IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10180
Summary Calendar
FELIPE AGUIRRE,
Plaintiff-Appellant,
versus
THE UNITED STATES OF AMERICA
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(4:93-CR-69-A)
July 26, 1996
Before HIGGINBOTHAM, WEINER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The appellant’s lengthy delay in filing a notice of appeal
causes some uncertainty regarding appellate jurisdiction and
standard of review. In order to decide this case with dispatch, we
treat appellant’s appeal from the denial of his application under
28 U.S.C. § 2255 as though he were before this court as of right
and review the district court’s decision de novo. We find no
error. United States v. Bailey, 116 S. Ct. 501 (1995), involved
the proper definition of the term “use” when applied to a
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
defendant’s use of a firearm. U.S.S.G. § 2D1.1(b)(1), upon which
the district court relied to impose a 2-level increase to
defendant’s sentence, turns on whether a dangerous weapon was
“possessed.” Comment 3 to this section provides that “[t]he
adjustment should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the
offense.” In this case, law enforcement officials found the
firearm at issue at appellant’s residence together with over
$10,000 in cash. Some of the drug transactions forming the basis
for the indictment took place at appellant’s residence. Under such
circumstances, we find it decidedly less than “clearly improbable”
that appellant possessed the firearm in connection with his drug
offense. The district court committed no error in applying section
2D1.1(b)(1).
As appellant has briefed no other issue to this court, we
AFFIRM the judgment of the court below. We DENY the motion for the
appointment of counsel.
2