United States v. Cordell Johnson ( 2018 )

Case: 17-30937 Document: 00514691985 Page: 1 Date Filed: 10/22/2018
REVISED October 22, 2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-30937 October 19, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CORDELL JOHNSON, also known as Cut,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:
Cordell Johnson pleaded guilty of conspiracy to distribute and possess
with intent to distribute cocaine, and he was sentenced within the guidelines
range to a statutory-minimum 120-month term of imprisonment and to a five-
year period of supervised release. Johnson contends that the district court
erred in assigning a single criminal history point under U.S.S.G. § 4A1.1(c) to
each of two prior criminal matters: (1) a 2000 conviction of carrying a concealed
weapon; and (2) a 1999 simple battery with no medical treatment.
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No. 17-30937
As Johnson concedes, our review is for plain error. Johnson must
establish a plain and obvious error that affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
this court has the discretion to correct the error if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id. Sentencing
errors affect substantial rights if there is “a reasonable probability that, but
for the district court’s error, the appellant would have received a lower
sentence.” United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).
Although he was sentenced to the statutory minimum sentence, Johnson
asserts that the errors affected his substantial rights because the additional
criminal history points disqualified him from eligibility for a safety valve
adjustment. Johnson was assessed a single criminal history point for another
prior sentence, which he has not challenged; thus, a failure to persuade this
court that the district court plainly erred in assigning a criminal history point
to either prior offense at issue herein would leave Johnson with two criminal
history points and, therefore, ineligible for the safety valve adjustment. See 18
U.S.C. § 3553(f).
Johnson contends that the carrying a concealed weapon offense should
not have been counted because it was similar to the listed offense of driving
without a license. See U.S.S.G. § 4A1.2(c)(1). His argument is that the offenses
are similar in that he was punished for carrying a concealed weapon because
he did not have a concealed carry permit. Johnson asserts that, for the same
reason, the offense should not have been counted because it was similar to a
fish and game violation, which is among the listed offenses that are never
counted. See § 4A1.2(c)(2).
We apply a common-sense approach in determining whether a sentence
is for an offense that is similar to an offense listed in § 4A1.2(c). See § 4A1.2,
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No. 17-30937
comment. (n.12(A)); United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.
1991); see also United States v. Hernandez, 634 F.3d 317, 319 (5th Cir. 2011).
Under the common-sense approach, this court “determine[s] whether the past
conduct is ‘relevant to the goals of sentencing’—that is, whether the offense
was sufficiently serious or indicative of future criminality that the defendant
should be subject to heightened punishment.” Hernandez, 634 F.3d at 319
(quoting Hardeman, 933 F.2d at 281). Because the default rule is one of
inclusion, doubts are resolved in favor of counting the offense. Hernandez, 634
F.3d at 319. Offenses are regarded as dissimilar if they involve a more culpable
state of mind or an increased risk of harm to others. Id. at 320.
A person commits an offense of illegal carrying a weapon by intentionally
concealing a firearm on his person, not by failing to have a concealed carry
permit. LA. REV. STAT. ANN. § 14:95(A)(1); State v. Dyer, 388 So. 2d 374, 376
(La. 1980). The offense of driving without a license does not require a showing
of specific intent. See LA. REV. STAT. ANN. § 32:52; State v. Sherman, 931 So.
2d 286, 291 (La. 2006); State v. Pickering, 432 So. 2d 1067, 1071 (La Ct. App.
1983). The elements of the two offenses are not similar. Although Johnson
contends that he was improperly convicted of the carrying a concealed weapon
offense because the weapon was found in his vehicle and not on his person and
that the conviction was uncounseled, we will not consider issues raised for the
first time in a reply brief. See United States v. Green, 46 F.3d 461, 465 n.3 (5th
Cir. 1995); see also United States v. Longstreet, 603 F.3d 273, 276-77 (5th Cir.
2010).
The two offenses are also dissimilar because the carrying a concealed
weapons offense involves a more culpable state of mind and an increased risk
of harm to others. See Hernandez, 634 F.3d at 320; see also State in Interest of
J.M., 144 So. 3d 853, 856, 864-65 (La. 2014); United States v. Williams, 588 F.
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No. 17-30937
App’x 348, 349 (5th Cir. 2014). Johnson’s contention that the offense is similar
to a fish and game violation suffers from the same infirmities. The district
court did not commit a plain or obvious error in assigning a criminal history
point to the prior sentence for carrying a concealed weapon. See Puckett, 556
U.S. at 135; see also Hernandez, 634 F.3d at 319-20.
Because Johnson has not shown that his substantial rights were
affected, we have not considered whether the district court plainly erred in
assigning a criminal history point to the 1999 simple battery offense. See
Puckett, 556 U.S. at 135; see also Davis, 602 F.3d at 647. The judgment is
AFFIRMED.
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