Temporal Proximity and Similarity, Without Regularity, Can Establish Relevant Conduct for Drug Trafficking (5th Cir. Unpublished)

Case: United States v. Griffin, No. 24-50247 (5th Cir. Sept. 11, 2025) (unpublished)

Court: United States Court of Appeals for the Fifth Circuit

Panel: Jones, Graves, Circuit Judges; Rodriguez, District Judge (by designation)

Disposition: Sentence affirmed

Note: Pursuant to 5th Cir. R. 47.5, the opinion is unpublished and is not precedent except under the limited circumstances set forth in Rule 47.5.4. It may nonetheless be cited for its persuasive value.

Introduction

This appeal addresses a recurring—and often outcome-determinative—sentencing question in federal drug cases: when may a separate, unadjudicated drug incident be treated as “relevant conduct” to the offense of conviction under U.S.S.G. § 1B1.3? In an unpublished opinion, the Fifth Circuit affirmed the district court’s finding that a second methamphetamine possession eight months after the charged offense constituted relevant conduct, even though there was no proof of regular, continuous drug activity between the two events and no common scheme or plan.

Defendant–Appellant Jeffrey Jerome Griffin pled guilty (without a plea agreement) to possession with intent to distribute at least 500 grams of methamphetamine arising from a June 2021 hotel-room seizure in Killeen, Texas. In February 2022—two days after a grand jury indicted him for the hotel incident—law enforcement searched his residence and found 76.5 grams of methamphetamine, multiple firearms, ammunition, and paraphernalia; Griffin admitted the drugs and guns were his.

The district court treated the February 2022 conduct as relevant to the June 2021 offense, applied a two-level firearm enhancement, and concluded that Griffin was ineligible for both the safety-valve reduction and the two-level “zero-point offender” reduction. It imposed a within-Guidelines sentence of 121 months. Griffin’s central appellate claim was that the February 2022 incident was neither part of a common scheme or plan nor the same course of conduct as the offense of conviction and therefore could not be used to enhance his sentence and strip him of reductions.

Summary of the Opinion

The Fifth Circuit affirmed, holding there was no clear error in the district court’s finding that the February 2022 possession of methamphetamine was part of the “same course of conduct” as the June 2021 offense. The court:

• Rejected “common scheme or plan” as a basis, finding the record did not show common victims, accomplices, or a distinctive modus operandi beyond a generic “purpose to sell.”
• Affirmed on “same course of conduct,” emphasizing:
  • Strong temporal proximity (eight months, within the one-year benchmark repeatedly upheld in Fifth Circuit authority).
  • Meaningful similarity (same drug—methamphetamine—in the same geographic area with distribution-level quantities and multiple people present).
  • No evidence of regularity; however, under the Fifth Circuit’s multi-factor framework, strong temporal proximity and similarity can outweigh the absence of regularity.
• Concluded that, once treated as relevant conduct, the firearms possessed in February 2022 were “in connection with the offense,” supporting:
  • A two-level enhancement under § 2D1.1(b)(1).
  • Disqualification from the safety valve.
  • Disqualification from the § 4C1.1 zero-point offender reduction.

On the record presented, the district court’s view was “plausible,” which suffices under deferential clear-error review. The sentence was therefore affirmed.

Detailed Analysis

1) Precedents and Guideline Framework

Guideline anchor: § 1B1.3(a)(2) (Relevant Conduct in drug cases). For drug trafficking offenses, relevant conduct includes acts “part of the same course of conduct or common scheme or plan as the offense of conviction.” The Fifth Circuit uses a two-track analysis:

• Common scheme or plan. Requires substantial connection via common victims, accomplices, purpose, or similar modus operandi. See United States v. Nava, 957 F.3d 581, 585 (5th Cir. 2020); United States v. Ortiz, 613 F.3d 550, 557 (5th Cir. 2010) (a generic shared “purpose” to sell drugs is insufficient).
• Same course of conduct. Evaluated by three non-exclusive factors:
  • Temporal proximity between offenses;
  • Similarity of offenses (e.g., drug, source, method, destination, accomplices);
  • Regularity (evidence of repeated, patterned conduct).
  Weakness in one factor can be offset by strength in others. Nava, 957 F.3d at 586–87 (cleaned up).

Temporal proximity. The Fifth Circuit has repeatedly treated intervals approaching a year as close enough to support a course-of-conduct finding. See United States v. Lopez, 70 F.4th 325, 329 (5th Cir. 2023) (one year supports course-of-conduct); United States v. Ocana, 204 F.3d 585, 590 (5th Cir. 2000) (seven months is “close temporal proximity”). Here, only eight months separated the events.

