United States v. Bess ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4111
TIMOTHY LEE BESS,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4112
TIMOTHY LEE BESS,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-00-51, CR-00-149)
Submitted: August 31, 2001
Decided: October 24, 2001
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John R. McGhee, Jr., KAY, CASTO & CHANEY, P.L.L.C., Charles-
ton, West Virginia, for Appellant. Charles T. Miller, United States
2 UNITED STATES v. BESS
Attorney, Samuel D. Marsh, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Timothy Lee Bess pled guilty to one count of heroin distribution,
21 U.S.C.A. § 841(a) (West 1999), and was sentenced to a term of
thirty-seven months imprisonment. Bess was serving a term of super-
vised release at the time he committed the instant offense. The district
court revoked his supervised release and imposed a sentence of
twelve months imprisonment. The sentences were to be served con-
secutively. Bess appeals both sentences, contending that the district
court erred in making a two-level adjustment for an aggravated role
in the offense, U.S. Sentencing Guidelines Manual § 3B1.1(c) (2000),
and in departing upward from criminal history category V to category
VI pursuant to USSG § 4A1.3, p.s. He also argues that the district
court abused its discretion when it ordered that the thirty-seven-month
sentence for heroin distribution run consecutively to the twelve-month
supervised release revocation sentence. We affirm.
Bess was arrested after he sold heroin to two confidential infor-
mants in four monitored transactions. There was evidence that Bess
exercised some supervisory authority over at least one other person
during the course of his drug sales. The district court’s factual deter-
mination concerning a defendant’s role in the offense is reviewed for
clear error. United States v. Perkins, 108 F.3d 512, 518 (4th Cir.
1997). We find that the district court did not clearly err in applying
the two-level adjustment under § 3B1.1(c).
We also find that the district court did not abuse its discretion in
departing to criminal history category VI. Koon v. United States, 518
UNITED STATES v. BESS 3
U.S. 81, 100 (1996) (setting out standard of review). A criminal his-
tory category that does not reflect the seriousness of the defendant’s
past criminal conduct or the likelihood that he will commit future
crimes is a factor for which departures are encouraged. USSG
§ 4A1.3. An encouraged factor may be the basis for a departure unless
it is already taken into account by the applicable guideline. United
States v. Rybicki, 96 F.3d 754, 757-58 (4th Cir. 1996). A departure
is specifically encouraged for sentences too old to be counted that
were imposed for serious criminal conduct that is not similar to the
instant offense. USSG § 4A1.2, cmt. n.8; United States v. Rusher, 966
F.2d 868, 882 (4th Cir. 1992).
In a pre-sentencing memorandum, the district court set out the fol-
lowing factors supporting a departure: (1) a high likelihood of recidi-
vism given that Bess had participated in six substance abuse programs
over ten years but continued to engage in criminal activity to support
his drug habit; (2) Bess’ six prior adult convictions that were too old
to be counted toward his criminal history score, including convictions
for grand larceny, assault (stabbing), and two drug convictions; and
(3) Bess’ thirty prior adult arrests not resulting in a conviction, six of
which were for drug violations.*
Bess argues that two of his outdated prior offenses—the grand lar-
ceny and the assault—were not serious crimes. However, we are satis-
fied that both crimes were serious criminal conduct and were properly
considered by the district court as a basis for departure. Bess also con-
tends that his recidivism over a period of twenty years was simply a
result of the failure of the drug treatment programs he has previously
undergone. Regardless of the reason for his recidivism, the district
court did not err in regarding Bess’ long criminal record as an indica-
tion of future criminal conduct. Finally, Bess suggests that the district
court departed upward to compensate for reducing his offense level.
The record does not support this conclusory claim. The district court
thoroughly explained its reasons for the upward departure. Therefore,
we find that the district court did not abuse its discretion in determin-
*The court noted that an arrest record alone is not a basis for depar-
ture, USSG § 4A1.3, but that prior similar criminal conduct not resulting
in a conviction may be considered as a basis for departure. USSG
§ 4A1.3(e).
4 UNITED STATES v. BESS
ing that criminal history category V underrepresented the seriousness
of Bess’ past criminal conduct and in departing upward to category
VI.
Last, Bess contends that the district court abused its discretion
when it made his sentence for the drug conviction consecutive to the
sentence imposed upon revocation of his supervised release because
both sentences are based on the same conduct. Because Bess did not
raise this issue in the district court, it is reviewed for plain error.
United States v. Olano, 507 U.S. 725, 731-32 (1993) (to obtain rever-
sal for unpreserved error, defendant must show error that was plain,
affected substantial rights, and must be corrected because it seriously
affects the fairness, integrity, or public reputation of judicial proceed-
ings).
We find no error. Under 18 U.S.C. § 3584(a) (1994), when the dis-
trict court imposes multiple sentences, it has discretion to make them
concurrent or consecutive. However, the court is directed in USSG
§ 7B1.3(f) to impose a consecutive sentence upon revocation of
supervised release when the defendant is serving a term of imprison-
ment, even when it is for the same conduct that resulted in revocation
of his supervised release. While § 7B1.3(f) is advisory only, see
United States v. Davis, 53 F.3d 638, 639 n.1 (4th Cir. 1995), the dis-
trict court did not abuse its discretion in following it.
We therefore affirm the sentence. 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 the decisional
process.
AFFIRMED