                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 11-15204         ELEVENTH CIRCUIT
                          Non-Argument Calendar        MAY 18, 2012
                        ________________________        JOHN LEY
                                                         CLERK
                  D.C. Docket No. 1:11-cr-20431-KMM-12



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

GARY JOHNSON, JR.,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                               (May 18, 2012)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

     Gary Johnson, Jr., appeals his 46-month sentence, imposed following his
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.

                                         2
       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.1 Under the sentencing

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




       1
         At least two circuits have concluded that drug possession and public intoxication are not
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).

                                                3
V and any error by the district court was harmless.2 See U.S.S.G. Sentencing

Table. Accordingly, we affirm the sentence imposed.

       AFFIRMED.




       2
         We note that Johnson raised other objections to the criminal history calculations which,
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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