IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30937

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CORDELL JOHNSON, also known as Cut,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

Before JOLLY, COSTA, and HO, Circuit Judges.

PER CURIAM:*

Cordell Johnson pleaded guilty of conspiracy to distribute and possess 

with intent to distribute cocaine, and he was sentenced within the guidelines 

range to a statutory-minimum 120-month term of imprisonment and to a fiveyear period of supervised release. Johnson contends that the district court 

erred in assigning a single criminal history point under U.S.S.G. § 4A1.1(c) to 

each of two prior criminal matters: (1) a 2000 conviction of carrying a concealed 

weapon; and (2) a 1999 simple battery with no medical treatment. 

United States Court of Appeals

Fifth Circuit

FILED

October 19, 2018

Lyle W. Cayce

Clerk

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No. 17-30937

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As Johnson concedes, our review is for plain error. Johnson must 

establish a plain and obvious error that affects his substantial rights. See 

Puckett v. United States, 556 U.S. 129, 135 (2009). If he 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. Sentencing 

errors affect substantial rights if there is “a reasonable probability that, but 

for the district court’s error, the appellant would have received a lower 

sentence.” United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). 

Although he was sentenced to the statutory minimum sentence, Johnson 

asserts that the errors affected his substantial rights because the additional 

criminal history points disqualified him from eligibility for a safety valve 

adjustment. Johnson was assessed a single criminal history point for another 

prior sentence, which he has not challenged; thus, a failure to persuade this 

court that the district court plainly erred in assigning a criminal history point 

to either prior offense at issue herein would leave Johnson with two criminal 

history points and, therefore, ineligible for the safety valve adjustment. See 18 

U.S.C. § 3553(f).

Johnson contends that the carrying a concealed weapon offense should 

not have been counted because it was similar to the listed offense of driving 

without a license. See U.S.S.G. § 4A1.2(c)(1). His argument is that the offenses 

are similar in that he was punished for carrying a concealed weapon because 

he did not have a concealed carry permit. Johnson asserts that, for the same 

reason, the offense should not have been counted because it was similar to a 

fish and game violation, which is among the listed offenses that are never 

counted. See § 4A1.2(c)(2).

We apply a common-sense approach in determining whether a sentence 

is for an offense that is similar to an offense listed in § 4A1.2(c). See § 4A1.2, 

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comment. (n.12(A)); United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 

1991); see also United States v. Hernandez, 634 F.3d 317, 319 (5th Cir. 2011). 

Under the common-sense approach, this court “determine[s] whether the past 

conduct is ‘relevant to the goals of sentencing’—that is, whether the offense 

was sufficiently serious or indicative of future criminality that the defendant 

should be subject to heightened punishment.” Hernandez, 634 F.3d at 319 

(quoting Hardeman, 933 F.2d at 281). Because the default rule is one of 

inclusion, doubts are resolved in favor of counting the offense. Hernandez, 634 

F.3d at 319. Offenses are regarded as dissimilar if they involve a more culpable 

state of mind or an increased risk of harm to others. Id. at 320. 

A person commits an offense of illegal carrying a weapon by intentionally 

concealing a firearm on his person, not by failing to have a concealed carry 

permit. LA. REV. STAT. ANN. § 14:95(A)(1); State v. Dyer, 388 So. 2d 374, 376 

(La. 1980). The offense of driving without a license does not require a showing 

of specific intent. See LA. REV. STAT. ANN. § 32:52; State v. Sherman, 931 So. 

2d 286, 291 (La. 2006); State v. Pickering, 432 So. 2d 1067, 1071 (La Ct. App. 

1983). The elements of the two offenses are not similar. Although Johnson 

contends that he was improperly convicted of the carrying a concealed weapon 

offense because the weapon was found in his vehicle and not on his person and 

that the conviction was uncounseled, we will not consider issues raised for the 

first time in a reply brief. See United States v. Green, 46 F.3d 461, 465 n.3 (5th 

Cir. 1995); see also United States v. Longstreet, 603 F.3d 273, 276-77 (5th Cir. 

2010). 

The two offenses are also dissimilar because the carrying a concealed 

weapons offense involves a more culpable state of mind and an increased risk 

of harm to others. See Hernandez, 634 F.3d at 320; see also State in Interest of 

J.M., 144 So. 3d 853, 856, 864-65 (La. 2014); United States v. Williams, 588 F. 

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App’x 348, 349 (5th Cir. 2014). Johnson’s contention that the offense is similar 

to a fish and game violation suffers from the same infirmities. The district 

court did not commit a plain or obvious error in assigning a criminal history 

point to the prior sentence for carrying a concealed weapon. See Puckett, 556 

U.S. at 135; see also Hernandez, 634 F.3d at 319-20. 

Because Johnson has not shown that his substantial rights were 

affected, we have not considered whether the district court plainly erred in 

assigning a criminal history point to the 1999 simple battery offense. See 

Puckett, 556 U.S. at 135; see also Davis, 602 F.3d at 647. The judgment is 

AFFIRMED. 

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