US v. Levnous Whitsett, No. 13-4788 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4788 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LEVNOUS ANDREW WHITSETT, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:13-cr-00073-TDS-1) Submitted: June 30, 2014 Decided: July 11, 2014 Before WILKINSON, MOTZ, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Eric C. Bohnet, ERIC C. BOHNET, ATTORNEY AT LAW, Indianapolis, Indiana, for Appellant. Ripley Rand, United States Attorney, Terry M. Meinecke, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Levnous plea Andrew agreement, hydrochloride, district in court imprisonment. court erred cocaine to Whitsett conspiracy violation of sentenced On by hydrochloride 21 controlled to § 846 (2012). that substances his the other plea to a cocaine eighty-five argues in pursuant distribute U.S.C. Whitsett mentioned guilty, to Whitsett appeal, using pled The months district than the agreement to calculate his base offense level and by using conduct associated with dismissed two-level counts sentencing as relevant conduct when under U.S. enhancement Guidelines Manual, § 2D1.1(b)(12) (2012). Because Whitsett did not applying a Sentencing We affirm. object to the presentence report on the grounds he pursues on appeal, we review his claims for plain error. See United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012); see also United States v. Olano, 507 U.S., 572, 732 (1993) (discussing standard of review). When a defendant has committed multiple offenses similar to the charged offense, all conduct that is part of the same course of conduct or common scheme or plan as the offense of conviction constitutes relevant conduct under USSG § 1B1.3(a)(2). United States v. Hodge, 354 F.3d 305, 312-13 (4th Cir. 2004) (quoting USSG § 1B1.3(a)(2)); see also United States v. Dugger, 485 F.3d 236, 241-42 (4th Cir. 2007) (same). 2 Prior offenses are 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 offenses. single Hodge, episode, 354 F.3d spree, at 313 or ongoing (quoting series USSG of § 1B1.3 cmt.n.9(B)). Whitsett first argues that the district court committed plain error when it considered substances other than cocaine base hydrochloride offense as level. relevant The conduct Sentencing in determining Guidelines his specifically state that, in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction. Whitsett pled hydrochloride. cocaine base receiving guilty USSG § 1B1.3 cmt. background. to conspiracy to distribute Here, cocaine However, during the investigation, he also sold to cocaine a confidential hydrochloride informant; and he receiving confessed and to purchasing marijuana; and officers recovered cocaine hydrochloride, cocaine base, and residence. courts marijuana See consider from Hodge, in 354 his residence F.3d relevant at 313 and his (discussing conduct mother s factors determination). Accordingly, we conclude that the district court did not err in using the other controlled substances in calculating Whitsett s 3 offense level because those substances were part of the same course of conduct. Next, controlled Whitsett substances asserts that his offense in precluded by his plea agreement. unpersuasive. the inclusion level of other calculation is This argument is similarly The plea agreement did not preclude the use of other evidence or relevant conduct in establishing Whitsett s Guidelines range. Finally, Whitsett claims that the district court committed plain error when it considered relevant conduct from counts that were dismissed in determining his offense level, specifically the two-level enhancement under USSG § 2D1.1(b)(12) for maintaining premises controlled substances. offenses, manufacture including and for manufacturing or distributing Whitsett was indicted for four separate one for maintaining distribution of a residences controlled for the substance. Officers recovered cocaine hydrochloride and cocaine base during searches of Whitsett s residence, and his mother s residence, and Whitsett admitted to officers during the searches that he had sold the same drugs during the conspiracy. Because it is clear that the conduct associated with the dismissed counts was part of the same course of conduct as the offense of conviction, we conclude that the district court did not err plainly or otherwise in considering conduct associated with the dismissed 4 counts as relevant conduct when it applied the two-level enhancement. We therefore affirm the district court s judgment. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 5
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