USA v. Gary Johnson, Jr.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 18, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15204
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20431-KMM-12
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY JOHNSON, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 18, 2012)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Gary Johnson, Jr., appeals his 46-month sentence, imposed following his

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conviction for conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846.
After a thorough review of the record, we affirm the sentence imposed.
Johnson was charged along with numerous others with a drug conspiracy.
He pleaded guilty and admitted that he distributed at least 200 grams but less than
300 grams of cocaine over a period of about eight months.
The probation officer determined Johnson’s adjusted offense level to be 17
based on the amount of drugs involved and Johnson’s acceptance of responsibility.
Calculating Johnson’s criminal history, the probation officer assigned one point
under U.S.S.G. § 4A1.2(c) for a 2006 state-court conviction for possession of
marijuana. With a total of 12 criminal history points, Johnson’s criminal history
category was V, which yielded a sentencing range of 46 to 57 months’
imprisonment.
Johnson objected to the criminal history point for his marijuana possession,
arguing that the offense was similar to public intoxication, which would not
receive any criminal history points. The court overruled the objection, finding that
the offenses exempt from points under § 4A1.2(c) did not include drug possession.
After considering the arguments, the guideline range, and the sentencing factors,
the court sentenced Johnson to 46 months’ imprisonment. Johnson now appeals,
challenging the criminal history calculations.
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We review the district court’s interpretation and application of the
guidelines de novo. United States v. McQueen, 670 F.3d 1168, 1169 (11th Cir.
2012). Any error that does not affect substantial rights, however, may be
disregarded as harmless. Fed. R. Crim. P. 52(a).
The sentencing guidelines assign criminal history points for certain prior
convictions. U.S.S.G. § 4A1.2. Sentences for misdemeanors and petty offenses
are counted, with certain exceptions. Id. § 4A1.2(c). Public intoxication is one of
the crimes that is not counted, along with “offenses similar to them, by whatever
name they are known.” Id. § 4A1.2(c)(2).
Although this circuit has not yet considered, in a published opinion, whether
marijuana possession is similar to public intoxication for purposes of criminal
history calculations, we need not address it here. Under the sentencing1
guidelines, the calculation of ten, eleven, or twelve points falls in category V. The
court determined that Johnson had twelve points. Thus, even if we agreed that the
court erred in its calculations, Johnson’s eleven points would still yield a category
At least two circuits have concluded that drug possession and public intoxication are not1
similar for purposes of § 4A1.2(c). United States v. Russell, 564 F.3d 200, 206–07 (3d Cir.
2009) (concluding, under plain error review, that marijuana possession was not similar to public
intoxication); United States v. Roy, 126 F.3d 953, 954–55 (7th Cir. 1997) (concluding, under de
novo and plain error review, that marijuana possession was not similar to public intoxication).
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V and any error by the district court was harmless. See U.S.S.G. Sentencing2
Table. Accordingly, we affirm the sentence imposed.
AFFIRMED.
We note that Johnson raised other objections to the criminal history calculations which,2
if sustained, could have reduced his criminal history category to III. Although he preserved his
objections before the district court, he does not raise them on appeal, and in fact he concedes that
the court did not err. Thus, these objections do not impact our harmless-error analysis.
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