                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4785


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JARVIS J. JOHNSON, a/k/a Jarvis Jamaye Johnson,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    John Adrian Gibney, Jr.,
District Judge. (3:11-cr-00062-JAG-1)


Submitted:   January 30, 2012             Decided:   February 2, 2012


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Carolyn V. Grady, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant.     Neil H. MacBride, United
States Attorney, Stephen W. Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Jarvis   J.   Johnson   was     charged,   along   with    Robert

Turner, Jr., with possession of a Special Weapons 9mm rifle and

a Fabrinor .45 caliber firearm after having been convicted of a

felony, in violation of 18 U.S.C.           § 922(g) (2006).        He pled

guilty, without a plea agreement.          In the stipulated statement

of facts presented at his Fed. R. Crim. P. 11 hearing, Johnson

agreed that:

     1.   On or about December 13, 2010 . . . [he], having
     previously been convicted of a crime punishable by
     imprisonment for a term exceeding one year, did
     knowingly,   intentionally   and  unlawfully   possess
     firearms and ammunition, to wit: a Special Weapons
     rifle, Model SW760, 9mm caliber, serial number EO279;
     a Fabrinor, Model Mini Max, .45 caliber pistol, serial
     number   71-04-07807-00;   and   various   rounds   of
     ammunition, in and affecting interstate and foreign
     commerce, and did aid and abet ROBERT D. TURNER, JR.
     therein, in violation of Title 18, United States Code,
     Sections 922(g)(1) and 2.

                                  …


     5.   Police interviewed JOHNSON and TURNER and JOHNSON
     admitted to possessing the .45 caliber firearm.
     Likewise,   JOHNSON    admitted  that   he   purchased
     additional ammunition and a laser sight for the
     weapon. JOHNSON stated that he placed the .45 caliber
     firearm under the glove compartment when police
     stopped the vehicle.

When asked during the Rule 11 hearing whether “anything in these

facts that you think is wrong that should be added to or changed

or corrected or deleted,” Johnson replied, “No, ma’am.”



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              In the presentence report (PSR), Johnson was assigned

a     base   offense         level        of     22      because         “the    firearm         is     a

semiautomatic           firearm      that      is       capable     of     accepting         a    large

capacity      magazine.”             See       U.S.        Sentencing      Guidelines            Manual

(USSG), § 2K2.1(a)(3)(A)(i) and (B) (2010).                               After a three-level

reduction         for    acceptance         of      responsibility,             Johnson’s        total

offense level was 19.                With a criminal history category of VI,

the    recommended           advisory       Guidelines          range      was       63-78       months

imprisonment.           Johnson did not note any objections to the PSR or

at sentencing.           Rather, at the sentencing hearing, his attorney

requested a below-Guidelines sentence, based on her belief that

the    “guidelines           are    inflated          by    the     assault       rifle.”             The

district      court       disagreed         and,        after      discussing         the    factors

provided in 18 U.S.C. § 3553(a) (2006), imposed a sentence of 78

months.      Johnson noted a timely appeal.

              Johnson’s            sole     argument          on    appeal        is     that         the

attribution of the assault rifle to him was plainly erroneous

because      there      is    no    factual         support        for    it    in     the   record.

Because      he    failed      to    raise       the       issue    below,       this       claim      is

subject to review for plain error.                            United States v. Hargrove,

625 F.3d 170, 184 (4th Cir. 2010), cert. denied, 132 S. Ct. 292

(2011).      To establish plain error, Johnson must demonstrate that

(1) there was error; (2) the error was plain; and (3) the error

affected his substantial rights.                            United States v. Olano, 507

                                                    3
U.S.    725,    732     (1993).      In    the   sentencing       context,     an    error

affects substantial rights if the defendant can show that the

sentence       imposed    “was     longer     than      that   to    which     he    would

otherwise be subject.”             United States v. Washington, 404 F.3d

834, 849 (4th Cir. 2005).                 Even if Johnson makes this showing,

however, we will exercise our discretion to correct plain error

only if it “seriously affects the fairness, integrity or public

reputation of judicial proceedings.”                    United States v. Lynn, 592

F.3d    572,     577     (4th     Cir.     2010)     (internal      quotation        marks

omitted).       We find that the district court did not commit error—

plain or otherwise.

               First,    Johnson     admitted      to    the   statement       of    facts

which specifically attributed the assault rifle to him.                              These

statements,       made     under      oath,      are     presumed         to   be    true.

Blackledge v. Allison, 431 U.S. 63, 74 (1977).                            Moreover, his

failure to object to the PSR “has the same legal effect as an

admission to that fact.”             United States v. Terry, 916 F.2d 157,

162 (4th Cir. 1990).

               Second,    there    was     sufficient      evidence       to   support    a

finding         that       Johnson         possessed—either           actually           or

constructively—the assault rifle at issue.                     However, because the

issue    was     uncontested,       the     government      did     not    present    its

evidence.       In the government’s sentencing memorandum, it noted

that, in addition to the information contained in the stipulated

                                             4
statement of facts, that “the defendants shared the weapons and

police   observed   Johnson    holding    the   rifle    as   he   entered   the

vehicle.”    We find that this evidence, had it been presented,

would have been sufficient to establish that Johnson possessed

the automatic weapon and, therefore, would have supported the

§ 2K2.1(a)(3)(A)(i) enhancement had Johnson contested the issue.

            Accordingly,      we   affirm    Johnson’s        sentence.       We

dispense    with    oral   argument      because   the    facts     and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                      AFFIRMED




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