United States v. Smith , 235 F. App'x 233 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 24, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-31003
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KEITH SMITH, also known as Keith Cornell Smith
Defendant-Appellant
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CR-235
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Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Keith Smith appeals the sentence imposed on remand following his guilty-
plea conviction for conspiracy to possess with intent to distribute cocaine base.
He argues that the district court used information protected by an immunity
agreement to calculate his sentencing range under the Sentencing Guidelines in
violation of U.S.S.G. § 1B1.8.
*
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should not be published and is not precedent except under the limited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. 06-31003
The Government argues that Smith’s appeal is barred by an appeal waiver
included in Smith’s written plea agreement. In the absence of the transcripts
necessary for a review of the voluntariness of Smith’s waiver, this court will not
consider this issue. See Powell v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992) (party
raising an issue has duty to provide the record relating to that issue); United
States v. Dunham Concrete Prods., Inc., 475 F.2d 1241, 1251 (5th Cir. 1973)
(same).
In view of the evidence presented at the evidentiary hearing on remand,
Smith has not shown that the district court clearly erred in finding that the
Government established that the evidence used to calculate Smith’s offense level
was obtained from legitimate, independent sources -- Smith’s own admissions
prior to the agreement, wiretap evidence, and an interview with an individual
who purchased crack cocaine from Smith. See United States v. Gibson, 48 F.3d
876, 879 (5th Cir. 1995).
AFFIRMED.
2