The reach of relevant conduct

As noted here, I have officially sworn off trying to follow all the Booker circuit action; but I cannot help glancing at recent opinions as time permits.  This afternoon I noticed that the Fifth Circuit issued an (unpublished) decision in US v. Fernandez-Pena, No. 04-40681 (5th Cir. Apr. 14, 2005) (available here), which is intriguing mostly as a window on the federal guidelines relevant conduct rules, which are still fully applicable (though now advisory) after Booker.

In Fernandez-Pena, the Fifth Circuit approved in an alien smuggling case the district court's increase of the defendant's guideline sentence based on relevant (and presumably uncharged) conduct of another incident of smuggling which took place "approximately 20 months before the offense of conviction."  The defendant asserted that this conduct was too remote to constitute relevant conduct, but the Fifth Circuit concluded that, "in light of the similarity of the offenses, the district court did not clearly err in including the prior conduct as relevant conduct."  (The Fernandez-Pena court also concluded that the defendant did not meet his plain-error burden to secure a remand for resentencing on Booker grounds.)