Glеnn Damato appeals his 96-month sentence for conspiracy to distribute marijuana. He argues that the district court erred in calculating drug quantity by including as relevant conduct a drug transaction that occurred more than thirteen years prior to the offense of conviction. The government argues only that this transaction was part of the “same course of conduct” as the offense of conviction. See U.S.S.G. § lB1.3(a)(2). We cannot agree with the government’s contention. The thirteen-year interval at issue far exceeds the gap between relevant conduct and the charged offense in the case law of any circuit including our own. Further, that extreme lack of temporal proximity was not mitigated by strong evidence of regularity or similarity. To the contrary, the government presented no evidence of regularity for an eight-year block of time between the putatively relevant conduct and the charged offense. And the government’s evidence with respect to similarity, while substantial, was not so powerful as to compensate for the weight we must accord the temporal proximity and regularity factors given their extraordinary status in this case.
We nevertheless exercise our discretion to consider an alternative basis to affirm, and conclude that the prior transaction qualifies as relevant conduct because it and the offense of conviction were part of a “common scheme or plan.” See id. The earlier conduct was substantially connected to the offense of conviction; both featured common co-conspirators who worked together to procure a distribution quantity of marijuana from a source in Southern California. Because of this substantial connection, the prior transaction qualifies as relevant conduct.
We reject Damato’s remaining contentions that the district court should not have sentenced him as a leader or organizer of the charged conspiracy, and that his below-Guidelines sentence was substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
A
In August of 2004, a drug dog alerted to a package sent from Mark McPherson in Olathe, Kansas to Leon Livingston in San Diego, California. The package contained $30,000 in cash. When Livingston attempted to retrieve the package, he was arrested. An ensuing investigation revealed a cross-country, marijuana-distribution conspiracy involving Damato, McPherson, Livingston, Harold Michael Bower, Neal Limtiaco, Thomas Starr, and others.
McPherson, Bower, and Starr were indicted in April of 2006. All three eventually pled guilty to federal drug charges and provided statements detailing their involvement in drug trafficking. In April of 2008, Damato was charged with conspiracy to distribute 100 kilograms or more of *836 marijuana along with Livingston and Limtiaco. The indictment alleged a conspiracy beginning in or about Deсember 2003, and continuing to approximately March 30, 2006. All three defendants pled guilty. As with the previously indicted co-conspirators, Livingston and Limtiaco cooperated with law enforcement.
B
Damato pled guilty without the benefit of a plea agreement. The United States Probation Office prepared a Presentence Investigation Report (“PSR”) for Damato. Based on interviews of McPherson, Starr, Livingston, and Bower, along with information provided by law enforcement, the PSR attributed 782 kilograms of marijuana to Damato. This total included four transactions in which marijuana was seized from co-conspirators by police, and an estimate based on the amount of marijuana that could be purchased with the $30,000 seized in August 2004.
Although some of the drugs attributed to Damato had been physically seized by police, most of the drug quantity calculation derived from statements of co-conspirators. McPherson described two loads of marijuanа delivered to Damato and Starr in 2003 or 2004, which he estimated contained 120 pounds each. Livingston stated that he received four or five packages of $30,000 from McPherson prior to his arrest (other than the package that had been seized), which the PSR estimated would purchase 68 kilograms of marijuana. Finally, Starr indicated that he helped to transport four loads of marijuana between October 2004 and August 2005, each of which contained 150 to 200 pounds. All of the transactions included in the PSR— both those for which drugs were recovered, and those in which no drugs were recovered — occurred between 2003 and 2006 during the charged conspiracy.
The PSR also included background information obtained from interviews with McPherson, Starr, and Bower. According to McPherson, he and Damato met in 1981. Damato was engaged in marijuana distribution at that time, with his suppliers located in Florida. McPherson was also engaged in marijuana distribution, and was using Starr to transport loads across the country. Sometime in the mid to late 1980s, Damato switched to a pair of marijuana suppliers located in California, one of whom was Livingston. However, McPherson stated that he and Damato were not “partners” then.
