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that this opinion should not be published and is not precedent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

United States Court of Appeals

Fifth Circuit

FILED

July 25, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-30072

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR WILLARD JOHNSON, III,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 99-CR-374-ALL-S

--------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Oscar Willard Johnson, III, appeals his sentence, which was

assessed after he pleaded guilty to various drug-related offenses

in violation of 21 U.S.C. § 841(a). He argues that the district

court erroneously assigned him two criminal history points for a

June 1993 juvenile adjudication because there was no evidence

that he was released from confinement for that adjudication

within five years of his commencement of the instant offenses as
No. 03-30072

-2-

required by U.S.S.G. § 4A1.2(d)(2)(A); that the district court

erroneously enhanced his offense level under U.S.S.G.

§ 2D1.1(b)(1) for possessing firearms in connection with the

drug-related offenses; and that his trial counsel was ineffective

for failing to object to the U.S.S.G. § 2D1.1(b)(1) enhancement. 

We conclude that the arguments raised by Johnson under

U.S.S.G. §§ 4A1.2(d)(2)(A) and 2D1.1(b)(1) were not sufficiently

preserved for review, and, thus, the district court’s application

of these sentencing guidelines are reviewed for plain error only. 

See United States v. Olano, 507 U.S. 725, 731-32 (1993); see also

United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000); United

States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997); United

States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995). There is no

plain error relative to the district court’s alleged

miscalculation of Johnson’s criminal history score because the

district court could, on remand, impose the same sentence. See

United States v. Ravitch, 128 F.3d 865, 871 (5th Cir. 1997). 

As it was not “clearly improbable” that the firearms found

in Johnson’s girlfriend’s house were connected to the charged

offenses, there was no error, plain or otherwise, in the district

court’s application of the enhancement under U.S.S.G. § 2D1.1(b).

See U.S.S.G. § 2D1.1, comment. (n.3); United States v. Vasquez,

161 F.3d 909, 912 (5th Cir. 1998)

As a general rule, Sixth Amendment claims of ineffective

assistance of counsel cannot be litigated on direct appeal unless
No. 03-30072

-3-

they were adequately raised in the district court. United States

v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Even though Johnson

did not specifically raise this claim in the district court, the

record provides sufficient detail to allow this court to make a

determination of the merits of the claim. See United States v.

Saenz-Forero, 27 F.3d 1016, 1021 (5th Cir. 1994)(failure of

counsel to object to 16-level sentencing enhancement). As was

discussed above, the district court correctly applied the

enhancement under § 2D1.1(b); therefore Johnson cannot show that

trial counsel was ineffective for failing to raise it at

sentencing. See Strickland v. Washington, 466 U.S. 668, 687, 697

(1984). 

AFFIRMED.