                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 4 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 99-6380
    v.                                              (D.C. No. 99-CR-79-M)
                                                         (W.D. Okla.)
    DALE LEROY HODGES,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , McKAY , and PORFILIO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         In this direct appeal, defendant Dale Leroy Hodges challenges the propriety

of his sentence following conviction for maintaining a place for manufacturing



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
a controlled substance, in violation of 21 U.S.C. § 856(a)(1), and for money

laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). Specifically he argues

that the district court erred in enhancing his sentence two levels for possession

of a firearm pursuant to USSG § 2D1.1(b)(1), and by failing to grant him

a downward departure under the “safety-valve” provisions of USSG § 5C1.2.

We affirm.


                                  BACKGROUND

      Mr. Hodges was arrested while he was tending marijuana fields located on

his property. The property had been under surveillance by law enforcement

authorities for several months. Contemporaneous with his arrest, federal and state

authorities executed a search warrant at this location, which also included a

residence. A well-worn path led from the residence to the marijuana field.

Mr. Hodges had also been observed entering and leaving the residence.

      Inside the residence, agents found equipment used for the production and

processing of marijuana. The agents also found the three firearms which form the

basis of the enhancement. The residence previously had been occupied by an

individual other than Mr. Hodges. This person had moved out approximately one

week before the search warrants were executed and was the only one who had

been seen by the authorities handling the firearms.



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       Mr. Hodges pled guilty pursuant to a plea agreement. At the sentencing

hearing, the district court granted the government’s motion for a downward

departure based on substantial assistance, enhanced the sentence for possession of

a firearm pursuant to § 2D1.1(b)(1), and determined that Mr. Hodges’s request for

a downward departure based on the safety-valve provisions found in § 5C1.2 was

moot. Mr. Hodges appeals these last two determinations.


                                        DISCUSSION

       We review de novo the district court’s interpretation of the sentencing

guidelines while we use the clearly erroneous standard to review the trial judge’s

factual determinations at sentencing.     See United States v. Roberts , 980 F.2d 645,

647 (10th Cir. 1992). We give due deference to the application of the guidelines

to the facts. See United States v. Vaziri , 164 F.3d 556, 568 (10th Cir. 1999).

       Section 2D1.1(b)(1) provides for a two-level increase in the base offense

level for certain drug-related crimes “[i]f a dangerous weapon (including

a firearm) was possessed . . . .” The government has the initial burden of proving

possession by a preponderance of the evidence.      See Vaziri , 164 F.3d at 568.

Constructive possession is sufficient to support the enhancement.      See United

States v. Payne , 81 F.3d 759, 762 (8th Cir. 1996) (“It is not necessary that an

individual be observed using the weapon, and either actual or constructive

possession is sufficient,   i.e. , the individual must have exercised ownership,

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dominion, or control either over the firearm or the premises on which it is found.”

(internal quote omitted)). Once the government meets this initial burden, the

burden shifts to the defendant to prove that it is “clearly improbable” that the

weapons were connected to the offense.    See Vaziri , 164 F.3d at 568.

      It is undisputed that Mr. Hodges owned the property where the firearms

were discovered. Moreover, the firearms were found in close proximity to the

rooms used to grow and process the marijuana. Accordingly, we find no error in

the district court’s imposition of the enhancement.

      Mr. Hodges also contends that the district court erred in concluding that,

because it had determined that he was subject to the enhancement under

§ 2D1.1(b)(1), the issue of whether he may receive the benefit of the safety-valve

provisions found in § 5C1.2 was moot. This argument is foreclosed by      United

States v. Hallum , 103 F.3d 87, 89 (10th Cir. 1996), a case this panel cannot

overrule. See United States v. Foster , 104 F.3d 1228, 1229 (10th Cir. 1997).

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED .


                                                      Entered for the Court

                                                      John C. Porfilio
                                                      Circuit Judge




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