                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 27, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                           No. 05-41663
                         Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MICHAEL HELTON,

                                      Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Eastern District of Texas
                       USDC No. 9:05-CR-8-1
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Michael Helton appeals the 108-month sentence he received

following his guilty-plea conviction for possession with the

intent to distribute five grams or more of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1).    Although the Government

contends that the appeal is barred by the waiver-of-appeal

provision in the plea agreement, we decline to enforce the waiver

as the rearraignment transcript has not been included in the

record on appeal, rendering it impossible to discern whether

Helton knowingly and voluntarily waived his right of appeal.          See

     *
       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this opinion should not be published and is not precedent except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.
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                                -2-

United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992); see

also United States v. Robinson, 187 F.3d 516, 518 (5th Cir.

1999); FED. R. CRIM. P. 11(b)(1)(N).

     Helton’s appellate brief is extremely difficult to decipher.

He initially invokes United States v. Booker, 543 U.S. 220

(2005), and seems to suggest that the district court erred in

relying on the findings in the PSR because they were based on a

preponderance of the evidence.   The argument is without merit

because, post-Booker, “[t]he sentencing judge is entitled to find

by a preponderance of the evidence all the facts relevant to the

determination of a Guideline sentencing range and all facts

relevant to the determination of a non-Guidelines sentence.”

United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.

denied, 126 S. Ct. 43 (2005).

     Helton next states that the district court judge selectively

rejected a portion of his plea agreement, but he does not

affirmatively assert that this was error or provide any relevant

argument with supporting authority, and he has thus waived the

argument.   See United States v. Thibodeaux, 211 F.3d 910, 912

(5th Cir. 2000); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993); see also Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir.

1986).

     Helton additionally complains that the plea agreement

provided that he qualified for a safety-valve reduction under

U.S.S.G. §§ 5C1.2 and 2D1.1(b)(7), but the Government failed to
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                                 -3-

abide by its agreement, citing Santobello v. New York, 404 U.S.

257 (1971).   To the extent that Helton is arguing that the

Government breached the plea agreement, his argument fails.

Although the Government agreed that Helton would receive the

benefit of safety-valve consideration, the district court did not

accept the plea bargain reached by Helton and the Government.

The court’s refusal to accept the parties’ agreement is not

tantamount to a breach by the Government.     See Santobello, 404

U.S. at 262 (once a plea agreement is made, there is “no absolute

right to have a guilty plea accepted” by the trial court).

     Helton’s true complaint is that the district court

misapplied the Guidelines by disqualifying him from safety-valve

consideration based on his firearms possession when the 18 U.S.C.

§ 924(c) charge in the indictment was dismissed by the

Government.   The district court’s application of the Sentencing

Guidelines is reviewed de novo and its factual findings are

reviewed for clear error.     United States v. Villegas, 404 F.3d

355, 359 (5th Cir. 2005).   As part of his plea, Helton

specifically admitted possessing 13 weapons in connection with

his drug possession.   The district court thus did not clearly err

in finding that Helton possessed firearms, and it properly

concluded that Helton’s firearms possession disqualified him from

safety-valve consideration.     See United States v. Matias, ___

F.3d ___, 2006 WL 2615435, *3 (5th Cir. Sept. 13, 2006);

U.S.S.G. §§ 5C1.2 and 2D1.1(b)(7).
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The district court’s judgment is AFFIRMED.
