                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2928
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Nebraska.
Jose Delapaz,                         *
                                      *      [UNPUBLISHED]
            Defendant-Appellant.      *
                                 ___________

                             Submitted: February 16, 2006
                                Filed: February 22, 2006
                                 ___________

Before LOKEN, Chief Judge, LAY and SMITH, Circuit Judges.
                              ___________

PER CURIAM.

       Jose Delapaz appeals the district court’s1 assessment of a two-level sentencing
enhancement for possession of a dangerous weapon in connection with drug
trafficking. He argues the court clearly erred in finding the evidence sufficient to
justify the enhancement. We affirm.




      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
I. Background

       In March 2005, Jose Delapaz pleaded guilty to conspiracy to distribute and
possess with intent to distribute 500 grams or more of a mixture or substance
containing a detectable amount of methamphetamine and 100 kilograms or more of
a mixture or substance containing a detectable amount of marijuana in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1), 846 and 18 U.S.C. § 2. The plea agreement reserved
the rights of the parties to present evidence at the time of sentencing regarding
whether a two-level enhancement should be applied for possession of a firearm in
connection with the conspiracy charge pursuant to United States Sentencing
Guidelines (U.S.S.G.) § 2D1.1(b)(1).

        In June 2005, an evidentiary hearing was held at which the government
presented testimony from two witnesses. The government’s first witness, Piper Niedt,
testified pursuant to a non-prosecution agreement. She stated that she knew Delapaz
through her boyfriend, Andrew Requejo, who had obtained methamphetamine from
Delapaz and Jose Delira, one of Delapaz’s codefendants in this case. Niedt testified
that on occasion she went with Requejo when he bought methamphetamine from
Delapaz and Delira. Although Niedt stated she never saw any actual drug
transactions, Requejo would sometimes be in possession of methamphetamine after
meeting with Delapaz and Delira. Niedt testified that, in April 2004, she went with
Requejo to an apartment building parking lot because he wanted to buy
methamphetamine. She stated she waited in the car while Requejo talked with
Delapaz and Delira in the parking lot. At some point, Delira got into the car in which
Niedt was sitting. She testified he was holding a handgun she thought looked like a
.357. According to Niedt, Delira placed the gun on the floorboard of the backseat for
a short time before getting out of the car with the gun and joining Delapaz and
Requejo, who were still talking in the parking lot. When Requejo returned to the car,
he told Niedt that he was not able to buy methamphetamine because he had no money.
Niedt also testified that Requejo had once owned a gun similar to the gun Delira had

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brought into the car. She stated she believed, based on overhearing a telephone
conversation between Requejo and Delapaz, that Requejo had given this gun to
Delapaz and Delira to pay a debt. Niedt stated she never saw Delapaz with a gun.

       The second witness, Andrew Requejo, testified pursuant to a state plea
agreement. He stated he obtained methamphetamine from Delapaz from December
2003 to March or April 2004, and that he first saw Delapaz with a gun in March or
April 2004 when they met in the parking lot outside Delapaz’s apartment building.
Requejo stated that Niedt accompanied him to this meeting. Requejo testified that this
meeting took place in a car parked next to the car in which Niedt was sitting and,
while they were discussing the possibility of a drug transaction, Delapaz showed him
a .357 handgun. Requejo stated he did not buy methamphetamine from Delapaz
because none was available. According to Requejo, Delira never got into the car with
Niedt. The second time Requejo saw Delapaz with a gun occurred sometime after the
meeting in the parking lot. He went to pick up methamphetamine from Delapaz’s
apartment and saw Delapaz retrieve a .357 handgun from under a mattress–the same
place from which he had retrieved methamphetamine. Requejo asked why Delapaz
had the gun, and Delapaz replied that he had it because he owed money to “Pancho,”
a local drug dealer, and needed the gun for protection. The third time Requejo saw
Delapaz with a gun was at Pancho’s house, where he and Delapaz happened to be
buying drugs at the same time. Requejo stated he heard Delapaz and Pancho
discussing Delapaz’s debt to Pancho, and that he (Requejo) then observed Delapaz
give Pancho the gun. Pancho said he would take $400 off Delapaz’s debt. Requejo
believed Delapaz owed Pancho money for drugs. Requejo also testified that he had
not seen Delapaz with a gun on any other occasion. During cross-examination,
Requejo acknowledged that he may have told law enforcement officials that he had
seen Delapaz with a gun on only one occasion.

