US v. Bryant Bethea

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:08-cr-00501-RBH-2. Copies to all parties and the district court/agency. [998589916].. [09-5041]

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Date Filed: 05/16/2011

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UNPUBLISHED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

Before TRAXLER,
Judges.

Chief

Decided:

Judge,

and

MOTZ

and

May 16, 2011

KEENAN,

Circuit

Affirmed by unpublished per curiam opinion.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.

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Unpublished opinions are not binding precedent in this circuit.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.
indicted

along

with

four

co-conspirators

for

Bethea was

conspiracy

to

possess with intent to distribute and to distribute crack and
powder

cocaine

from

January

1,

2000,

until

their association with the Villagomez group.

May

2008,

during

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

Date Filed: 05/16/2011

presentence

Page: 4 of 10

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

possession of marijuana. *

state

court

convictions

See U.S.S.G. § 4A1.1(c).

for

simple

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.
arose

out

of

searching

a

1998

Bethea’s

car

The second (“the 1998 offense”)

incident
after

in

a

which

traffic

a

highway

stop

found

patrolman
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.
possession

of

marijuana

Bethea pleaded guilty to simple

and

imprisonment or a $565 fine.

was

sentenced

to

30

days’

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.
criminal

The district court overruled Bethea’s objection to his
history

score

and

sentenced

imprisonment.

5

Bethea

to

235

months’

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II.
We

review

a

sentencing

Guidelines de novo.

court’s

interpretation

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.
determining

the

See United States v. Carter, 601 F.3d 252,

254 (4th Cir. 2010).

In

of

the

Guidelines’

plain

meaning,

See id.

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
criminal

U.S.S.G.

history

§

point

4A1.1(c),
for

sixty days imprisonment.

each

a
prior

defendant

receives

sentence

of

less

one
than

“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

Conduct).”

under

the

provisions

U.S.S.G. § 4A1.2 cmt. n.1.

6

of

§

1B1.3

(Relevant

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Relevant
defendant’s

Date Filed: 05/16/2011

conduct
offense

is

considered

level.

Page: 7 of 10

in

the

calculation

U.S.S.G.

See

§

of

1B1.3(a).

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).

includes

“all

acts

In

and

drug

omissions

cases,

relevant

described

in

conduct

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.”

Guidelines

U.S.S.G.

also

expressly

§

1B1.3(a)(2).

provide

that

However,
“offense

the

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
See U.S.S.G. § 1B1.2(a)

to the acts charged in the indictment.
(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
8

which

the

defendant

was

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convicted”); cf. United States v. Boulware, 604 F.3d 832, 835-36
(4th

Cir.

argument

2010)

(holding

regarding

the

determining

which

level,

description

the

that

actual

guideline
of

notwithstanding
nature

provision

the

offense

of

her

would
in

defendant’s
offense,

set

the

her

in

offense

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.”
district
simple

court

U.S.S.G. § 1B1.3 cmt. 8.
could

possession

trafficking

have

of

activities,

found

the

marijuana
the

conduct

Thus, even if the

conduct

convictions
would

“relevant conduct” under the Guidelines.

not

underlying
to
be

be

the
drug

considered

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.
light

of

our

holding

We need not resolve this issue.

that

the

court

correctly

treated

In
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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