United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 25, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-30072
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR WILLARD JOHNSON, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CR-374-ALL-S
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Oscar Willard Johnson, III, appeals his sentence, which was
assessed after he pleaded guilty to various drug-related offenses
in violation of 21 U.S.C. § 841(a). He argues that the district
court erroneously assigned him two criminal history points for a
June 1993 juvenile adjudication because there was no evidence
that he was released from confinement for that adjudication
within five years of his commencement of the instant offenses as
*
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that this opinion should not be published and is not precedent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.
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required by U.S.S.G. § 4A1.2(d)(2)(A); that the district court
erroneously enhanced his offense level under U.S.S.G.
§ 2D1.1(b)(1) for possessing firearms in connection with the
drug-related offenses; and that his trial counsel was ineffective
for failing to object to the U.S.S.G. § 2D1.1(b)(1) enhancement.
We conclude that the arguments raised by Johnson under
U.S.S.G. §§ 4A1.2(d)(2)(A) and 2D1.1(b)(1) were not sufficiently
preserved for review, and, thus, the district court’s application
of these sentencing guidelines are reviewed for plain error only.
See United States v. Olano, 507 U.S. 725, 731-32 (1993); see also
United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000); United
States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997); United
States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995). There is no
plain error relative to the district court’s alleged
miscalculation of Johnson’s criminal history score because the
district court could, on remand, impose the same sentence. See
United States v. Ravitch, 128 F.3d 865, 871 (5th Cir. 1997).
As it was not “clearly improbable” that the firearms found
in Johnson’s girlfriend’s house were connected to the charged
offenses, there was no error, plain or otherwise, in the district
court’s application of the enhancement under U.S.S.G. § 2D1.1(b).
See U.S.S.G. § 2D1.1, comment. (n.3); United States v. Vasquez,
161 F.3d 909, 912 (5th Cir. 1998)
As a general rule, Sixth Amendment claims of ineffective
assistance of counsel cannot be litigated on direct appeal unless
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they were adequately raised in the district court. United States
v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Even though Johnson
did not specifically raise this claim in the district court, the
record provides sufficient detail to allow this court to make a
determination of the merits of the claim. See United States v.
Saenz-Forero, 27 F.3d 1016, 1021 (5th Cir. 1994)(failure of
counsel to object to 16-level sentencing enhancement). As was
discussed above, the district court correctly applied the
enhancement under § 2D1.1(b); therefore Johnson cannot show that
trial counsel was ineffective for failing to raise it at
sentencing. See Strickland v. Washington, 466 U.S. 668, 687, 697
(1984).
AFFIRMED.