United States v. Helton , 203 F. App'x 682 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-41663
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL HELTON,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 9:05-CR-8-1
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Michael Helton appeals the 108-month sentence he received
following his guilty-plea conviction for possession with the
intent to distribute five grams or more of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1). Although the Government
contends that the appeal is barred by the waiver-of-appeal
provision in the plea agreement, we decline to enforce the waiver
as the rearraignment transcript has not been included in the
record on appeal, rendering it impossible to discern whether
Helton knowingly and voluntarily waived his right of appeal. See
*
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this opinion should not be published and is not precedent except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. 05-41663
-2-
United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992); see
also United States v. Robinson, 187 F.3d 516, 518 (5th Cir.
1999); FED. R. CRIM. P. 11(b)(1)(N).
Helton’s appellate brief is extremely difficult to decipher.
He initially invokes United States v. Booker, 543 U.S. 220(2005), and seems to suggest that the district court erred in
relying on the findings in the PSR because they were based on a
preponderance of the evidence. The argument is without merit
because, post-Booker, “[t]he sentencing judge is entitled to find
by a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range and all facts
relevant to the determination of a non-Guidelines sentence.”
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005).
Helton next states that the district court judge selectively
rejected a portion of his plea agreement, but he does not
affirmatively assert that this was error or provide any relevant
argument with supporting authority, and he has thus waived the
argument. See United States v. Thibodeaux, 211 F.3d 910, 912
(5th Cir. 2000); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993); see also Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir.
1986).
Helton additionally complains that the plea agreement
provided that he qualified for a safety-valve reduction under
U.S.S.G. §§ 5C1.2 and 2D1.1(b)(7), but the Government failed to
No. 05-41663
-3-
abide by its agreement, citing Santobello v. New York, 404 U.S.
257 (1971). To the extent that Helton is arguing that the
Government breached the plea agreement, his argument fails.
Although the Government agreed that Helton would receive the
benefit of safety-valve consideration, the district court did not
accept the plea bargain reached by Helton and the Government.
The court’s refusal to accept the parties’ agreement is not
tantamount to a breach by the Government. See Santobello, 404
U.S. at 262 (once a plea agreement is made, there is “no absolute
right to have a guilty plea accepted” by the trial court).
Helton’s true complaint is that the district court
misapplied the Guidelines by disqualifying him from safety-valve
consideration based on his firearms possession when the 18 U.S.C.
§ 924(c) charge in the indictment was dismissed by the
Government. The district court’s application of the Sentencing
Guidelines is reviewed de novo and its factual findings are
reviewed for clear error. United States v. Villegas, 404 F.3d
355, 359 (5th Cir. 2005). As part of his plea, Helton
specifically admitted possessing 13 weapons in connection with
his drug possession. The district court thus did not clearly err
in finding that Helton possessed firearms, and it properly
concluded that Helton’s firearms possession disqualified him from
safety-valve consideration. See United States v. Matias, ___
F.3d ___, 2006 WL 2615435, *3 (5th Cir. Sept. 13, 2006);
U.S.S.G. §§ 5C1.2 and 2D1.1(b)(7).
No. 05-41663
-4-
The district court’s judgment is AFFIRMED.