* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-40278

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELIPE MAGALLANES,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. B-97-CR-326-2

- - - - - - - - - -

March 3, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Felipe Magallanes challenges his conviction and sentence 

for conspiracy to possess with intent to distribute 349 grams of

cocaine base (count 1); possession with intent to distribute 26

grams of cocaine base (count 3); possession with intent to

distribute 138 grams of cocaine base (count 4); possession with

intent to distribute 171 grams of cocaine base (count 5);

unlawfully possessing a Smith & Wesson .22 caliber semi automatic

pistol from which the serial number had been obliterated (count 
No. 98-40278

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6); being a felon in possession of a Smith and Wesson revolver,

.38 caliber (count 7); and being a felon in possession of a Smith

& Wesson .22 caliber semi automatic pistol (count 8). 

As conceded by the Government, Magallanes’ convictions on

counts 7 and 8 violate the Double Jeopardy Clause. See United

States v. Berry, 977 F.2d 915, 919-20 (5th Cir. 1992). The case

is remanded to the district court so that it may vacate one of

the convictions and resentence Magallanes. 

We find that Magallanes’ other arguments lack merit. The

district court’s questioning of witnesses did not amount to plain

error. See United States v. Cantu, ___ F.3d ____, 1999 WL 46977

*3-*4 (5th Cir. Feb. 3, 1999). Convictions on counts 6 and 8 do

not violate Double Jeopardy. See United States v. Mansolo, 129

F.3d 749, 750 (5th Cir. 1997); United States v. Nation, 832 F.2d

71, 74 (5th Cir. 1987). Magallanes argues that evidence was

insufficient to support conviction for possession of cocaine base

in count 5 on the ground that the evidence showed that he

possessed only powder cocaine. An indictment need only allege,

and a jury need only find, that the substance at issue was a form

of cocaine, whether or not it was the cocaine base form of

cocaine is purely a sentencing factor.” United States v. Deisch,

20 F.3d 139, 151 (5th Cir. 1994). Evidence was sufficient to

support a conviction beyond a reasonable doubt that Magallanes

knowingly possessed a firearm with an obliterated serial number. 

See United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir.

1992)(standard for sufficiency of the evidence); United States v.

Moore, 54 F.3d 92, 101 (2d Cir. 1995). The district court did
No. 98-40278

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not commit error, plain or otherwise, by assessing a point for a

previous assault conviction when sentencing Magallanes. U.S.S.G.

§§ 4A1.1(c), 4A1.2(c)(1). Counsel was not ineffective for

failing to object to the addition of this point at sentencing. 

See Smith v. Puckett, 907 F.2d 581, 585 n. 6 (5th Cir.

1990)(“[c]ounsel is not deficient for, and prejudice does not

issue from, failure to raise a legally meritless claim").

AFFIRMED IN PART; VACATED AND REMANDED IN PART.