Expansion of "relevant conduct" in McGee

US v. McGee:  Randall McGee pleaded guilty to possession with intent to distribute oxycodone and received a sentence of 55 months.  At sentencing, the district court increased Mr. McGee’s sentencing range to include as “relevant conduct” a seizure of cash that occurred two weeks prior to his arrest in this case.  Mr. McGee had previously been stopped by police at the Charleston, West Virginia bus station, where he was discovered to be in possession of nearly $6k in cash.  Though Mr. McGee was not arrested as a result of his bus station encounter with police, the police determined that Mr. McGee “did not have a reasonable explanation for his possession of the cash” when they asked where the unemployed Mr. McGee got the money.

Approximately two weeks later, Mr. McGee sat in the passenger seat of a rental car stopped by Charleston police for an allegedly malfunctioning middle brake light.  Police search Mr. McGee, who reportedly appeared nervous and had shaky hands.  The police discovered a bag in his shorts containing nearly 400 pills.  Mr. McGee moved to suppress the drugs seized during the traffic stop in two separate hearings:  the first questioning the probable cause to believe a traffic violation occurred; and the second, for newly obtained evidence. An investigation into the condition of the rental car tended to show that all the brake lights were operational and there was no record of any repairs after the traffic stop to the vehicle.  The district court held that while a serious factual issue was raised, it was ultimately not sufficient to overcome the police officer’s “unwavering” testimony that the light was non-operational.

On appeal, Mr. McGee challenged the procedural reasonableness of his sentence, specifically the inclusion in his offense conduct the earlier incident at the bus station, arguing that there was no evidence to connect the funds to the traffic stop in the instant case.  Also, Mr. McGee challenged the denial of his motion to suppress.  Last, Mr. McGee challenged the lack of individualized assessment in his sentence, that he was wrongly placed by the court in a class of individuals, i.e., drug dealers from Detroit, and sentenced him on that basis.

The panel found that “although McGee’s evidence that the brake light was not inoperative is significant, it is nonetheless circumstantial,” and the defense failed to show that the district court erred in its denial of the motion to suppress.  The panel also held that the incidents of seizure here, the cash and later, the pills, were “more likely than not” part of the “same course of conduct” for sentencing enhancement purposes.  Finally, while some of the district court’s comments on Mr. McGee’s sentence “evince a perilously close flirtation” with error, the panel concluded that the district court did not abuse its discretion.