Regularity. This factor asks whether there is a “regular, i.e., repeated, pattern” linking the offenses. United States v. Rhine, 583 F.3d 878, 890 (5th Cir. 2009). The court contrasted cases showing a “continuous stream of drug activity,” such as United States v. Bourrage, 138 F.4th 327, 356 (5th Cir. 2025), with Griffin’s record, which lacked evidence of intervening transactions. Importantly, the court refused to infer regularity from the mere fact that Griffin had been briefly considered for cooperation—there was no record evidence of what he did (or did not do) between the two dates.

Similarity. Similarity focuses on distinctive characteristics—drug type, source, method, location, accomplices—that signal a single course rather than unrelated events. See United States v. Wall, 180 F.3d 641, 646 (5th Cir. 1999); United States v. Rangel, 149 F. App’x 254, 258 (5th Cir. 2005). In Griffin, the court found meaningful overlap: the same drug (methamphetamine), distributable quantities, the same city (Killeen), and the presence of multiple people. The court further cited United States v. Anguiano, 27 F.4th 1070, 1074 (5th Cir. 2022), and United States v. Dickey, 102 F.3d 157, 160 n.3 (5th Cir. 1996), to support the inference that 76.5 grams is a distribution-level amount, not consistent with personal use.

Nava as the key analogue. The court relied heavily on Nava, where it affirmed a relevant-conduct finding based on “robust temporal proximity and evidence of similarity” despite differences in drug type and trafficking rings. Nava, 957 F.3d at 587–88. The panel observed that Griffin’s case presented stronger similarity than Nava because both incidents involved the same drug.

Contrasts with defense-favorable precedents. The court distinguished cases where all three course-of-conduct factors were weak or missing: Rhine, 583 F.3d at 891; Wall, 180 F.3d at 647; United States v. Miller, 179 F.3d 961, 966–67 (5th Cir. 1999); and United States v. Culverhouse, 507 F.3d 888, 897 (5th Cir. 2007). Those reversals turned on remoteness in time, lack of similarity, and lack of regularity—conditions not present here given the eight-month gap and same-drug similarity.

Standard of review. The court underscored the deference owed to the district court’s factual findings: relevant-conduct determinations are reviewed for clear error and are affirmed if “plausible in light of the record as a whole.” See United States v. Schultz, 88 F.4th 1141, 1143 (5th Cir. 2023); United States v. Lopez, 70 F.4th at 328; United States v. Burns, 526 F.3d 852, 859 (5th Cir. 2008); United States v. Torres-Magana, 938 F.3d 213, 216 (5th Cir. 2019).

2) The Court’s Legal Reasoning Applied to Griffin

• No “common scheme or plan.” The government’s assertion that both events shared a “common purpose” to sell methamphetamine was insufficient under Ortiz. There were no common accomplices, victims, or a distinctive modus operandi connecting the two incidents across time and place.
• “Same course of conduct” satisfied. The court balanced:
  • Temporal proximity: Eight months falls comfortably within the Fifth Circuit’s accepted window (Lopez; Ocana).
  • Similarity: Same drug; distribution-quantity amounts; same city; multiple people present. The panel deemed it “plausible” to infer intent to distribute in both incidents, citing Anguiano and Dickey to show that 76.5 grams is indicative of distribution, not mere personal use.
  • Regularity: Absent. But the Fifth Circuit’s framework permits strong temporal and similarity showings to compensate for a lack of proof of intervening transactions (Nava; United States v. Gremillion, 15 F.3d 1079 (5th Cir. 1994) (per curiam)).
• Resulting Guideline consequences. Treating the February 2022 incident as relevant conduct enabled:
  • The § 2D1.1(b)(1) two-level firearm enhancement (based on firearms possessed “in connection with” the relevant conduct).
  • Disqualification from the safety valve (which requires, among other things, that the defendant did not possess a firearm “in connection with the offense”).
  • Disqualification from the § 4C1.1 zero-point offender decrease (which is unavailable where the instant offense “involved” a firearm).

Bottom line: The PSR’s inclusion of the February 2022 drugs and firearms—over defense objection—raised the total offense level and eliminated multiple mitigating reductions, producing a Guideline range of 121–151 months. The district court imposed 121 months. Without the February 2022 relevant conduct, the court observed that Griffin would have had a total offense level of 26 and a 63–78 month range, with no mandatory minimum (via safety valve). The inclusion thus drove both the applicable range and exposure to the 10-year mandatory minimum.

3) Impact and Practical Implications

Doctrinal impact in the Fifth Circuit. Although unpublished, Griffin reinforces a line of Fifth Circuit authority permitting a course-of-conduct finding where:

• The time gap is less than one year; and
• The incidents are meaningfully similar (same drug, same locale, distribution-level quantities);
• Even if the record lacks proof of intervening transactions (regularity).

