United States v. Davis ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40643
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR RAY DAVIS, also known as Arthur Ray,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-99-CR-10-6
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March 11, 2002
Before DUHÉ, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Arthur Ray Davis appeals his sentence for possession with
intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)
(1) and 841(b)(1)(C). Davis argues that the district court clearly
erred when it adopted the PSR’s calculations that included an
estimate of crack cocaine in his base offense level. He asserts
that the task force investigation that resulted in his arrest and
conviction did not reveal that he was a crack cocaine trafficker.
Davis’s sentencing challenge relies on transcripts of intercepted
conversations that were obtained during the task force
1
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this opinion should not be published and is not precedent except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.
investigation. As those transcripts are not part of the record on
appeal, we must reject that argument. See FED. R. APP. P. 10
(b)(2); see also United States v. Dunham Concrete Products, Inc.
475 F.2d 1241, 1251 (5th Cir. 1973).
Furthermore, additional evidence, e. g., the statements of a
codefendant and other task force observations, supports the
district court’s conclusion that it was appropriate to determine
Davis’s base offense level by using quantities of both crack
cocaine and powder cocaine. Finally, Davis’s argument that his
sentence should be based only on conduct specified in the
indictment count to which he plead guilty is erroneous and is
rejected. See U.S.S.G § 2D1.1 comment. (n. 12); see also United
States v. Young, 981 F.2d 180, 189 (5th Cir. 1993).
AFFIRMED.
2