                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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