                             UNPUBLISHED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                      Decided:   May 16, 2011


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


Affirmed by unpublished per curiam opinion.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.
Unpublished opinions are not binding precedent in this circuit.




                                2
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.                      Bethea was

indicted    along    with    four     co-conspirators         for    conspiracy     to

possess with intent to distribute and to distribute crack and

powder   cocaine    from    January    1,    2000,    until    May     2008,    during

their association with the Villagomez group.                        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.

                                         3
       Bethea’s          presentence     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    state       court   convictions     for      simple

possession of marijuana. *             See U.S.S.G. § 4A1.1(c).              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”).



                                             4
marijuana and was sentenced to 30 days’ imprisonment, suspended

upon payment of a $200 fine.                  The second (“the 1998 offense”)

arose    out    of    a    1998    incident       in    which    a   highway    patrolman

searching      Bethea’s      car    after    a     traffic      stop   found    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.                    Bethea pleaded guilty to simple

possession       of       marijuana    and        was    sentenced       to     30    days’

imprisonment or a $565 fine.              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.     The district court overruled Bethea’s objection to his

criminal       history     score    and     sentenced      Bethea      to     235    months’

imprisonment.



                                              5
                                            II.

      We     review    a     sentencing         court’s       interpretation         of     the

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

254 (4th Cir. 2010).             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.                              See id.

In    determining        the       Guidelines’         plain       meaning,       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     U.S.S.G.       §     4A1.1(c),         a     defendant       receives       one

criminal     history       point    for    each      prior    sentence       of    less   than

sixty days imprisonment.              “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     under      the    provisions         of    §   1B1.3      (Relevant

Conduct).”      U.S.S.G. § 4A1.2 cmt. n.1.




                                                6
     Relevant      conduct    is    considered         in     the    calculation       of    a

defendant’s     offense      level.         See    U.S.S.G.         §    1B1.3(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).          In        drug     cases,      relevant    conduct

includes    “all     acts    and    omissions          described        in   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
                                            7
“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.”           U.S.S.G.          §    1B1.3(a)(2).                However,      the

Guidelines       also      expressly      provide              that     “offense          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

to the acts charged in the indictment.                         See U.S.S.G. § 1B1.2(a)

(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       which         the     defendant       was

                                              8
convicted”); cf. United States v. Boulware, 604 F.3d 832, 835-36

(4th     Cir.   2010)    (holding          that     notwithstanding             defendant’s

argument    regarding      the    actual          nature     of     her     offense,       in

determining     which    guideline         provision        would    set       her    offense

level,    the   description      of    the       offense    in    the   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.”         U.S.S.G. § 1B1.3 cmt. 8.                    Thus, even if the

district    court    could     have    found        the    conduct      underlying        the

simple     possession     of      marijuana          convictions           to        be   drug

trafficking     activities,      the       conduct        would   not     be    considered

“relevant conduct” under the Guidelines.                     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

                                             9
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.        We need not resolve this issue.          In

light    of   our   holding   that   the    court   correctly   treated   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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