from the United States District Court for the Western
District of Louisiana
JOLLY, COSTA, and HO, Circuit Judges.
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 five-year 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
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).
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).
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).
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,
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.
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).
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 Fed.Appx. 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.
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.