Safety valve and zero-point offender exposure. Griffin underscores that firearm possession occurring only in a separate incident can still foreclose the safety valve and the § 4C1.1 reduction if that incident is deemed relevant conduct. In practice, that can:

• Trigger a two-level firearm enhancement;
• Preclude the two-level Guideline reduction associated with satisfying the safety-valve criteria;
• Make the 10-year mandatory minimum operative in § 841(b)(1)(A) cases, removing the path to a below-minimum sentence;
• Eliminate the new two-level benefit for “zero-point offenders.”

Defense takeaways.

• Contest course-of-conduct aggressively where regularity evidence is thin; marshal record evidence showing cessation, relapse into personal use, or otherwise diminished similarity (e.g., different drug; personal-use quantities; different geography; no associates).
• Develop proof countering the inference that quantities are distributable—expert testimony on typical dosages and user patterns can matter, especially where weight hovers near thresholds used in cases like Anguiano.
• Insist on district court findings that explain how the three factors are weighed. Although the Fifth Circuit will affirm if the record makes the finding “plausible,” a reasoned explanation can preserve more precise appellate issues.
• Highlight absence of common scheme or plan whenever the government’s theory is only a generalized “purpose to sell,” which Ortiz deems insufficient by itself.

Government takeaways.

• Build the similarity record: same drug, same area, distribution quantities, presence of associates or paraphernalia, and any overlapping sourcing or transaction patterns.
• Temporal proximity under one year is a strong anchor; connect it to facts supporting distribution rather than personal use.
• Be cautious about arguing “regularity” without evidence. Griffin signals the court will not assume continuing trafficking merely from an interrupted cooperation effort.

Sentencing practice. Adopting the PSR can suffice to resolve relevant-conduct disputes, but given the high stakes (enhancement, safety valve, zero-point status, mandatory minimum), district courts may wish to state brief reasons applying the three-factor framework. This creates a clearer record and may reduce appeals on plausibility.

Complex Concepts Simplified

• Relevant conduct (U.S.S.G. § 1B1.3). Sentencing judges may consider uncharged or unadjudicated acts if they are part of the same course of conduct or common scheme/plan as the offense of conviction. This can raise offense levels and trigger enhancements.
• Common scheme or plan vs. same course of conduct.
  • Common scheme or plan looks for substantial connections like shared victims, accomplices, or a distinctive method of offenses.
  • Same course of conduct uses a balancing of temporal proximity, similarity, and regularity. Strong showings in time and similarity can overcome a lack of regularity.
• Clear-error review. Appellate courts defer to district courts on factual findings. If the district court’s view is plausible in light of the record, it is affirmed even if the appellate court might have weighed the evidence differently.
• Firearm enhancement (§ 2D1.1(b)(1)). Adds two offense levels if a firearm was possessed in connection with the offense, including relevant conduct, unless it is clearly improbable the weapon was connected.
• Safety valve (§ 3553(f) and Guideline implementation). Allows qualifying, low-level, non-violent drug defendants to receive sentences below otherwise applicable mandatory minimums. Satisfying the criteria also yields a two-level decrease under the drug guideline. The opinion refers to § 5C1.2 as the “safety valve”; the two-level reduction is implemented via § 2D1.1 when § 5C1.2’s criteria are met. The opinion also references “§ 5C1.1” once in describing the safety valve—this appears to be a typographical slip.
• Zero-point offender reduction (§ 4C1.1). A relatively new, two-level reduction for defendants with no criminal history points who meet additional criteria. It is unavailable if the instant offense “involved” a firearm, which includes relevant conduct.
• Mandatory minimums. Some drug quantities trigger statutory minimum sentences (e.g., 10 years for ≥500g meth mixture under § 841(b)(1)(A)). The safety valve can permit a sentence below that minimum if all criteria are met; otherwise, the court may not go below the statutory floor.

Conclusion

United States v. Griffin reinforces, in a clear and practical way, the Fifth Circuit’s flexible, factor-based approach to relevant conduct in drug cases. Even absent proof of “regularity,” strong temporal proximity (eight months) combined with meaningful similarity (same drug, same locale, distribution-level quantities) is enough to sustain a “same course of conduct” finding under § 1B1.3(a)(2). Once that finding is in place, firearms possessed during the separate incident can drive a two-level enhancement and foreclose both the safety valve and the zero-point offender reduction—transforming the Guideline range and reviving otherwise avoidable mandatory minimum exposure.

Although unpublished and non-precedential, Griffin tracks and applies established Fifth Circuit doctrine (Nava, Lopez, Ocana, Wall, Rhine, among others) and will likely be cited for its persuasive explanation that temporal proximity and similarity can, together, carry the course-of-conduct analysis where regularity is not shown. The case is a cautionary reminder for counsel: litigate the relevant-conduct record meticulously, because the collateral effects on enhancements, mitigation, and mandatory minimums are often decisive.