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that this opinion should not be published and is not precedent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