IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40278
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPE MAGALLANES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-97-CR-326-2
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March 3, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Felipe Magallanes challenges his conviction and sentence
for conspiracy to possess with intent to distribute 349 grams of
cocaine base (count 1); possession with intent to distribute 26
grams of cocaine base (count 3); possession with intent to
distribute 138 grams of cocaine base (count 4); possession with
intent to distribute 171 grams of cocaine base (count 5);
unlawfully possessing a Smith & Wesson .22 caliber semi automatic
pistol from which the serial number had been obliterated (count
*
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that this opinion should not be published and is not precedent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. 98-40278
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6); being a felon in possession of a Smith and Wesson revolver,
.38 caliber (count 7); and being a felon in possession of a Smith
& Wesson .22 caliber semi automatic pistol (count 8).
As conceded by the Government, Magallanes’ convictions on
counts 7 and 8 violate the Double Jeopardy Clause. See United
States v. Berry, 977 F.2d 915, 919-20 (5th Cir. 1992). The case
is remanded to the district court so that it may vacate one of
the convictions and resentence Magallanes.
We find that Magallanes’ other arguments lack merit. The
district court’s questioning of witnesses did not amount to plain
error. See United States v. Cantu, ___ F.3d ____, 1999 WL 46977
*3-*4 (5th Cir. Feb. 3, 1999). Convictions on counts 6 and 8 do
not violate Double Jeopardy. See United States v. Mansolo, 129
F.3d 749, 750 (5th Cir. 1997); United States v. Nation, 832 F.2d
71, 74 (5th Cir. 1987). Magallanes argues that evidence was
insufficient to support conviction for possession of cocaine base
in count 5 on the ground that the evidence showed that he
possessed only powder cocaine. An indictment need only allege,
and a jury need only find, that the substance at issue was a form
of cocaine, whether or not it was the cocaine base form of
cocaine is purely a sentencing factor.” United States v. Deisch,
20 F.3d 139, 151 (5th Cir. 1994). Evidence was sufficient to
support a conviction beyond a reasonable doubt that Magallanes
knowingly possessed a firearm with an obliterated serial number.
See United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir.
1992)(standard for sufficiency of the evidence); United States v.
Moore, 54 F.3d 92, 101 (2d Cir. 1995). The district court did
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not commit error, plain or otherwise, by assessing a point for a
previous assault conviction when sentencing Magallanes. U.S.S.G.
§§ 4A1.1(c), 4A1.2(c)(1). Counsel was not ineffective for
failing to object to the addition of this point at sentencing.
See Smith v. Puckett, 907 F.2d 581, 585 n. 6 (5th Cir.
1990)(“[c]ounsel is not deficient for, and prejudice does not
issue from, failure to raise a legally meritless claim").
AFFIRMED IN PART; VACATED AND REMANDED IN PART.