Filed: May 16, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5041 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRYANT KEITH BETHEA, a/k/a Big B, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-00501-RBH-2) Argued: January 28, 2011 Decided: May 16, 2011 Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED:
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5041 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRYANT KEITH BETHEA, a/k/a Big B, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-00501-RBH-2) Argued: January 28, 2011 Decided: May 16, 2011 Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5041
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRYANT KEITH BETHEA, a/k/a Big B,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00501-RBH-2)
Argued: January 28, 2011 Decided: May 16, 2011
Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Bradley M. Kirkland, BRADLEY M. KIRKLAND, LLC, Columbia,
South Carolina, for Appellant. Thomas Ernest Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Lanny A. Breuer, Assistant Attorney General, Greg D.
Andres, Acting Deputy Assistant Attorney General, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; William N. Nettles,
United States Attorney, A. W. Bethea, Jr., Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Bryant Keith Bethea was convicted by a jury of conspiracy
to possess with intent to distribute and to distribute 50 grams
or more of cocaine base and 5 kilograms or more of cocaine, in
violation of 21 U.S.C. § 846. Bethea appeals his sentence,
asserting that the district court erred in counting three prior
state court convictions as “prior sentences” under U.S.S.G. §
4A1.1 (2008). We affirm.
I.
The Villagomez drug trafficking group, headed by Ismael
Chavarria Villagomez, a/k/a/ Miguel Villagomez, operated a drug
trafficking business out of Dillon, South Carolina. Bethea was
indicted along with four co-conspirators for conspiracy to
possess with intent to distribute and to distribute crack and
powder cocaine from January 1, 2000, until May 2008, during
their association with the Villagomez group. Bethea had been
trafficking in drugs in the Dillon area of South Carolina since
1997. Miguel Villagomez began operating his drug trafficking
activities in the Dillon area in approximately 2004 and began
supplying Bethea with drugs for further distribution. Between
2005 and 2007, the Villagomez group distributed between 200 and
300 kilograms of powder cocaine and cocaine base, as well as
large quantities of marijuana.
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Bethea’s presentence report (“PSR”) recommended a
Sentencing Guidelines range of 235 to 293 months based on a
total offense level of 36 and a criminal history category of
III. Bethea was held accountable for 1,561 grams of crack
cocaine, 12,059.47 grams of powder cocaine, and 29,143.8 grams
of marijuana, based upon his drug trafficking activities from
1997 until his arrest. Bethea did not object to the drug
quantities attributed to him for purposes of determining his
total offense level under the Guidelines.
Bethea’s criminal history category was based on a total of
six criminal history points, including, as is relevant here, one
each for three prior state court convictions for simple
possession of marijuana. * See U.S.S.G. § 4A1.1(c). The first
(“the 1995 offense”) arose out of a 1995 incident in which a
Dillon police officer found five bags of marijuana and $146 on
Bethea’s person. Bethea pleaded guilty to simple possession of
*
Bethea’s fourth criminal history point was for failing to
stop for a blue light in 2000. For this conviction, Bethea
received a sentence of two years’ imprisonment and a $1,000
fine, suspended upon the service of 8.5 days’ imprisonment,
payment of $350, and 18 months’ probation. See U.S.S.G. §
4A1.1(c)(2008). Bethea’s fifth and sixth criminal history
points were based on the fact that he was on probation for this
offense when he committed the instant cocaine conspiracy
offense. See U.S.S.G. § 4A1.1(d) (2008) (providing that two
points are assigned “if the defendant committed the instant
offense while under any criminal justice sentence, including
probation”).
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marijuana and was sentenced to 30 days’ imprisonment, suspended
upon payment of a $200 fine. The second (“the 1998 offense”)
arose out of a 1998 incident in which a highway patrolman
searching Bethea’s car after a traffic stop found a bag of
marijuana, scales, tin foil with mothballs, and $872 in cash.
Bethea pleaded guilty to simple possession of marijuana and paid
a $425 fine. The third conviction (“the 2005 offense”) arose
out of a 2005 incident when an officer during a traffic stop
found a jar of marijuana between the seats in Bethea’s car,
along with $900 on his person. Bethea pleaded guilty to simple
possession of marijuana and was sentenced to 30 days’
imprisonment or a $565 fine. He paid the fine.
At the sentencing hearing before the district court, Bethea
objected to the PSR’s assignment of criminal history points for
the three simple possession convictions under U.S.S.G. § 4A1.1,
and argued that the conduct underlying these convictions should
instead be included as “relevant conduct” under U.S.S.G. § 1B1.3
(2008). Without the points for these convictions, Bethea would
have been assigned a criminal history category of II instead of
III, which would have resulted in a lower advisory guideline
range. The district court overruled Bethea’s objection to his
criminal history score and sentenced Bethea to 235 months’
imprisonment.
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II.
We review a sentencing court’s interpretation of the
Guidelines de novo. See United States v. Carter, 601 F.3d 252,
254 (4th Cir. 2010). In analyzing the Guidelines, courts apply
ordinary rules of statutory construction. See United States v.
Stokes,
347 F.3d 103, 105 (4th Cir. 2003). When the meaning of
the Guidelines is plain, courts must give effect to it. See
id.
