United States v. Allison , 89 F. App'x 472 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41787
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY EARL ALLISON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-674-ALL
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Terry Earl Allison challenges his conviction and sentence
following a jury trial for possession of pseudoephedrine with
intent to manufacture a controlled substance. 21 U.S.C.
§§ 802(34)(K) and 841(c)(2). He argues that 1) the evidence
supporting his conviction was insufficient; 2) the district court
plainly erred in calculating his criminal history score and
criminal history category and erred in classifying him as a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-41787
-2-
career offender; and 3) the condition in his written judgment of
his supervised release barring his possession of a dangerous
weapon should be stricken because it conflicts with the sentence
orally pronounced by the district court.
The evidence introduced at trial was sufficient to support
the jury’s finding that Allison knowingly and intentionally
possessed pseudoephedrine with the intent to manufacture a
controlled substance. See United States v. Gutierrez-Farias, 294
F.3d 657, 660 (5th Cir. 2002), cert. denied, 537 U.S. 1114
(2003); 21 U.S.C. § 841(c)(2).
As Allison concedes, his argument challenging the condition
of his supervised release that he not possess a dangerous weapon
is foreclosed by United States v. Torres-Aguilar, 352 F.3d 934,
935-38 (5th Cir. 2003).
For the first time on appeal, Allison challenges the
district court’s calculation of his criminal history score and
the determination of his criminal history category and also
argues, for the first time on appeal, that the district court
erroneously classified him as a career offender under U.S.S.G.
§ 4B1.1. “Under the plain error standard, forfeited errors are
subject to review only where the errors are ‘obvious,’ ‘clear,’
or ‘readily apparent,’ and they affect the defendant’s
substantial rights.” United States v. Clayton, 172 F.3d 347, 351
(5th Cir. 1999)(citation omitted); United States v. Reyna,
No. 02-41787
-3-
__F.3d__, 2004 WL 11379 at *5 (5th Cir. Jan. 26, 2004) (No. 01-
41164) (en banc).
As the Government concedes, the district court erred to the
extent that Allison’s 20 criminal history points included nine
points for three suspended sentences. See U.S.S.G.
§ 4A1.2(e)(2). The district court also erred in assigning
Allison two criminal history points for an outstanding bench
warrant. See U.S.S.G. § 4A1.1(d) and comment. (n.4). Finally,
Allison should not have been classified as a career offender for
purposes of U.S.S.G. § 4B1.1(a).
Allison’s total offense level of 36 and corrected criminal
history category of IV results in a corrected imprisonment range
under the Sentencing Guidelines of 262 to 327 months’
imprisonment. U.S.S.G. Chapter 5, Part A, Sentencing Table.
Because the minimum sentence under the corrected guidelines range
is higher than the 240-month statutory maximum sentence, Allison
is subject to the same 240-month sentence as he originally
received. U.S.S.G. § 5G1.1(a); 21 U.S.C. § 841(c)(2). Thus, we
AFFIRM Allison’s 240-month prison sentence AS MODIFIED to reflect
that for sentencing purposes, Allison is not a career offender
under U.S.S.G. 4B1.1(a), and his corrected criminal history
category is IV.
JUDGMENT OF CONVICTION AFFIRMED; SENTENCE AFFIRMED AS
MODIFIED.