     The district court found the greater weight of the evidence demonstrated
Delapaz possessed a gun in connection with a drug trafficking crime, noting that

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evidence had been presented corroborating three such occasions: first, during the
attempted drug deal in the parking lot to which both Niedt and Requejo testified;
second, when Delapaz displayed the gun to Requejo and said he used it for protection
against another drug dealer; and third, when Delapaz used a gun as barter to settle a
drug-related debt. The court acknowledged that Requejo’s testimony conflicted with
Niedt’s regarding whether Delira got into the car in which Niedt was sitting during the
attempted drug deal in the parking lot. However, the court stated, “[the discrepancy],
in my opinion, is not sufficient to cause me to disbelieve the testimony of either
witness. It seems to me that—that one could—both of those things could have
happened and—and one could well have misremembered what happened without them
being untrue.”

II. Analysis

       We review a district court’s factual findings regarding the application of a
sentencing enhancement for possession of a dangerous weapon during a drug offense
for clear error. United States v. Lopez, 416 F.3d 713, 715 (8th Cir. 2005). A finding
is clearly erroneous when, “although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” United States v. Cabbell, 35 F.3d 1255, 1260 (8th Cir. 1994).

      A sentencing court should apply the enhancement “if the weapon was present,
unless it is clearly improbable that the weapon was connected with the offense.”
U.S.S.G. § 2D1.1(b)(1) cmt. n.3. We recently summarized the government’s burden
of proof under § 2D1.1(b)(1):

      The government bears the burden of proving by a preponderance of the
      evidence that the firearm was present and was probably connected to the
      drug charge. To carry its burden, the government need only prove a
      temporal and spatial nexus among the weapon, defendant, and drug-


                                          -4-
      trafficking activity. The government need not prove the defendant had
      actual possession of the weapon; constructive possession will do.

United States v. Torres, 409 F.3d 1000, 1003 (8th Cir. 2005) (citation omitted).

       In support of his argument that the district court clearly erred, Delapaz points
out that Niedt’s and Requejo’s testimony was offered pursuant to agreements with the
government. He argues the government did not meet its burden of proof because the
witnesses’ testimony was inconsistent and incomplete, noting that the testimony of
Niedt and Requejo conflicted regarding whether Delira got into the car with Niedt.
Next, he argues Requejo’s testimony was “clearly questionable” because “[t]he
incidences to which he testified were never revealed to law enforcement despite the
admonition that he be truthful and complete during his proffers with the government.”
Delapaz further observes that Requejo’s allegations that Delapaz pulled a gun from
a mattress and used a gun to pay down a drug debt were not corroborated by any other
witnesses.

      After carefully reviewing the record, we conclude the district court’s finding
that Delapaz possessed a gun in connection with drug trafficking is not clearly
erroneous. There is no question that the three incidents detailing Delapaz’s gun
possession related by Requejo satisfy U.S.S.G. § 2D1.1(b)(1). Each time, Delapaz’s
gun possession was spatially and temporally connected to drug trafficking activity.
See Torres, 409 F.3d at 1003. During the incident in the parking lot, Requejo and
Niedt both testified Requejo met with Delapaz for the express purpose of buying
drugs. When Requejo went to buy methamphetamine from Delapaz at his apartment,
Delapaz pulled a .357 from the same place he had retrieved methamphetamine—
under a mattress—then told Requejo he had the gun for protection because he owed
money to “Pancho,” another drug dealer. Finally, Requejo saw Delapaz give the gun
to “Pancho” in exchange for $400 of drug debt. Each of these incidents establish that
Delapaz possessed a gun in connection with drug trafficking activities.


                                         -5-
       Regarding the inconsistencies between the testimony of Niedt and Requejo
regarding what transpired during the April 2004 parking lot incident, we decline to
disturb the district court’s conclusion that the inconsistencies did not undermine the
believability of the witnesses’ testimony. “We are particularly hesitant to find clear
error in the district court’s findings of fact where those findings are based on
determinations of witness credibility.” United States v. Causor-Serrato, 234 F.3d 384,
390 (8th Cir. 2000). The district court is best able to assess the value of testimony,
and the court’s determination regarding whether Requejo and Niedt were credible was
within its fact-finding purview. See id. “The law is well-settled that a district court’s
assessment of witness credibility is quintessentially a judgment call and virtually
unassailable on appeal.” Id.; see also United States v. Hyatt, 207 F.3d 1036, 1038 (8th
Cir. 2000); United States v. Behler, 187 F.3d 772, 777 (8th Cir. 1999).

III. Conclusion

      For the foregoing reasons, we hold the district court did not clearly err in
concluding that sufficient evidence was presented to justify imposing a two-level
enhancement for possession of a gun pursuant to U.S.S.G. § 2D1.1(b)(1).

      AFFIRMED.
                        ______________________________




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