here, the
Seventh Circuit upheld the district court's findings of relevant
conduct and enhancement determinations under § 2K2.1(b)(1) where
4

No. 03-40636
-5-
a defendant had possessed an uncharged assault rifle along with
two other weapons "within a six to nine month period." United
States v. Santoro, 159 F.3d 318, 321 (7th Cir. 1998).
Similarly, the Tenth Circuit has held that a pattern of
possessing illegal firearms over a four to five month period is
sufficient to constitute the "same course of conduct." United
States v. Windle, 74 F.3d 997, 1000-01 (10th Cir. 1996); see also
United States v. Powell, 50 F.3d 94, 104 (1st Cir. 1995)(holding
that "the contemporaneous, or nearly contemporaneous, possession
of uncharged firearms is, in this circuit, relevant conduct in
the context of a felon-in-possession prosecution").
As the district court found, Brummett possessed four
firearms on three separate occasions within a nine month period.
He possessed all four firearms after a felony conviction.
Brummett's pattern of behavior of possessing firearms was similar
and regular, and the time period between the offenses permits a
conclusion that the firearms possessions were part of an ongoing
series of offenses. Santoro, 159 F.3d at 321; Windle, 74 F.3d at
1000-01; see § 1B1.3, comment. (n.9(B)).
III.
The district court did not err in its conclusion that all
instances of firearm possession set forth in the PSR were
relevant conduct in relation to Brummett's offense of conviction.
5