United States v. Huerta

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 29, 2002
• Docket: 02-10287
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10287 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ADRIAN TORRES HUERTA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:01-CR-94-1-C -------------------- October 29, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Adrian Torres Huerta appeals his sentence following his

guilty-plea conviction for distributing methamphetamine within

1,000 feet of a public elementary school in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii) & 860(a). He argues that

the two-level enhancement under U.S.S.G. § 2D1.1(b)(1) was

improper because he never possessed the firearms recovered by

police officers during his drug arrest.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-10287 -2-

The Government argues that Huerta’s appeal should be

dismissed because it is precluded by the waiver-of-appeal

provision in the plea agreement. The Government, however, has

failed to provide the pertinent transcript to allow this court to

make a determination as to whether that waiver was knowing and

voluntary. Accordingly, the merits of Huerta’s appeal are

considered. See FED. R. APP. P. 10(b)(3)(B); United States

v. Dunham Concrete Prods., Inc., 475 F.2d 1241, 1251 (5th Cir.

1973).

The facts contained in the presentence report reveal that

officers recovered over 100 grams of methamphetamine, digital

scales, and three loaded firearms from the residence where Huerta

was living. At the sentencing hearing, one of the arresting

officers testified that methamphetamine and a firearm were

recovered from Huerta’s bedroom. See United States v. Henderson,

254 F.3d 543, 543-44 (5th Cir. 2001)(upholding firearm

enhancement where authorities recovered both firearms and drugs

in the same room of the defendant’s residence). Huerta offered

no evidence to rebut these facts. Accordingly, the district

court did not clearly err in adopting that factual finding. See

United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994).

The district court’s judgment is AFFIRMED.