Around the same time, McPherson introduced Bower to Damato. McPherson had been using Bower as a driver to distribute marijuana, and Bower began working for Damato as well. Bower stated that he delivered marijuana five or six times for Damato in the 1990s, until he was arrested in 1995. Bower was incarcerated from 1995 to 2003.
McPherson also served time in prison in the 1990s. After he was released, McPherson reunited with Damato, who said he was still in the marijuana business and was still working with Starr. Damato and McPherson began purchasing marijuana from Livingston in 2003, and continued to do so until August 2004 when Livingston was arrested. Following Livingston’s arrest, they began buying marijuana from Limtiaco. Starr, Bower, and others were paid to drive marijuana from California to various points in the Midwest during this time period. These delivery trips formed the basis of the PSR’s drug quantity calculation.
Using a drug quantity estimate of 782 kilograms, the PSR recommended a base offense level of 30. It added four levels under U.S.S.G. § 3Bl.l(a) because Damato was a leader or organizer of an extensive *837 drug operation and subtracted three levels for acceptance of responsibility, yielding a total offense level of 31. Combined with a criminal history category of I, Damato’s advisory Guidelines range was calculated at 108 to 135 months.
C
Damato objected to both the drug quantity calculation and to the leader or organizer enhancement. Specifically, Damato argued that he was not involved in a transaction in which three pounds of marijuana were seized, with the transaction which led to the seizure of $30,000 in cash, or with one of the transactions from which drugs were not recovered. He also objected to the “paragraphs within the [PSR] based on сooperator Mark McPherson’s statement that [Damato] was involved.”
The government also objected to the PSR’s drug quantity estimate. It submitted a spreadsheet listing nineteen total transactions which the government claimed involved Damato. The spreadsheet indicates that the factual bases for the transactions were statements from McPherson and Bower, along with “hotel records, GPS tracking information, and law enforcement reports.” The spreadsheet attributed 2298 pounds (1042.4 kilograms) of marijuana to Damato from seventeen transactions alleged to have occurred during the charged conspiracy. It also included two additional transactions as relevant conduct: A 1995 occurrence in which Bower was arrested with 62.5 pounds (28.35 kilograms) of marijuana, and a January 1990 incident in which McPherson and Livingston were arrested for attempting to purchase 1200 pounds (544.32 kilograms) of marijuana from an undercover Drug Enforcement Agеncy (“DEA”) agent. The government thus argued that Damato was responsible for a total of 3560.5 pounds (1615 kilograms). The district court held a sentencing hearing to consider these objections. Robert Hawkins, a financial investigator for the DEA, was the only witness to testify. Hawkins provided hearsay testimony relayed from co-conspirators McPherson, Bower, Livingston, and Limtiaco, along with information contained in various law enforcement reports. He claimed that “for a period [of] probably 25 years,” Damato, McPherson, Bower, Livingston, “and others were for the most part trafficking marijuana, one or more of them all the time.”
Hawkins discussed the support behind the nineteen entries in the government’s spreadsheet. He provided a detailed description of the first fifteen transactions, all of which occurred between 2003 and 2006. Many of these transactions were supported by hotel records and GPS tracking data that had been obtained by law enfоrcement.
In addition, Hawkins provided testimony on the two claimed relevant conduct transactions. He stated that McPherson and Livingston had been arrested, and eventually served time, for attempting to purchase 1200 pounds of marijuana from an undercover DEA agent in January of 1990. Based on statements from Bower, McPherson, and Livingston, Hawkins testified that Damato had been involved in the transaction, and was at Livingston’s home waiting for McPherson and Livingston to return with the drugs. Damato left the house with a bag of cash when he learned of the arrest and was never apprehended. Hawkins further testified about statements made by Bower regarding a 1995 transaction. As the PSR indicated, Bower delivered five or six loads of marijuana for Damato in the 1990s. In 1995, Bower was arrested while transporting 62.5 pounds of marijuana.
