UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 
4

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 
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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