United States v. Cordell Johnson
Opinion
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.
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
,
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
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, comment. (n.12(A) );
United States v. Hardeman
,
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
,
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
,
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
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee v. Cordell JOHNSON, Also Known as Cut, Defendant-Appellant
- Cited By
- 2 cases
- Status
- Published