     Case: 18-31253      Document: 00515171909         Page: 1    Date Filed: 10/24/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                    No. 18-31253                     October 24, 2019
                                  Summary Calendar
                                                                      Lyle W. Cayce
                                                                           Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

THANH THAI TRAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:18-CR-30-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Thanh Thai Tran appeals his 40-month sentence after he pleaded guilty
to knowingly and intentionally possessing with the intent to distribute
marijuana in violation of 21 U.S.C. § 841(a)(1). During sentencing, the district
court deemed Tran a career offender pursuant to U.S.S.G. § 4B1.1(a). His
offense level was thus set at 17 because the statutory maximum term of
imprisonment for his conviction was five years. U.S.S.G. § 4B1.1(b)(6).


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-31253    Document: 00515171909     Page: 2   Date Filed: 10/24/2019


                                 No. 18-31253

      Prior to the application of the career offender enhancement, Tran’s base
offense level was 16 because the offense of conviction involved at least 20
kilograms but less than 40 kilograms of marijuana. U.S.S.G. § 2D1.1(c)(12).
Had the district court not classified additional marijuana seized by authorities
subsequent to Tran’s arrest as relevant conduct, Tran’s initial base offense
level would have been 14. U.S.S.G. § 2D1.1(c)(13). Tran argues that the
district court clearly erred in considering the subsequently seized marijuana
as relevant conduct. Specifically, had the district court not considered the
marijuana as relevant conduct, his base offense level would have been 14
instead of 16 thereby resulting in a lower sentencing range.
      Tran’s offense level of 17 as a career offender is greater than his
otherwise applicable offense level of 14 or 16; therefore, his career offender
offense level of 17 applies. See U.S.S.G. § 4B1.1(b). Tran has not challenged
the district court’s application of the career offender enhancement on appeal.
It is therefore irrelevant and harmless error if the district court incorrectly
calculated his otherwise applicable offense level based on the underlying
offense and relevant conduct. See United States v. Bams, 858 F.3d 937, 948–
49 (5th Cir. 2017); United States v. Godfrey, 449 F. App’x 383 (5th Cir. 2011);
United States v. Hollywood, 117 F. App’x 905, 906 (5th Cir. 2004), vacated on
other grounds, 544 U.S. 946 (2005); United States v. Ellsworth, 35 F. App’x 386
(5th Cir. 2002).
      Accordingly, the district court’s judgment is AFFIRMED.




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