*838 At the close of the sentencing hearing, the district court sustained both Damato’s and the government’s drug quantity objections. It removed the three specific transactions to which Damato objected, but added the additional drug quantity listed on the government’s spreadsheet — including the two relevant conduct transactions. With these adjustments, the district court attributed 1515.8 kilograms of marijuana to Damato, for a base offense level of 32. Damato objected to the court’s consideration of “alleged conduct that took place back in 1990” as relevant to “the conspiracy that was charged from 2003 to 2006,” but the court was not persuaded. It also rejected Damato’s objection to the leader or organizer enhancement. Adding four levels for that enhancement, and subtracting three levels for acceptance of responsibility, the court adopted a total offense level of 33 and a criminal history category of I. Damato’s Guidelines range was 135 to 168 months. However, the court settled on a below-Guidelines sentence of 96 months.
Damato timely appealed the sentence imposed.
II
On appeal, Damato cоntends the district court erred in calculating drug quantity and in applying the leader or organizer enhancement. A claim that a district court improperly calculated an advisory Guidelines range implicates procedural reasonableness.
See United States v. Huckins,
Damato also argues that his sentence is substantively unreasonable. “[S]ubstantive reasonableness addresses whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”
United States v. Huckins,
Ill
The parties have helрfully narrowed for us the scope of Damato’s drug quantity claim. Damato admits that he is responsible for 683.8 kilograms of the marijuana listed in the PSR. And he further admits that he is responsible for 45.36 kilograms that were not contained in the PSR but considered at the sentencing hearing. Thus, there is no dispute that Damato was responsible for at least 729.16 kilograms of marijuana.
That stipulated quantity would place Damato at a base offense level of 30, which applies when 700 to 1000 kilograms of marijuana are attributed to a defendant. U.S.S.G. § 2D1.1(c)(5). Damato was sentenced under U.S.S.G. § 2D1.1(c)(4), which provides for a base offense level of 32 when a defendant is responsible for 1000 to 3000 kilograms of marijuana. Accordingly, the question before us is whether Damato should have been sentenced under U.S.S.G. § 2D1.1(c)(5) or (c)(4). And that question turns on the propriety of counting a single transaction: the 1990 incident in which McPherson and Livingston were ar
*839
rested while attempting to purchase 1200 pounds of marijuana. Regardless of the other alleged incidents, Damato should be sentenced under U.S.S.G. § 2D1.1(c)(5) if this transaction qualifies but subsection (c)(4) if it does not.
Cf. United States v. Wilken,
Under U.S.S.G. § 1B1.3, a defendant’s base offense level is based on “relevant conduct.” Relevant conduct is defined to include:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity ... all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense; [and]
(1) solely with respect to offenses of a character for which § 3D1.2(d) wоuld require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction....
U.S.S.G. § lB1.3(a).
It is a given that the 1990 transaction does not qualify under subsection (1). The offense of conviction was a conspiracy beginning around December, 2003 — more than a decade after the 1990 occurrence— and there is no evidence suggesting that the earlier transaction was conducted “in preparation for” the later conspiracy. U.S.S.G. § lB1.3(a)(1). If the 1990 transaction is to be counted, it must qualify as “part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § lB1.3(a)(2). 1
Our circuit has distinguished between the phrases “same course of conduct” and “common scheme or plan.”
See United States v. Svacina,
A
Two offenses 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.” U.S.S.G. § 1B1.3 app. n. 9(B). We consider “the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses.”
Id.; see also United States v. Roederer,
When one of the above factors is absent, a stronger presence of аt least one of the other factors is required. For example, where 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.
