IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60300
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC QUINN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:00-CR-53-ALL-LS
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December 28, 2001
Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Eric Quinn appeals his sentencing following his guilty-plea
conviction of distributing cocaine base in violation of 21 U.S.C.
§ 841(a)(1). He argues that the two-level enhancement under
U.S.S.G. § 2D1.1(b)(1) was improper because the firearm seen by
officers during the drug transaction played no role in the
offense of conviction. The Government argues that Quinn’s appeal
should be dismissed because it is precluded by the waiver-of-
appeal provision in the plea agreement. The Government has
failed to provide the pertinent transcript to allow this court to
*
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that this opinion should not be published and is not precedent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. 01-60300
-2-
make a determination as to whether that waiver was knowing and
voluntary, and the merits of Quinn’s appeal are accordingly
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 observed a .45-caliber semi-automatic handgun in the
armrest from which Quinn retrieved the drugs involved in the
offense. Quinn offered no evidence to rebut these facts, and 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). Nor does the fact that count 2 of the
indictment -- knowingly carrying a handgun during and in relation
to a drug trafficking offense -- was dismissed foreclose the
application of the two-level enhancement. See United States v.
Buchanan, 70 F.3d 818, 827-28 (5th Cir. 1995); United States v.
Juarez-Ortega, 866 F.2d 747, 749 (5th Cir. 1989).
The Government’s motion to dismiss the appeal is DENIED.
The district court’s judgment is AFFIRMED.