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.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-99-CR-10-6 -------------------- 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

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(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,

(5th Cir. 1993).

AFFIRMED.

2