FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 24, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-12239

Non-Argument Calendar

________________________

D. C. Docket No. 05-00191-CR-4

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DONALD WHITAKER, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(January 24, 2007)

Before ANDERSON, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

Donald Whitaker appeals his 150-month sentence for distribution of cocaine,
 We note that the Supreme Court has more recently held that a suspended or probated

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sentence of imprisonment entitles the defendant to the benefit of counsel. Alabama v. Shelton, 535

U.S. 654, 674, 122 S.Ct. 1764, 1776, 152 L.Ed.2d 888 (2002). We decline to address whether

Shelton applies in this case because Whitaker did not bring it to the district court’s attention and has

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21 U.S.C. § 841. First, Whitaker argues that his sentence should not be increased

based on a prior unrepresented misdemeanor conviction. Second, Whitaker argues

that he was indicted for selling cocaine “from his home and car in March of 2005,”

and that therefore other cocaine seized by police in 2004 was not part of the “same

course of conduct” under the guidelines and should not have been considered at

sentencing. After reviewing the parties’ briefs and the record as a whole, we find

no reversible error.

I.

“A district court’s application of the sentencing guidelines is subject to de

novo review.” United States v. Baker, 116 F.3d 870, 872 (11th Cir. 1997).

“[W]here no sentence of imprisonment was imposed, a defendant charged

with a misdemeanor ha[s] no constitutional right to counsel.” Nichols v. United

States, 511 U.S. 738, 743, 114 S.Ct. 1921, 1925, 128 L.Ed.2d 745 (1994) (citing

Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979)). In line with

that rule, the Supreme Court has held that an “uncounseled misdemeanor

conviction, valid under Scott because no prison term was imposed, is also valid

when used to enhance punishment at a subsequent conviction.” Nichols, 511 U.S. 1
not raised the case on appeal; thus, the issue is deemed waived. See Greenbriar, Ltd. v. City of

Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (holding that issues not raised on appeal are

deemed waived).

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at 749, 114 S.Ct. at 1928. 

According to the 2005 version of the sentencing guidelines, prior sentences

of imprisonment of at least 60 days are assigned between two and three criminal

history points, depending on length, and any other prior sentences not resulting in

such imprisonment is assigned one criminal history point. U.S.S.G. § 4A1.1(a)-

(c). The guidelines restrict the meaning of a “sentence of imprisonment” to cases

where the defendant “actually served a period of imprisonment” or would have had

the defendant not escaped, and expressly provide that “[a] sentence of probation is

to be treated as a sentence under § 4A1.1(c) unless a condition of probation

requiring imprisonment of at least sixty days was imposed.” U.S.S.G. § 4A1.2,

comment. (n. 2). The guidelines also note that “[p]rior sentences, not otherwise

excluded, are to be counted in the criminal history score, including uncounseled

misdemeanor sentences where imprisonment was not imposed.” U.S.S.G. § 4A1.2,

background comment. Finally, the guidelines expressly include convictions for

DUI in a defendant’s criminal history. U.S.S.G. § 4A1.2, comment. (n. 4).

In this case, as the court of conviction of the 2002 DUI did not impose a

sentence of imprisonment on Whitaker, the district court did not err by giving
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Whitaker one criminal history point for that conviction. Baker, 116 F.3d at 872.

II.

We review a district court’s finding as to relevant conduct only for clear

error. United States v. Blanc, 146 F.3d 847, 851 (11th Cir. 1998). If we “decide

that the district court misapplied the [g]uidelines, a remand is appropriate unless

we conclude[], on the record as a whole, that the error was harmless, i.e., that the

error did not affect the district court’s selection of the sentence imposed.” 

Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112,1120-21, 117

L.Ed.2d 341 (1992). 

Under the sentencing guidelines, two criminal history points are added to a

defendant’s criminal history if he “committed the instant offense while [on]

parole” (among other things). U.S.S.G. § 4A1.1(d). As used in sentencing, “the

instant offense” means “any relevant conduct.” U.S.S.G. § 4A1.1, comment.

(n. 4). “Activity that meets the definition of relevant conduct . . . must be fully

taken into account.” See Blanc, 146 F.3d at 851 (discussing “relevant conduct” in

the context of U.S.S.G. § 5G1.3).

“U.S.S.G. § 1B1.3 instructs district courts to consider not merely the

charged conduct, but rather all ‘relevant conduct’ . . . .” United States v. Hamaker,

455 F.3d 1316, 1336 (11th Cir. 2006). The guidelines define relevant conduct, in
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pertinent part, as:

all acts and omissions committed . . . or wilfully caused by the

defendant[, as well as] all reasonably foreseeable acts and omissions

of others in furtherance of [a] 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). Relevant conduct also includes “all acts and omissions

described . . . 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). Notably,

the commentary to this guideline states that “the defendant is accountable for all

quantities of contraband with which he was directly involved.” U.S.S.G. § 1B1.3,

comment. (n. 2). We interpret the provisions of the relevant conduct guideline

broadly. United States v. Behr, 93 F.3d 764, 765 (11th Cir. 1996). “[S]entencing

courts may consider both uncharged and acquitted conduct in determining the

appropriate sentence.” Hamaker, 455 F.3d at 1336.

At sentencing, Whitaker did not object to the PSI’s finding that the drugs

seized in 2004 were found in his former bedroom. Whitaker did assert that the

confidential informant’s information was unreliable, but he did not present any

evidence on this point or offer any argument explaining his assertion. Finally, he

challenged the reliability of his step-father’s statement that the drugs were his (i.e.

Whitaker’s), but only by noting that his parents had since been convicted on state
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charges related to the 2004 seizure. However, without knowing what those charges

were, it is difficult to determine whether establishing his parents’ guilt would

exonerate Whitaker. Further, as the district court noted, the fact that the state

refrained from charging Whitaker in that offense does not necessarily indicate that

it had no evidence to support such charges, but could simply reflect the state’s

recognition that Whitaker had been charged in federal court. Finally, Whitaker did

not challenge the fact that when he was ultimately arrested–roughly three months

after the 2004 seizure–and more drugs were found in his parents’ house, he

admitted that those drugs were his.

As it is well-settled that a sentencing court can use “uncharged or acquitted

conduct” in sentencing a defendant, Hamaker, 455 F.3d at 1336, and as Whitaker

has failed to present any evidence to rebut the facts alleged in the PSI, the district

court did not clearly err by concluding that the instant offense began as early as

December 2004. The information suggesting that Whitaker was connected to the

drugs seized in 2004 justified the conclusion that he had committed acts at that

time either in preparation for the offenses committed three months later, or as part

of the “conduct or common scheme or plan” of those later offenses. U.S.S.G.

§ 1B1.3(a)(1)-(2). Considered even more broadly, the information in the PSI,

along with the findings not disputed by Whitaker, supported a conclusion that
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Whitaker was “directly involved” with the 2004 drugs. U.S.S.G. § 1B1.3,

comment. (n. 2). Accordingly, the court correctly assigned Whitaker two

additional criminal history points because he was on parole in December 2004 at

the time he engaged in conduct relevant to the instant offense.

Further, even if the district court did err in this regard, the error was

harmless, as reducing Whitaker’s criminal history from 12 points to 10 points

would not, by itself, have reduced his criminal history category, and therefore

would not have reduced his guideline sentencing range. See U.S.S.G. Chapter 5,

Part A, Sentencing Table; Williams, 503 U.S. at 203, 112 S.Ct. at 1120-21. 

For the foregoing reasons, the judgment of the district court is

AFFIRMED.