United States v. Thomas Bess ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4108
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS DREW BESS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. David A. Faber, Senior District Judge. (2:20-cr-00024-1)
Submitted: November 18, 2021 Decided: November 19, 2021
Before MOTZ and HARRIS, Circuit Judges. *
Affirmed by unpublished per curiam opinion.
Richard W. Weston, WESTON | ROBERTSON, Hurricane, West Virginia, for Appellant.
Lisa G. Johnston, Acting United States Attorney, L. Alexander Hamner, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
*
This opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Thomas Drew Bess appeals the 360-month sentence imposed following his guilty
plea, without a plea agreement, to conspiracy to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846. On appeal, Bess contends
that the district court erred in applying a four-level sentencing enhancement based on his
leadership role in the organization, pursuant to U.S. Sentencing Guidelines Manual § 3B1.1
(2018). Bess also challenges his classification as a career offender under USSG § 4B1.1.
Finding no reversible error, we affirm.
We “review[] a sentence for reasonableness, . . . appl[ying] a deferential abuse-of-
discretion standard.” United States v. Ketter, 908 F.3d 61, 67 (4th Cir. 2018) (internal
quotation marks omitted). We “must first ensure that the district court committed no
significant procedural error,” such as improperly calculating the Sentencing Guidelines
range, failing to consider the 18 U.S.C. § 3553(a) sentencing factors, or inadequately
explaining the sentence imposed. Gall v. United States, 552 U.S. 38, 51 (2007). If the
sentence is free from significant procedural error, we review it for substantive
reasonableness, “tak[ing] into account the totality of the circumstances.” Id.“In assessing whether a sentencing court has properly applied the Guidelines, we
review factual findings for clear error and legal conclusions de novo.” United States v.
Thompson, 874 F.3d 412, 414 (4th Cir. 2017) (internal quotation marks omitted); see
United States v. Thorson, 633 F.3d 312, 317 (4th Cir. 2011) (recognizing that district
court’s determination that defendant was “an organizer or leader” is factual finding
reviewed for clear error). A defendant qualifies for a four-level enhancement if he “was
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an organizer or leader of a criminal activity that involved five or more participants or was
otherwise extensive.” USSG § 3B1.1(a). Factors distinguishing a leadership or
organization role from lesser roles include:
the exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right
to a larger share of the fruits of the crime, the degree of participation in
planning or organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised over others.
USSG § 3B1.1 cmt. n.4.
In determining that the four-level enhancement applied, the district court considered
a U.S. Postal Inspector’s testimony at sentencing about both the investigation into the
conspiracy as well as the debrief of one of Bess’ coconspirators. The court found by a
preponderance of the evidence that, in furtherance of the conspiracy, Bess would fly to
California from Florida, obtain drugs, and mail them to West Virginia to various
coconspirators—involving at least five individuals—for sale in West Virginia. Text
messages between Bess and a coconspirator confirmed Bess’ involvement and oversight
of the operation. We conclude that the district court did not clearly err in applying a four-
level leadership enhancement under USSG § 3B1.1 based on these facts.
Bess next contends, and the Government concedes, that his career offender
enhancement was erroneously applied because a conspiracy conviction under 21 U.S.C.
§ 846 is not categorically a “controlled substance offense,” as required by USSG § 4B1.1.
See United States v. Norman, 935 F.3d 232, 239 (4th Cir. 2019). The Government argues
that this error is harmless because the career offender enhancement increased only Bess’
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criminal history category (from category V to category VI) and had no impact on his
Sentencing Guidelines range, which remained 360 months to life imprisonment.
“[I]t is unnecessary to vacate a sentence based on an asserted [G]uidelines
calculation error if we can determine from the record that the asserted error is harmless.”
United States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017).
A Guidelines error is considered harmless if we determine that (1) the district
court would have reached the same result even if it had decided the
[G]uidelines issue the other way, and (2) the sentence would be reasonable
even if the [G]uidelines issue had been decided in the defendant’s favor.
United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) (internal quotation
marks omitted). Here, the erroneous application of the career offender enhancement had
no impact on Bess’ Sentencing Guidelines range. In addition, the district court emphasized
its belief that it would be justified in imposing a life sentence in light of Bess’ prolific
criminal history, and that a sentence any lower than 360 months would not adequately
address the statutory sentencing goals. In light of the thoroughness of the district court’s
reasoning and the deferential standard of review we apply when reviewing criminal
sentences, Gall, 552 U.S. at 41, we conclude that any error in the district court’s application
of the career offender enhancement was harmless.
Accordingly, we 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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