U.S.S.G. § 1B1.3 app. n. 9(B). Although we have construed relevant conduct to cover a broad range of activities,
See United States v. Garcia,
1
We begin our analysis with temporal proximity. Damato was convicted of engaging in a conspiracy that began in or about December 2003. McPherson and Livingston attempted to purchase 1200 pounds of marijuana in January 1990, more than thirteen years prior to the offense of conviction. As the government acknowledged at oral argument, treating conduct separated by that length of time аs part of the same course of conduct would be unprecedented. None of the cases cited by the government contain such a lengthy gap between potentially relevant conduct and the crime of conviction, nor have we discovered any in our independent research. In fact, we have been unable to uncover a case holding that conduct even half as temporally distant qualifies as relevant conduct. The largest time difference we have observed in the case law is the five-year interval at issue in
Roederer,
Further, the five-year delay in
Roederer
appears to be an outlier.
2
We have described a “fifteen month interval” as “temporally distant.”
United States v. Clark,
The Fifth Circuit accurately summarized the bulk of the case law in stating: “Various courts have found that a period of separation of over one year negated or weighed against [a finding of] temporal proximity.”
United States v. Wall,
2
The government has not made such a showing with respect to regularity. “To determine whether ‘regularity’ is present, we inquire whether there is evidence of a regular, i.e., repeated, pattern of similar unlawful conduct” between “the purported relevant conduct and the offense of conviction.”
United States v. Rhine,
However, evidence regarding Damato’s activities between 1990 and 2003 is exceedingly sparse. Bower claimed that he delivered marijuana on Damato’s behalf five or six times between 1990 and 1995, when Bower was arrested transporting a load. But the government presented no evidence of regularity for the 1995 to 2003 time frame. When McPherson was released from prison in 2002 or 2003, he met up with Damato, who reported that he was “still” in the marijuana business and was using Starr as a driver. Hawkins relayed this statement at the sentencing hearing, noting that Starr worked as a driver for Damato while McPherson was in prison. The government presented no other evidence regarding the eight-year gap between Bower’s arrest in 1995 and the beginning of the charged conspiracy in 2003. 3
Although the record supports an inference that Damato was somehow involved in marijuana distribution between 1995 and 2003, there is no evidence whatsoever regarding the regularity of such distribution. The record does not tell us when or how often Damato used Starr as a driver during this time frame. There is evidence, however, suggesting that Damato’s drug distribution activities would have been dissimilar to those during the charged conspiracy. See Rhine, 583 F.3d *842 at 890 (regularity inquiry looks for a “pattern of similar unlawful conduct”). Three of Damato’s primary co-conspirators, McPherson, Livingston, and Bower, were incarcerated during this time period. McPherson was in prison following his 1990 arrest until 2002 or 2003. Livingston also served time following he and McPherson’s attempted purchase of 1200 pounds of marijuana from a DEA agent. And Bower was jailed from 1995 to 2003. The PSR also notes that Damato was diagnosed with a relapse of lymphoma in 1995 and underwent chemotherapy and a stem cell transplant.
It was established that Damato engaged in five or six transactions between 1990 and 1995, and that Damato was somehow involved in marijuana distribution when McPherson was released from prison in 2002 or 2003. But the government has not presented evidence of regularity for eight of the thirteen years between the 1990 transaction and the crime of conviction. Given this eight-year dark period, we are compelled to conclude that regularity, like temporal proximity, is lacking.
See United States v. Clark,
3
We turn to the similarity prong. During the charged conspiracy, Damato and McPherson regularly had Livingston purchase between 100 and 200 pounds of marijuana from Limtiaco in San Diego. The co-conspirators then used a variety of drivers — frequently Starr and
Bower
— to transport the marijuana to locations in the Midwest. The 1990 transaction shares several characteristics with the crime of conviction. Both involved marijuana, the participants Damato, Livingston, and McPherson, and a location in Southern California. See
United States v. Caldwell,
However, there are several important differences between the transactions included in the charged conspiracy and the 1990 transactiоn. First, the amount McPherson and Livingston attempted to purchase in 1990 was much larger than the purchases that occurred during the charged conspiracy. Most of the transactions included in the offense of conviction involved 100 to 120 pounds of marijuana, and none exceeded 200 pounds. The 1990 transaction, in contrast, involved 1200 pounds — an order of magnitude greater than the usual amount involved in the charged conduct.
