IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10554 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR MANUEL CHAVEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:00-CR-55-2 -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Victor Manuel Chavez (“Chavez”) appeals his conviction for

possession with the intent to distribute cocaine and aiding and

abetting in violation

(a)(1) & (b)(1)(B) and

. Chavez argues that the district court erred in

assessing a two-point sentencing enhancement pursuant to United

States Sentencing Guideline § 2D1.1(b)(1). Chavez primarily

argues that the two-point enhancement violates double jeopardy,

and he contends that his due process rights were violated because

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10554 -2-

he was not found guilty of possessing a firearm. Chavez contends

that although he possessed a firearm on September 12, 2000, he

pleaded guilty to the transaction which occurred on July 25,

2000, and there is no evidence that he possessed a firearm on

that day.

Section 2D1.1(b)(1) indicates that a defendant’s sentence

should be increased by two levels whenever, in a crime involving

the manufacture, import, export, trafficking, or possession of

drugs, the defendant possessed a dangerous weapon. “The

adjustment should be applied if the weapon was present, unless it

is clearly improbable that the weapon was connected with the

offense.” U.S.S.G. § 2D1.1, comment. (n.3). The decision to

apply the two-level enhancement under U.S.S.G. § 2D1.1(b)(1) is a

factual determination, reviewed for clear error. United States

v. Dixon,

(5th Cir. 1997).

A sentencing court need not limit its attention to the

offense of conviction but may also increase a defendant’s

sentence pursuant to § 2D1.1(b)(1) if it concludes that a firearm

was possessed in connection with unadjudicated offenses that

constitute relevant conduct, as defined by U.S.S.G. § 1B1.3. See

United States v. Vital,

(5th Cir. 1995); see

also United States v. Paulk,

(5th Cir.

1990). Therefore, the district court did not err in assessing

Chavez a two-point sentencing enhancement for possession of a

firearm. See United States v. Edwards,

(5th No. 01-10554 -3-

Cir. 1990); see also Witte v. United States,

(1995).

Chavez’ sentence and conviction are AFFIRMED.