                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4448


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

QUENTIN JEROME DAVIS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:09-cr-00344-RBH-1)


Submitted:   November 18, 2011            Decided:     December 30, 2011


Before TRAXLER,   Chief   Judge,   and    MOTZ   and   KEENAN,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Darren Scott Haley, Greenville, South Carolina, for Appellant.
William N. Nettles, United States Attorney, Columbia, South
Carolina, Nathan S. Williams, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Quentin   Jerome      Davis   pled    guilty     pursuant    to   a   plea

agreement to one count of conspiracy to distribute cocaine and

cocaine base from October 2005 to March 2009 in violation of 21

U.S.C.   §§ 841(a)   and    846.    On     appeal,    Davis   challenges    the

district   court’s   application      of    the      Sentencing   Guidelines,

arguing that the district court erred by assigning one criminal

history point for a March 16, 2006, state conviction for Simple

Possession of Marijuana rather than treating the prior offense

as relevant conduct for sentencing purposes.             We affirm.

     At sentencing, the district court held Davis accountable

for 441 grams of crack cocaine and 3.157 kilograms of cocaine,

yielding a base offense level of 32.           The court awarded Davis a

2-level adjustment for acceptance of responsibility under the

U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3E1.1(a) for a

total offense level of 30.         The sentencing court assigned Davis

a criminal history category of II, based on two prior state

court convictions, including a March 16, 2006, South Carolina

conviction for simple possession of marijuana and driving under

suspension for which Davis received a fine in magistrate court.

The resulting advisory sentencing range was 108 to 135 months;

however, because 21 U.S.C. § 841(b)(1)(A) prescribes a statutory

minimum of 10 years, the effective sentencing range was 120 to



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135   months.       The    district       court     imposed      a     sentence         of   120

months.

      Davis objected to the assignment of one criminal history

point for the March 16, 2006, simple possession of marijuana/DUS

conviction, arguing that because “the indictment involves a drug

conspiracy from at least October of 2005 up until the date of

the Indictment,       which       was    on   March      4th   of    2009,     .    .    .   the

Driving    Under    Suspension          and    Simple     Possession       of      Marijuana

[offense] . . . should also be considered conduct as to the

underlying       conspiracy.”           J.A.      28-29.         The    district          court

rejected    this    argument,       concluding          that   the     March       16,    2006,

offense    for    simple    possession         of   marijuana        was   not      part     and

parcel of the distribution conspiracy charged in the indictment;

the court stated, “[t]his conspiracy involved cocaine base and

powder cocaine.        It did not involve marijuana” and also noted

that “Simple Possession implies a user amount.”                        J.A. 31.

      On   appeal,        Davis     raises        the     same      challenge        to      the

assignment of a criminal history point to the prior conviction

for simple possession of marijuana.                     According to Davis, without

the point for this conviction, he would have been placed in

Criminal History Category I and would have been eligible for the

“safety valve” reduction in U.S.S.G. § 5C1.2.

      Prior sentences may be used to determine the defendant's

criminal history category.                See U.S.S.G. § 4A1.1.                 However, §

                                              3
4A1.1     excludes   convictions     for       conduct     that       qualifies   as

“relevant conduct” to the instant offense.                See U.S.S.G. § 4A1.2

cmt. n.1.     Relevant conduct is conduct that was part of the same

course of conduct or a common scheme or plan as the offense of

conviction, and it may be used to increase the defendant’s base

offense    level.     See   U.S.S.G.       §   1B1.3(a).         In    drug   cases,

relevant conduct “often includes a broader range of conduct than

the   conduct   underlying    the    offense      of     conviction”      since   it

consists of “‘all acts and omissions . . . that were part of the

same course of conduct or common scheme or plan as the offense

of conviction.’”     United States v. Young, 609 F.3d 348, 358 (4th

Cir. 2010) (quoting U.S.S.G. § 1B1.3(a)(2)).

      The district court’s conclusion that the simple possession

offense was not “part of the same course of conduct” as that

charged in the underlying offense was a factual determination.

The   court   reviews   a   district       court’s     factual    determinations

concerning relevant conduct for clear error.                 See United States

v. Hodge, 354 F.3d 305, 313 (4th Cir. 2004).                     If the district

court’s account is plausible in light of the entire record, we

will not reverse the finding simply because we would have come

to a different conclusion.          See United States v. Stevenson, 396

F.3d 538, 542 (4th Cir. 2005).

      The district court’s conclusion that the prior offense was

not part of the instant conspiracy does not amount to clear

                                       4
error.     Davis argues that the prior offense should be classified

as relevant conduct because it occurred during the conspiracy

period,        involved        suppliers       who     also      participated         in     the

conspiracy, and involved a common purpose, i.e., the resale of

controlled substances for profit.                     The fact that another offense

occurs     during       the     conspiracy         timeframe,        however,        does     not

convert it into relevant conduct automatically.                                See U.S.S.G.

§ 4A1.2 cmt. n.1 (“‘Prior sentence’ means a sentence imposed

prior     to    sentencing        on    the    instant        offense,       other     than    a

sentence for conduct that is part of the instant offense.                                      A

sentence       imposed     after       the    defendant's           commencement       of    the

instant offense, but prior to sentencing on the instant offense,

is a prior sentence if it was for conduct other than conduct

that     was     part     of     the    instant       offense.”           (emphasis       added)

(internal       citation        omitted)).            The     underlying       distribution

conspiracy was a cocaine-only conspiracy; the prior conviction

involved the possession of marijuana.                       Moreover, as the district

court    observed,        the    fact    that      the      prior    conviction       was     for

“simple    possession”          suggested       the      Davis      was    holding    a     small

amount for personal use.                See State v. Adams, 352 S.E.2d 483,

485-86 (S.C. 1987) (explaining that “simple possession” involves

an amount less than necessary to trigger the presumption of an

intent     to     distribute).                Because        these        conclusions        were

reasonable and plausible in light of the record, we will not

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disturb the district court’s determination that the prior simple

possession offense did not constitute relevant conduct. *

     Based     on   the    foregoing,      we   affirm   the   judgment     of   the

district   court.         We   dispense    with   oral   argument   because      the

facts    and   legal   contentions        are   adequately     presented    in   the

materials before the court and argument would not aid in the

decisional process.

                                                                           AFFIRMED




     *
       In light of this conclusion, we need not address the
question of whether the appeal waiver clause contained in the
plea agreement is enforceable.



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