UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4448

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

QUENTIN JEROME DAVIS,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Florence. R. Bryan Harwell, District Judge. 

(4:09-cr-00344-RBH-1)

Submitted: November 18, 2011 Decided: December 30, 2011

Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit 

Judges.

Affirmed by unpublished per curiam opinion.

Darren Scott Haley, Greenville, South Carolina, for Appellant. 

William N. Nettles, United States Attorney, Columbia, South 

Carolina, Nathan S. Williams, Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Quentin Jerome Davis pled guilty pursuant to a plea 

agreement to one count of conspiracy to distribute cocaine and 

cocaine base from October 2005 to March 2009 in violation of 21 

U.S.C. §§ 841(a) and 846. On appeal, Davis challenges the 

district court’s application of the Sentencing Guidelines, 

arguing that the district court erred by assigning one criminal 

history point for a March 16, 2006, state conviction for Simple 

Possession of Marijuana rather than treating the prior offense 

as relevant conduct for sentencing purposes. We affirm.

At sentencing, the district court held Davis accountable 

for 441 grams of crack cocaine and 3.157 kilograms of cocaine, 

yielding a base offense level of 32. The court awarded Davis a 

2-level adjustment for acceptance of responsibility under the

U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3E1.1(a) for a 

total offense level of 30. The sentencing court assigned Davis 

a criminal history category of II, based on two prior state 

court convictions, including a March 16, 2006, South Carolina 

conviction for simple possession of marijuana and driving under 

suspension for which Davis received a fine in magistrate court. 

The resulting advisory sentencing range was 108 to 135 months; 

however, because 21 U.S.C. § 841(b)(1)(A) prescribes a statutory 

minimum of 10 years, the effective sentencing range was 120 to 
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135 months. The district court imposed a sentence of 120 

months.

Davis objected to the assignment of one criminal history 

point for the March 16, 2006, simple possession of marijuana/DUS 

conviction, arguing that because “the indictment involves a drug 

conspiracy from at least October of 2005 up until the date of 

the Indictment, which was on March 4th of 2009, . . . the 

Driving Under Suspension and Simple Possession of Marijuana

[offense] . . . should also be considered conduct as to the 

underlying conspiracy.” J.A. 28-29. The district court 

rejected this argument, concluding that the March 16, 2006, 

offense for simple possession of marijuana was not part and 

parcel of the distribution conspiracy charged in the indictment; 

the court stated, “[t]his conspiracy involved cocaine base and 

powder cocaine. It did not involve marijuana” and also noted 

that “Simple Possession implies a user amount.” J.A. 31.

On appeal, Davis raises the same challenge to the 

assignment of a criminal history point to the prior conviction 

for simple possession of marijuana. According to Davis, without 

the point for this conviction, he would have been placed in 

Criminal History Category I and would have been eligible for the 

“safety valve” reduction in U.S.S.G. § 5C1.2. 

Prior sentences may be used to determine the defendant's 

criminal history category. See U.S.S.G. § 4A1.1. However, §
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4A1.1 excludes convictions for conduct that qualifies as

“relevant conduct” to the instant offense. See U.S.S.G. § 4A1.2 

cmt. n.1. Relevant conduct is conduct that was part of the same 

course of conduct or a common scheme or plan as the offense of 

conviction, and it may be used to increase the defendant’s base 

offense level. See U.S.S.G. § 1B1.3(a). In drug cases, 

relevant conduct “often includes a broader range of conduct than 

the conduct underlying the offense of conviction” since it 

consists of “‘all acts and omissions . . . that were part of the 

same course of conduct or common scheme or plan as the offense 

of conviction.’” United States v. Young, 609 F.3d 348, 358 (4th 

Cir. 2010) (quoting U.S.S.G. § 1B1.3(a)(2)). 

The district court’s conclusion that the simple possession 

offense was not “part of the same course of conduct” as that 

charged in the underlying offense was a factual determination. 

The court reviews a district court’s factual determinations

concerning relevant conduct for clear error. See United States 

v. Hodge, 354 F.3d 305, 313 (4th Cir. 2004). If the district 

court’s account is plausible in light of the entire record, we 

will not reverse the finding simply because we would have come 

to a different conclusion. See United States v. Stevenson, 396 

F.3d 538, 542 (4th Cir. 2005). 

The district court’s conclusion that the prior offense was 

not part of the instant conspiracy does not amount to clear 
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error. Davis argues that the prior offense should be classified 

as relevant conduct because it occurred during the conspiracy 

period, involved suppliers who also participated in the 

conspiracy, and involved a common purpose, i.e., the resale of 

controlled substances for profit. The fact that another offense 

occurs during the conspiracy timeframe, however, does not 

convert it into relevant conduct automatically. See U.S.S.G. 

§ 4A1.2 cmt. n.1 (“‘Prior sentence’ means a sentence imposed 

prior to sentencing on the instant offense, other than a 

sentence for conduct that is part of the instant offense. A 

sentence imposed after the defendant's commencement of the 

instant offense, but prior to sentencing on the instant offense, 

is a prior sentence if it was for conduct other than conduct 

that was part of the instant offense.” (emphasis added) 

(internal citation omitted)). The underlying distribution 

conspiracy was a cocaine-only conspiracy; the prior conviction 

involved the possession of marijuana. Moreover, as the district 

court observed, the fact that the prior conviction was for 

“simple possession” suggested the Davis was holding a small 

amount for personal use. See State v. Adams, 352 S.E.2d 483, 

485-86 (S.C. 1987) (explaining that “simple possession” involves 

an amount less than necessary to trigger the presumption of an 

intent to distribute). Because these conclusions were 

reasonable and plausible in light of the record, we will not 
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disturb the district court’s determination that the prior simple 

possession offense did not constitute relevant conduct.*

Based on the foregoing, we affirm the judgment of the 

district court. 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 in the 

decisional process.

AFFIRMED

 

 * In light of this conclusion, we need not address the 

question of whether the appeal waiver clause contained in the 

plea agreement is enforceable.