IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21039
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN CORNELL JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-306-ALL
October 17, 2002
Before GARWOOD, WIENER, and DENNIS, Circuit Judges.
PER CURIAM*:
Steven Cornell Johnson appeals his conviction and sentence
following his guilty plea to possession with the intent to
distribute crack cocaine, a violation of 21 U.S.C. § 841(a)(1). He
raises the following three arguments on appeal: (1) whether 21
U.S.C. § 841(a) and (b) are unconstitutional in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000); (2) whether the district court
*
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opinion should not be published and is not precedent except under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.
committed plain error in assigning Johnson four criminal history
points; and (3) whether the district court erred in enhancing
Johnson’s sentence pursuant to U.S.S.G. § 2D1.1(B)(1).
Johnson concedes that the issue whether 21 U.S.C. § 841(a) and
(b) are unconstitutional in light of Apprendi is foreclosed by
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000),
cert. denied, 532 U.S. 1045 (2001), and he raises it only to
preserve its further review. The issue is indeed foreclosed by
Slaughter, as well as by United States v. Fort, 248 F.3d 475, 482
(5th Cir.), cert. denied, 122 S.Ct. 405 (2001), and we are bound by
those decisions absent an intervening Supreme Court decision or a
subsequent en banc decision. See United States v. Short, 181 F.3d
620, 624 (5th Cir. 1999).
We hold that even if the district court erred in using two
1990 sentences to increase Johnson’s criminal history points,
Johnson cannot survive the plain error standard of review because
notwithstanding the error, the district court could have imposed
the same sentence. See United States v. Leonard, 157 F.3d 343, 346
(5th Cir. 1998); United States v. Alford, 157 F.3d 825, 830-31 (5th
Cir. 1998); United States v. Ravitch, 128 F.3d 865, 871 (5th Cir.
1997).1 United States v. Cabral-Castillo, 35 F.3d 182 (5th Cir.
1
Johnson’s counsel, responding to the district court’s
sentencing inquiry “I didn’t think there was any objection to the
calculation of the criminal history,” stated “No, Your Honor.”
We also note in passing that the district court’s statements
2
1994), is not in point because there resentencing of the appellant
in question was required anyway on the basis of his properly
preserved error and because on the other enhancement objection had
been made although not on the appropriate basis.
We further hold that the district court did not clearly err in
its imposition of the U.S.S.G. § 2D1.1(b)(1) enhancement. There is
no question that a firearm was present during the offense;
therefore, the district court should have applied the enhancement
unless it was clearly improbable that the weapon was connected with
the offense. See U.S.S.G. § 2D1.1, comment. (n.3). Possession
need only be established by a preponderance of the evidence.
United States v. Webster, 960 F.2d 1301, 1311 (5th Cir. 1992).
Given these standards, the district court’s finding was not clearly
erroneous. See id.
AFFIRMED.
at sentencing suggest that it might well have considered its 188
month sentence appropriate even if it were at the top of the
applicable guideline range.
3