     Case: 10-10237 Document: 00511447432 Page: 1 Date Filed: 04/15/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 15, 2011
                                     No. 10-10237
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

LISHON MARCELLE HUDSON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-137-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Lishon Marcelle Hudson pleaded guilty of possession of a controlled
substance with intent to distribute and was sentenced to a 135-month term of
imprisonment and to a four-year period of supervised release. Hudson contends
that the district court committed procedural errors in determining his
Sentencing Guidelines offense level and criminal history category.
       Our review of the district court’s interpretation and application of the
Guidelines in this case is for plain error. Puckett v. United States, 129 S. Ct.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-10237 Document: 00511447432 Page: 2 Date Filed: 04/15/2011

                                  No. 10-10237

1423, 1428 (2009). To show plain error, Hudson must show a forfeited error that
is clear or obvious and that affects his substantial rights. Id. at 1429; see also
United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). If Hudson carries his
burden of showing a clear and obvious error that affects his substantial rights,
we have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Puckett, 129
S. Ct. at 1429.
      The Government concedes and we agree that the district court committed
a clear and obvious error in increasing Hudson’s criminal history score pursuant
to guidelines section 4A1.1(b).     See U.S.S.G. § 4A1.1(b) (2009); U.S.S.G.
§ 4A1.2(a)(1) & comment. (n.1) (2009); see also United States v. Yerena-Magana,
478 F.3d 683, 688-89 (5th Cir. 2007); United States v. Southerland, 405 F.3d 263,
266-68 (5th Cir. 2005). Hudson has not shown, however, that his substantial
rights were affected by the error. See United States v. Blocker, 612 F.3d 413,
416-17 (5th Cir.), cert. denied, 131 S. Ct. 623 (2010).
      Hudson contends that the district court violated his Second Amendment
right to bear arms in his own home by increasing his offense level pursuant to
guidelines section 2D1.1(b)(1). Hudson has not shown that the district court
committed a clear or obvious error. See District of Columbia v. Heller, 554 U.S.
570, 626-27 (2008); see also United States v. Salinas, 480 F.3d 750, 759 (5th Cir.
2007) (error must be clear under existing law). The judgment is
      AFFIRMED.




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