UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Andrew Whitsett pled guilty, pursuant to a
plea agreement, to conspiracy to distribute cocaine
hydrochloride, in violation of 21 U.S.C. § 846 (2012). The
district court sentenced Whitsett to eighty-five months
imprisonment. On appeal, Whitsett argues that the district
court erred by using controlled substances other than the
cocaine hydrochloride mentioned in his plea agreement to
calculate his base offense level and by using conduct associated
with dismissed counts as relevant conduct when applying a
two-level sentencing enhancement under U.S. Sentencing
Guidelines Manual, § 2D1.1(b)(12) (2012). We affirm.
Because Whitsett did not 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). Prior offenses are part of
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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.” Hodge, 354 F.3d at 313 (quoting USSG § 1B1.3
cmt.n.9(B)).
Whitsett first argues that the district court
committed plain error when it considered substances other than
cocaine hydrochloride as relevant conduct in determining his
base offense level. The Sentencing Guidelines 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.” USSG § 1B1.3 cmt. background. Here,
Whitsett pled guilty to conspiracy to distribute cocaine
hydrochloride. However, during the investigation, he also sold
cocaine base to a confidential informant; he confessed to
receiving cocaine hydrochloride and receiving and purchasing
marijuana; and officers recovered cocaine hydrochloride, cocaine
base, and marijuana from his residence and his mother’s
residence. See Hodge, 354 F.3d at 313 (discussing factors
courts consider in relevant conduct determination).
Accordingly, we conclude that the district court did not err in
using the other controlled substances in calculating Whitsett’s
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offense level because those substances were part of the same
course of conduct.
Next, Whitsett asserts that the inclusion of other
controlled substances in his offense level calculation is
precluded by his plea agreement. This argument is similarly
unpersuasive. 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 for manufacturing or distributing
controlled substances. Whitsett was indicted for four separate
offenses, including one for maintaining residences for the
manufacture and distribution of a controlled 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
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counts as relevant conduct when it applied the two-level
enhancement.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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