See Hill,
Second, the 1990 transaction and the conspiracy transactions involved different sources. Limtiaco was the drug source during the charged conspiracy. Yet there is no suggestion that Limtiaco was involved in the 1990 transaction. To the contrary, the putative source in that deal was an undercover DEA agent. Although both transactions occurred in the same general geographic area, we must be careful not to consider similarity “at such a level of generality as to eviscerate the evaluation of whether uncharged criminal
*843
activity is part of the ‘same course of conduct or common scheme or plan’ as the offense of conviction.”
Mullins,
Third, the record is essentially devoid of evidence regarding Damato’s role in the 1990 transaction. Hawkins testified that Livingston was responsible for taking delivery of the marijuana, and that McPherson was in possession of the cash intended to cover the purchase price. As to Damato, Hawkins testified only that “Damato was at Leon Livingston’s home waiting” and that Damato “ditched a bag of cash” after fleeing. It is thus difficult to compare Damato’s role in the 1990 transaction to his role in the offense of conviction.
See United States v. Moore,
Fourth, the record does not establish whether the 1990 transaction shared a similar modus operandi with the transactions included in the charged conspiracy. Given the quantity involved, we can infer that the 1200 pounds McPherson and Livingston attempted to purchase was destined for distribution. However, the government did not present any evidence regarding the manner in which those drugs would have been distributed. In contrast, the transactions included in the offense of conviction generally shared a similar transportation and distribution scheme.
4
We conclude that the 1990 transaction was similar to the charged conduct to a moderate degree, but that this level of similarity falls short of compensating for the extremе lack of temporal proximity and the absence of evidence regarding regularity.
See
U.S.S.G. § 1B1.3 app. n. 9(B) (“When one of the above factors is absent, a stronger presence of at least one of the other factors is required.”). We stress that the level of similarity at issue here would qualify the 1990 transaction as part of the same course of conduct in many cases, but the extraordinary — indeed unprecedented — temporal remoteness coupled with the absence of regularity evidence in this case is unique. In
Caldwell,
for example, the level of similarity between the relevant conduct and offense of conviction was reasonably close to the level of similarity here.
See
As nоted above, we apply a “sliding scale” analysis to determine whether a transaction qualifies as part of the “same course of conduct.”
See Hill,
*844
Although the temporal element factors very heavily into this decision, we emphasize that all three factors must be considered in determining whether an offense qualifies as part of the “same course of conduct,” and that “each case depends largely on its own facts.”
Roederer,
B
The government does not argue that the 1990 transaction qualifies under the “common scheme or plan” prong, which provides an independent basis for holding a prior act to be relevant conduct.
See Svacina,
We exercise our discretion to consider an alternative theory only when “the appellant has had a fair opportunity to address that ground.”
Alpine Bank v. Hubbell
We have identified several guiding factors in determining whether to consider an alternative theory: “[1] whether the ground was fully briefed and argued here and below; [2] whether the parties have had a fair opportunity to develop the factual record; and [3] whether, in light of factual findings to which we defer or uncontested facts, our decision would involve only questions of law.”
Elkins v. Comfort,
*845
Both the second and third
Elkins
factors, however, weigh in favor of considering the alternative ground. The government argued below that the 1990 transaction constituted relevant conduct without limiting itself to either of the available prongs. Specifically, it рresented evidence regarding the 1990 transaction from Hawkins, but did not focus on one prong of the relevant conduct inquiry to the exclusion of the other.
See United States v. Hinojosa
The third
Elkins
factor, whether the issue is one of law “in light of factual findings to which we defer or uncontested facts,”
id,.,
also supports an analysis of the common scheme or plan prong. In reviewing a district court’s sentencing determination, we defer to its factual findings unless clearly erroneous and “view the evidence and inferences therefrom in thе light most favorable to the district court’s determination.”
