United States v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10818
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GLYN EARL JOHNSON, also known as G,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:95-CR-98-G(2))
_________________________________________________________________
April 10, 1996
Before KING, HIGGINBOTHAM, and STEWART, Circuit Judges.
PER CURIAM:*
Glyn Earl Johnson appeals from his sentence following his guilty-plea convictions for
conspiracy to possess with intent to distribute cocaine and money laundering. He argues that the
district court erred by failing to make a specific finding in compliance with Fed. R. Crim. P. 32
with regard to whether he was in possession of a firearm pursuant to U.S.S.G. § 2D1.1. We have
reviewed the record and find no reversible error. The district court complied with the dictates of
Rule 32 by making a determination that no finding was necessary because the issue of Johnson's
knowledge that the guns were in his vehicle would not affect sentencing. See United States v.
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule
47.5.4.
Piazza, 959 F.2d 33, 37 (5th Cir. 1992). The district court did not err by finding that the issue of
Johnson's knowledge of the weapons had no impact upon the calculation of his sentence because
the court was permitted to infer that the weapons were reasonably foreseeable to Johnson. See
United States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990). The district court was
not required by Rule 32 to make a specific finding with regard to whether the possession of the
weapons was reasonably foreseeable to Johnson because Johnson did not argue that the weapons
were not reasonably foreseeable to him. See United States v. Esqueda-Moreno, 56 F.3d 578, 580
n.2 (5th Cir.), cert. denied, 116 S. Ct. 348 (1995).
Johnson's reliance upon this court's opinion in United States v. Pofahl, 990 F.2d 1456 (5th
Cir.), cert. denied, 114 S. Ct. 266 (1993), is misplaced. In Pofahl, the PSR alleged that the firearm
belonged to the defendant and that the defendant possessed it at the time of his offense. Id. at
1486. The defendant alleged, however, that an enhancement pursuant to § 2D1.1 was improper
because the firearm actually belonged to his roommate. Id. Thus, unlike the present case, the
issue of the defendant's possession of the weapon in Pofahl was directly in dispute and, thus, a
controverted matter. See id.
Accordingly, the judgment of the district court is AFFIRMED.
2