United States v. Dewitt , 100 F. App'x 145 ( 2004 )

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4755
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY DEWITT,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-02-211)
Submitted: May 19, 2004 Decided: June 4, 2004
Before WIDENER, WILKINSON, and NIEMEYER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric B. Snyder, BAILEY & GLASSER, L.L.P., Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
John L. File, Assistant United States Attorney, Beckley, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Dewitt appeals his 168-month sentence imposed
after he pled guilty to distribution of more than five grams of
crack, in violation of 21 U.S.C. § 841(a)(1) (2000). Dewitt
contends that the district court plainly erred in assessing two
criminal history points under U.S. Sentencing Guidelines Manual
§ 4A1.1(d) (2002). We affirm.
Pursuant to USSG § 4A1.1(d), two criminal history points
“are added if the defendant committed any part of the instant
offense (i.e., any relevant conduct) while under any criminal
justice sentence, including probation . . . .” USSG § 4A1.1(d),
comment. (n.4). Dewitt asserts that he did not commit the instant
offense while subject to another criminal justice sentence because
he had completed his twelve-month probationary sentence for a
battery conviction on April 7, 2001, and his relevant conduct
relating to the instant offense began, at the earliest, on July 30,
2001—-the date on which co-defendant Emmanuel Donte Scott sold
crack to a confidential informant in a controlled buy. We
disagree.
The district court determined at sentencing that Dewitt’s
relevant conduct included Scott’s sales of crack to Oliver Tobias
Scott during four or five months in 2000. See USSG § 1B1.3; United
States v. Kennedy, 32 F.3d 876, 890 (4th Cir. 1994) (“This broad
concept of ‘relevant conduct’ includes activities that occurred
- 2 -
before the date identified by the indictment as the starting date
of the offense.”); United States v. Harris, 932 F.2d 1529, 1538
(5th Cir. 1991) (holding that “pre-indictment activities may
properly be considered when determining the applicability of
section 4A1.1(d) or (e)”). Dewitt’s probation began on April 7,
2000, and ended on April 7, 2001. Because Dewitt’s commission of
the instant offense, including relevant conduct, occurred while he
was on probation, we find no plain error in the district court’s
assessment of two criminal history points under USSG § 4A1.1(d).
See United States v. Osborne, 345 F.3d 281, 284 (4th Cir. 2003)
(discussing plain error standard of review); see United States v.
Vital, 68 F.3d 114, 119 (5th Cir. 1995) (stating that questions of
fact that could have been resolved by the district court had
objection been made at sentencing can never constitute plain
error).
Accordingly, we affirm Dewitt’s 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
- 3 -