United States v. Beltran,
Because we reject the government’s theory on appeal, and because Damato had a fair opportunity to argue whether the 1990 transaction qualifies under the common scheme or plan prong, we exercise our discretion to consider this legal question. We caution the government in future cases, however, that consideration of an unargued issue is committed to our discretion.
C
A prior offense may qualify as relevant conduct under the common scheme or plan prong if it is “substantially connected to [the offense of conviction] by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.” U.S.S.G. § 1B1.3 app. n. 9(A). A Guidelines application note prоvides the following example of a common scheme or plan:
the conduct of five defendants who together defrauded a group of investors by computer manipulations that unlawfully transferred funds over an eighteen-month period would qualify as a common scheme or plan on the basis of any of the above listed factors; i.e., the commonality of victims (the same investors were defrauded on an ongoing basis), commonality of offenders (the conduct constituted an ongoing conspiracy), commonality of purpose (to defraud the group of investors), or similarity of modus operandi (the same or similar computer manipulations were used to execute the scheme).
Id.
We have repeatedly noted the distinction between the two relevant conduct prongs. Although “a common scheme or plan may require some connection between the acts by common participants, purpose, оr overall scheme, the analysis of same course of conduct focuses on whether there is a pattern of criminal conduct.”
Svacina,
Nevertheless, in certain circumstances, acts that do not qualify under the same course of conduсt prong may be part of a common scheme or plan as the offense of conviction. Course of conduct is therefore broader in the sense that it sometimes permits the inclusion of conduct less similar to the offense of conviction than does a common scheme or plan. It provides greater latitude with respect to similarity because the government is constrained by the regularity and temporal proximity factors when proceeding under a course of conduct theory. As explained in Section II.A, supra, even conduct that is fairly similar to the offense of conviction fails to qualify as part of the same course of conduct if it is temporally distant and the government does not establish regularity. But such conduct, if it shares a substantial connection to the offense of conviction, may constitute part of a common scheme or plan. See U.S.S.G. § 1B1.3 app. n. 9(A) (acts are part of a common scheme or plan if they are “substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi”).
We conclude that this case presents one of the rare instances in which acts that were not part of the same course of conduct as the offense of conviction nonetheless qualify as part of a common scheme or plan. As discussed in Section II.A.3,
supra,
the 1990 transaction and the offense of conviction were similar in many respects. Both involved the sale of large amounts of marijuana, and both involved Damato obtaining (or attempting to obtain) marijuana from a source located in Southern California. And importantly, Damato conspired with the same individuals— McPherson and Livingston — -in both instances. “Common identity of participants and similar role in the activity are the key factors in identifying whеther the uncharged drug activities were part of a common scheme or plan.”
United States v. Rios,
Although we are troubled by the evidentiary gaps in the record regarding Damato’s role in the 1990 transaction and the modus operandi underlying it, we nevertheless conclude that it was part of a common scheme or plan with the offense of conviction. According to Hawkins, Damato was “involved in [the 1990] deal.” Specifically, Damato was waiting at Livingston’s home while Livingston and McPherson carried out the transaction with the agent they believed to be a marijuana supplier. After Livingston and McPherson were arrested, Damato was tipped off. He “ran out of the house, hid in some nearby bushes, took off his running suit, ditched a bag of cash that he had with him, and got away.” Hawkins learned this information from debriefings with McPherson, Livingston, and Bower.
Although this evidеnce is somewhat thin with respect to Damato’s involvement, viewed in the light most favorable to the government,
see Beltran,
Damato complains that Hawkins’ testimony is too unreliable to carry the government’s burden of proving relevant conduct by a preponderance of the evidence.
See United States v. Fortier,
In sum, although we reject the government’s argument that the 1990 transaction was part of the same course of conduct as the offense of conviction, we conclude that the transaction qualified as relevant conduct under the common scheme or plan prong. Accordingly, we reject Damato’s challenge to the district court’s drug quantity calculation.
IV
In addition to his drug quantity objеction, Damato also argues that the district court erred in imposing a four-level enhancement for his role as “an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1. Damato contends the evidence was insufficient to establish that he acted as a leader or organizer.
