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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-8526
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN DOYLE JOHNSON,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
( May 20, 1992 )
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
Appellant-defendant John Doyle Johnson (Johnson) pleaded
guilty to possessing a firearm on April 1, 1991, when he had
previously been convicted of a felony punishable by imprisonment
for more than one year, contrary to 18 U.S.C. 壯 922(g)(1) and
924(a)(2), and was sentenced on September 5, 1991, to thirty-three
months' imprisonment, to be followed by a three year term of
supervised release. Johnson appeals challenging only his sentence.
We affirm.
Johnson's sole complaint on appeal is that the district court
accepted the presentence report (PSR) calculation of his criminal

history points as twelve by including a total of three points for
three December 8, 1988 convictions and sentences in consecutively
numbered cases in the same court. The three offenses were driving
while intoxicated, driving while license suspended, and failure to
identify to a police officer, each was committed on the same day,
and Johnson was sentenced to concurrent terms of thirty days
imprisonment for each. All this was reflected in paragraph thirty-
two of the PSR. Johnson contends that a total of only one criminal
history point should have been awarded for these three offenses
because they all occurred on a single occasion.
Although timely furnished a copy of the PSR, Johnson at no
time filed any written objections to it, as noted in the PSR
addendum. The district court's local rules require that the
probation officer be furnished in writing and prior to sentencing
any objections to the PSR. Johnson has never offered any
explanation of why written objection on this ground was not made.
However, at sentencing, the district court asked Johnson personally
if he had reviewed the PSR and if he had anything he would like to
say about it. Johnson had reviewed the PSR, and he made numerous
comments about different parts of it, the final comment being:
"MR. JOHNSON:
. . . On this Page 8, 32, this
driving while intoxicated and driving without a license
and failure to submit ID, those three points added on
that, one on each one. Those was all run together, and
I received thirty days in jail. And that' all run
together at one time.
THE COURT:
That's what it says here. I mean it
doesn't say anything different than that, does it? I
mean you were sentenced to thirty days on each of them
but to run concurrently, I suppose.
2

MR. JOHNSON:
Yes Sir. I just did like ten days or
so on it.
THE COURT:
I don't think that would have any
effect on the scoring. I mean I think it's accurately
presented.
Anything else on the presentence report?
MR. JOHNSON:
No, sir."
This matter was not otherwise ever adverted to below by Johnson or
his attorney.
The United States Sentencing Guidelines (U.S.S.G.) as in
effect when Johnson was sentenced provided that, "[p]rior sentences
imposed in related cases are to be treated as one sentence for
purposes of the criminal history." U.S.S.G. � 4A1.2(a)(2) (Nov.
1990). The commentary to that provision instructs that, "[c]ases
are considered related if they (1) occurred on a single occasion,
(2) were part of a single common scheme or plan, or (3) were
consolidated for trial or sentencing." Id., comment. (n.3). It
seems evident that the three November 8, 1988 convictions were for
offenses which "occurred on a single occasion."
Although it may be questionable whether Johnson has adequately
preserved his contention, we assume, arguendo, that he did and,
further, that under � 4A1.2(a)(2) and its accompanying commentary
note 3 a total of only one criminal history point for all three
convictions, rather than three points, should have been awarded.
Nevertheless, we hold that any error in this respect does not
warrant a remand for resentencing because we conclude, from the
record as a whole, that "the district court would have imposed the
same sentence" even if it had awarded only one, rather than three,
criminal history points for the three December 8, 1988 sentences,
3

and that the fact that three points rather than one were awarded
"did not affect the district court's selection of the sentence
imposed." See Williams v. United States, 112 S.Ct. 1112, 1120-21
(1992).1 We reach this conclusion for the following reasons.
Most importantly, the awarding of three criminal history
points, rather than one, for the December 8, 1988 convictions had
no effect on Johnson's guideline sentencing range, which would have
been the twenty-seven to thirty-three months calculated by the PSR
and accepted by the district court even if only one criminal
history point had been awarded for these three convictions. This
is because reducing Johnson's criminal history points from the
twelve calculated by the PSR and accepted by the district court to
ten would not have affected Johnson's criminal history category,
which in either event would be criminal history category V, that
found by the PSR and utilized by the district court in sentencing.
See U.S.S.G. � 5A, Sentencing Table. The district court's written
"statement of reasons" for its sentence reflects that the district
court intended a sentence within the guideline range which it
correctly calculated as twenty-seven to thirty-three months based
on an offense level of twelve and a criminal history category of V.
Neither of these factors would have been changed by a change from
twelve to ten criminal history points. No reference is made in the
1
We recognize that there are statements in some of our pre-
Williams opinions indicating that incorrect application of the
sentencing guidelines will always require a remand and cannot be
regarded as harmless error. See United States v. Stephenson, 887
F.2d 57, 62 (5th Cir. 1989), cert. denied, 493 U.S. 1086 (1990).
We conclude that such an approach has been superseded by
Williams, and we henceforth follow the Williams analytical
framework in this respect.
4

statement of reasons to criminal history points.
It is evident that neither the PSR nor the district court were
under any factual misapprehension concerning either the December 8,
1988 convictions or the offenses involved therein. And, it is
undisputed that such offenses and convictions could properly be
considered for sentencing purposes. In such a situation, and
where, as here, the court sentences within the guideline range, the
precise number of criminal history points to be awarded for those
convictions will normally be relevant only if it changes the
guideline sentencing range, which it did not do in this instance.
Nor does anything at the sentencing hearing suggest that the
district court's selection of sentence was influenced by Johnson's
criminal history points totaling twelve instead of ten. No mention
was made of the total number of Johnson's criminal history points.
Nor, except in the above quoted colloquy, was any mention made of
the December 8, 1988 convictions. The focus of the sentencing
hearing was on Johnson's plea that he should be awarded a two point
reduction in offense level for acceptance of responsibility and
that he should be treated leniently because his violation of �
922(g)(1) was merely technical. All this turned out adversely to
Johnson, as it developed that he had denied his guilt to the
probation officer and told several conflicting stories of what had
happened. The district court was obviously not impressed with
Johnson's lack of candor at the sentencing hearing. He was also
concerned with the circumstances of the offense of conviction.2
2
As reflected in the PSR and at sentencing, Johnson on April
1, 1991, went to his ex-wife's home with a twelve-gauge pump
5

The only reference the district court made at sentencing to prior
convictions was to Johnson's prior felony convictions, of which
there were three, one being a burglary. These were obviously the
factors which led the district court to sentence at the maximum of
the guideline range.3 It is inconceivable that this decision was
influenced in the slightest by three criminal history points,
rather than one, being awarded for the three December 8, 1988
convictions.
Accordingly, Johnson's conviction and sentence are
AFFIRMED.
shotgun with an eighteen inch barrel; the shotgun was loaded with
three rounds of double 0 buckshot and Johnson also had a twelve
gauge rifle slug in his pocket; he was highly intoxicated at the
time; his ex-wife called the police; by the time they arrived
Johnson had concealed the shotgun and at first denied having one;
he furnished the officers false identification; he then attempted
to escape them. The PSR declined to award any offense level
enhancement for obstruction of justice in this respect because
Johnson's conduct after the officers had arrived "was dealt with
at the State level." Nor did the district court depart from the
PSR in this respect.
3
We also note that the prosecution at the sentencing hearing
recommended a sentence at the guideline range maximum. It never
made any reference to the December 8, 1988 convictions (or
offenses involved therein) or to the number of Johnson's criminal
history points. Its entire focus was on the circumstances of the
offense of conviction and Johnson's subsequent lack of candor
lasting through the sentencing hearing itself.
6