UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

Vacated by Supreme Court, January 24, 2005
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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
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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