To determine whether a defendant qualifies as a leader or organizer, the Guidelines direct us to consider:
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.
U.S.S.G. § 3B1.1(a) cmt. n. 4. Further, a defendant need not lead or organize at least five individuals. Rather, the criminal activity must include five or more participants (or be otherwise extensive). U.S.S.G. § 3B1.1. A defendant may be eligible for the leader or organizer enhancement if he leads or organizes even one other participant.
See United States v. Hamilton,
We uphold the district court’s conclusion that Damato qualifies as a leader or organizer. McPherson’s statements contained in the PSR show that Damato *848 and McPherson flew out to See Livingston after he was arrested to “figure out how they were going to operate the business.” At the sentencing hearing, Hawkins explained that most of the marijuana deliveries were taken to Damato, or split between Damato and McPherson. When Livingston introduced other members of the conspiracy to the supplier Limtiaco, Damato met with Limtiaco first. By monitoring conspirators’ phone calls, the government was able to establish that Damato almost certainly made more calls to Limtiaco than other members of the conspiracy. Limtiaco stated that it appeared that Damato was “in charge.” In light of this evidence, we cannot say that the district court clearly erred in classifying Damato as a leader or organizer of the conspiracy.
We also reject Damato’s argument that evidence supporting the enhancement was inherently unreliable. As previously noted, “hearsay statements may be considered at sentencing if they bear some minimal indicia of reliability.”
Cook,
Y
Lastly, we consider the substantive reasonableness of Damato’s sentence. Damato was sentenced below his advisory Guidelines range. As such, his sentence is presumed to be reasonable.
See United States v. Balbin-Mesa,
Under 18 U.S.C. § 3553(a)(6), sentencing courts should “avoid unwarranted disparities among defendants with similar records who have been found guilty of similar conduct.” Damato complains that his co-conspirators received lesser sentences than his own. But we have repeatedly explained that § 3553(a)(6) “requires a judge to take into account only disparities
nationwide
among defendants with similar records and Guideline calculations. It is not reversible error for a sentencing court to adherе to this interpretation in its exercise of sentencing discretion.”
United States v. Verdin-Garcia,
Further, because “avoidance of unwarranted disparities was clearly considered by the Sentencing Commission when setting the Guidelines ranges,” a district court that “carefully reviewed the Guidelines range ... necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.”
Gall v. United States,
In any event, Damato has not shown that he was similarly situated to his codefendants. Although counsel questioned Hawkins regarding the lengths of several coconspirators’ sentences, the record does not actually establish the length of several of their sentences. The record lacks information as to the manner in which all of the coconspirators’ sеntences were calculated. Only McPherson’s record is discussed in
*849
detail, and the difference between his and Damato’s sentence is explained by the substantial assistance McPherson rendered to the government. A “sentencing disparity produced by substantial assistance departures was intended by Congress.”
United States v. Candia,
YI
For the foregoing reasons, we AFFIRM the district court’s sentencing determination.
Notes
. Section 3D 1.2(d) requires the grouping of multiple counts "[w]hen the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm____" Damato's crime qualifies as a crime in which the offense level is determined largely by the "quantity of substance involved.” Id.
. In considering transactions that occurred five years apart, other circuits have bеen reluctant to regard the prior transaction as relevant to a given conspiracy.
See, e.g., United States v. Mankiewicz,
. Bower also stated that Damato continued to engage in marijuana distribution after McPherson was incarcerated. However, this statement clearly refers to the 1990 to 1995 time period. Immediately after the statement, Bower explains that he drove five or six loads of marijuana in the 1990s. And Bower himself was incarcerated from 1995 to 2003.
. Damato appears to complain that the district court did not specify which of the prongs it was applying. Although identifying which of the relevant conduct prongs is being applied is the better practice, we have never held that a district court is required to announce the portion of U.S.S.G. § 1B1.3(a)(2) it concludes is relevant.