In determining the Guidelines’ plain meaning, Guidelines
commentary is considered “authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v.
United States,
508 U.S. 36, 38 (1993).
Under U.S.S.G. § 4A1.1(c), a defendant receives one
criminal history point for each prior sentence of less than
sixty days imprisonment. “The term ‘prior sentence’ means any
sentence previously imposed upon adjudication of guilt, whether
by guilty plea, trial, or plea of nolo contendere, for conduct
not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1).
Conduct is considered “part of the instant offense” for purposes
of U.S.S.G. § 4A1.2(a)(1) if it “is relevant conduct to the
instant offense under the provisions of § 1B1.3 (Relevant
Conduct).” U.S.S.G. § 4A1.2 cmt. n.1.
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Relevant conduct is considered in the calculation of a
defendant’s offense level. See U.S.S.G. § 1B1.3(a). It
includes:
(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 (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in concert with
others, whether or not charged as a conspiracy), 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.
U.S.S.G. § 1B1.3(a)(1). In drug cases, relevant conduct
includes “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. § 1B1.3(a)(2); United States v. Young, 609 F.3d 348,
358 (4th Cir. 2010).
On appeal, Bethea contends that the evidence at trial
established that the cocaine trafficking conspiracy for which he
was indicted and convicted involved both cocaine and marijuana
distribution and spanned from 1990 to 2008, and that the
district court should have considered his prior convictions for
simple possession of marijuana as marijuana trafficking. Thus,
he asserts that the district court should have found that the
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“acts and omissions” underlying the three state offenses “were
part of the same course of conduct or common scheme or plan as
the” drug trafficking conspiracy for which he was convicted,
U.S.S.G. § 1B1.3(a)(2), and not counted them as “prior
sentences” for purposes of his criminal history under U.S.S.G. §
4A1.1. We find no error.
The Guidelines define relevant conduct in drug cases as
including “all acts and omissions . . . that were part of the
same course of conduct or common scheme or plan as the offense
of conviction.” U.S.S.G. § 1B1.3(a)(2). However, the
Guidelines also expressly provide that “offense conduct
associated with a sentence that was imposed prior to the acts or
omissions constituting the instant federal offense (the offense
of conviction) is not considered as part of the same course of
conduct or common scheme or plan as the offense of conviction.”
U.S.S.G. § 1B1.3 cmt. 8 (emphasis added). For Guidelines
purposes, the “offense of conviction” is determined by reference
to the acts charged in the indictment. See U.S.S.G. § 1B1.2(a)
(defining “offense of conviction” as “the offense conduct
charged in the count of the indictment or information of which
the defendant was convicted”); see United States v. Ignancio
Munio, 909 F.2d 436, 438 n.2 (11th Cir. 1990) (per curiam)
(explaining that “offense of conviction” refers to “the conduct
charged in the indictment for which the defendant was
8
convicted”); cf. United States v. Boulware, 604 F.3d 832, 835-36
(4th Cir. 2010) (holding that notwithstanding defendant’s
argument regarding the actual nature of her offense, in
determining which guideline provision would set her offense
level, the description of the offense in the indictment was
controlling).
Bethea’s offense of conviction was for his participation in
the conspiracy to possess with intent to distribute cocaine and
cocaine base, “beginning on or about January 1, 2000, and
continuing thereafter, up to and including the date of th[e]
Indictment.” J.A. 11. Because the sentences associated with
his 1995 and 1998 convictions were “imposed prior to the acts or
omissions constituting the instant federal offense (the offense
of conviction),” the Guidelines clearly direct that the
underlying offense conduct not be “considered as part of the
same course of conduct or common scheme or plan as the offense
of conviction.” U.S.S.G. § 1B1.3 cmt. 8. Thus, even if the
district court could have found the conduct underlying the
simple possession of marijuana convictions to be drug
trafficking activities, the conduct would not be considered
“relevant conduct” under the Guidelines. Id.; cf. United States
v. Defeo, 36 F.3d 272, 276 (2d Cir. 1994) (“Even if acts would
otherwise be deemed relevant conduct, . . . the court is not to
consider them if they are ‘associated with a sentence that was
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imposed prior to the acts or omissions constituting the instant
federal offense (the offense of conviction).’” (quoting U.S.S.G.
§ 1B1.3 cmt. 8)). Accordingly, we hold that the district court
did not err in counting the 1995 and 1998 sentences as “prior
sentences” instead of “relevant conduct” under the Guidelines.
As with the 1995 and 1998 offenses, Bethea argues that the
district court also erred in treating his 2005 offense as a
“prior sentence” instead of “relevant conduct.” The United
States contends that, while the sentence for the 2005 offense
was not imposed prior to the offense of conviction, it was also
properly counted as a “prior sentence” because Bethea resumed
his participation in the cocaine trafficking conspiracy after
the sentence was imposed. We need not resolve this issue. In
light of our holding that the court correctly treated the
sentences for Bethea’s 1995 and 1998 offenses as prior sentences
under the Guidelines, any error regarding the 2005 offense would
be harmless because the single criminal history point added for
that offense did not affect Bethea’s criminal history category,
which would have been III regardless of how the 2005 offense was
treated.
III.
For the foregoing reasons, we affirm the district court’s
judgment.
AFFIRMED
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