     Case: 12-40099       Document: 00512067714         Page: 1     Date Filed: 11/29/2012




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

                                                                            FILED
                                                                        November 29, 2012
                                     No. 12-40099
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ELDRED JOHNSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-872-1


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Eldred Johnson appeals his 42 month sentence imposed following his
guilty plea conviction for possession with intent to distribute less than 50
kilograms of marijuana. See 21 U.S.C. § 841. He argues that the district court
erred in finding that a prior Texas conviction for assault was a crime of violence,
which qualified him for an enhancement as a career offender under U.S.S.G.
§ 4B1.1. However, Johnson also argues that the district court erred by failing
to rule on his objection to this enhancement.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-40099

      There is some conflicting evidence in the record regarding whether the
district court ruled on the objection. At sentencing, the district court stated that
it was not ruling on the objection because its selection of a sentence pursuant to
18 U.S.C. § 3553 made a decision unnecessary; however, the district court also
adopted the PSR, which included the career offender enhancement in its
calculations, and the Statement of Reasons indicates that the sentence was both
within the guidelines range and outside of the guidelines. Because Johnson did
not object in the district court to any failure to rule on his objection, we review
for plain error. To show plain error, the appellant must show a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If the appellant makes such a showing, this
court has the discretion to correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. To show that a
sentencing error affected his substantial rights, an appellant must demonstrate
a reasonable probability that he would have received a lesser sentence but for
the error. United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010). For the
reasons discussed below, Johnson has not shown a reasonable probability that
he would have received a lesser sentence but for the failure to rule on his
objection.
      Johnson’s primary argument on appeal is that his prior Texas conviction
for “assault-family violence” was not a crime of violence under § 4B1.2. Even if
the district court erroneously found that Johnson was a career offender, “[n]ot
all errors in determining a defendant’s guideline sentence require reversal.”
United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008). If a district court has
“considered the possible guideline ranges that might apply to the defendant with
and without a disputed [guidelines] enhancement,” and it “otherwise explains
its sentence in terms of 18 U.S.C. § 3553,” any error will be harmless because the
resulting sentence “does not result from an incorrect application of the



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                                 No. 12-40099

Guidelines.” United States v. Ruiz-Arriaga, 565 F.3d 280, 282 (5th Cir. 2009)
(internal quotation marks omitted).
      At sentencing, defense counsel informed the district court that the
guidelines range without the career offender enhancement would be only 18-24
months of imprisonment.      After imposing its sentence, the district court
explained that it had not chosen a guidelines sentence, either with or without
the enhancement; instead, it stated that it had considered both sets of possible
guidelines and then applied the § 3553(a) factors. It concluded that a lesser
sentence would not deter Johnson from future criminal conduct or protect the
public, that Johnson’s history and characteristics showed “a total disregard for
the law, and for his children, and for the mothers of those children,” and that
Johnson had not been deterred from additional criminal conduct despite past
sentences totaling 142 months of imprisonment.            Because the record
demonstrates that the district court considered both possible guidelines ranges
and provided an explanation for its choice of sentence under § 3553(a), any error
in determining the career offender issue was harmless. See Ruiz-Arriaga, 565
F.3d at 282.
      AFFIRMED.




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