                                                                                         United States Court of Appeals
                                                                                                  Fifth Circuit
                                                                                               F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                              November 17, 2004
                                   FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                            No. 04-10033
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                          Plaintiff-Appellee,

                                                 versus

KEVIN DARONE WILLIAMS,

                                                                                     Defendant-Appellant.

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                           Appeal from the United States District Court
                                  for the Northern District of Texas
                                   USDC No. 5:03-CR-76-ALL-C
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Before WIENER, BENAVIDES AND STEWART, Circuit Judges.

PER CURIAM:*

       Kevin Darone Williams appeals his sentence for possession of a firearm by a convicted felon.

18 U.S.C. § 922(g)(1). Williams challenges the district court’s increase in his base offense level by

four levels pursuant to U.S.S.G. § 2K2.1(b)(5), arguing that no evidence existed that he used or

possessed a firearm in connection with another felony offense.




       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       We address the merits of Williams’s sentencing claim, despite the waiver-of-appeal provision

in Williams’s plea agreement, in the light of the Government’s explicit assertion that it chooses not

to rely on the appeal waiver. United States v. Rhodes, 253 F.3d 800, 804 (5th Cir. 2001).

       The district court did not clearly err in determining that Williams used or possessed a firearm

in connection with a counterfeiting offense. See United States v. Armstead, 114 F.3d 504, 512 (5th

Cir. 1997); United States v. Condren, 18 F.3d 1190, 1193, 1199-1200 (5th Cir. 1994). Accordingly,

the district court did not err in applying U.S.S.G. § 2K2.1(b)(5).

       Williams seeks leave to file a supplemental brief in which he contends that the adjustment

under U.S.S.G. § 2K2.1(b)(5) violated Blakely v. Washington, 124 S. Ct. 2531 (2004), because it

was based on facts not charged in his indictment, not found by a jury beyond a reasonable doubt, and

not admitted by him at his plea hearing. Williams has submitted his supplemental brief, and his motion

to file it is GRANTED. As Williams concedes, his Blakely argument is foreclosed by United States

v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004) (holding that Blakely does not apply to the federal

sentencing guidelines), petition for cert. filed (U.S. July 14, 2004).

       The judgment of the district court is AFFIRMED.




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