13-year-old Transaction Properly Considered Relevant Conduct

US v. Damato, 2012 WL 561018, No. 10-3191 (10th Cir. 2/22/12) (published): Mr. Damato appealed the inclusion as relevant conduct of drugs involved in a drug transaction that occurred 13 years before the offense of conviction. The Tenth broadly discusses relevant conduct for purposes of the guidelines. The government argued only that the transaction was part of the “same course of conduct” as the offense of conviction under USSG § 1B1.3(a)(2). The Court says no, the gap was too great and there was no strong evidence of similarity or regularity. However, on its own, the Court says that the prior transaction qualifies as relevant conduct because it was part of a “common scheme or plan” featuring common co-conspirators who worked together to receive drugs from SoCal. The Court’s opening for this holding was that the defendant acknowledged in his opening brief that the district court failed to identify which theory it had applied. In that situation apparently, the district court can be right for any reason. In other issues, the sentencing court properly found Damato was a leader/organizer, and the sentence was reasonable.