                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 9 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 97-3131
                                                 (D.C. No. 96-40057-01-DES)
    DANIEL DWIGHT LANDIS,                                  (D. Kan.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before BRORBY , BARRETT , and BRISCOE , Circuit Judges.




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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Defendant Daniel Dwight Landis appeals from the district court’s decision

sentencing him to 87 months’ imprisonment following his guilty plea for attempt

to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1). We have

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.

      In calculating defendant’s sentence, the district court imposed a two-level

upward adjustment to defendant’s base offense level for possession of a firearm

pursuant to § 2D1.1(b)(1) of the United States Sentencing Guidelines (“USSG”).

Defendant asserts that imposition of this enhancement was wrong, arguing that

the government presented no evidence in support of the enhancement, and that he

had no knowledge of the firearm. Defendant does not challenge any of the

underlying facts in the record on which the district court relied in imposing the

enhancement. We review his legal challenges de novo.          See United States v.

Johnson , 42 F.3d 1312, 1320 (10th Cir. 1994).

      Current case law discussing the standards applicable to a review of an

enhancement pursuant to § 2D1.1(b)(1) states that the government bears the

initial burden of demonstrating possession of a weapon.       See United States v.

Smith , 131 F.3d 1392, 1400 (10th Cir. 1997) (citing      United States v. Roberts ,

980 F.2d 645, 647 (10th Cir. 1992),   cert. denied , 1998 WL 38131 (U.S. Feb. 23,

1998) (No. 97-7651). This burden is satisfied if the evidence establishes mere

proximity of the weapon to the offense.    See id. The enhancement is imposed


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upon this showing unless the defendant demonstrates that “it is clearly improbable

that the weapon was connected with the offense.”   Id. (quoting USSG § 2D1.1,

application note 3).

      Here, defendant argues that enhancement was improper because the

government presented no evidence on point and stated at the sentencing hearing

that it had no evidence defendant knew the gun was present. First, we conclude

that the government did present evidence as part of the presentence report.

Further, the government’s statement at the sentencing hearing does not prevent

the district court from assessing the evidence and imposing the enhancement

where warranted.   Cf. United States v. Flores-Payon , 942 F.2d 556, 562 (9th Cir.

1991) (discussing enhancement under 2D1.1(b)(1) in connection with defendant’s

plea bargain, stating: “the government could not bargain away the district court’s

duty to consider all relevant facts in applying the Sentencing Guidelines”).

      Defendant also argues that imposition of the enhancement was improper

because he had no knowledge of the firearm or any connection between the

firearm and the offense, and that he had never seen any of his codefendants use

a firearm in connection with any drug activities. On appeal, he does not

challenge the underlying facts: that a firearm was recovered on the premises

where the offense occurred, in a hallway linking living quarters and the drug lab;

that the firearm was a sawed-off shotgun with a modified hand-grip; and that


                                          -3-
the firearm was loaded.   1
                              See Appellant’s App. at 46. Defendant testified that he

previously had visited both the drug lab and the living quarters, although he said

he had never seen a gun on the premises.       See id. at 38-40.

      Case law is clear that defendant’s actual knowledge of the firearm is not

required for enhancement pursuant to 2D1.1(b)(1).        See United States v.

Underwood , 938 F.2d 1086, 1090 (10th Cir. 1991). Indeed, this court has

recognized that a sentencing court “may attribute to a defendant weapons

possessed by his codefendants if the possession of weapons was known to the

defendant or reasonably foreseeable by him.”        Smith , 131 F.3d at 1400 (quotation

omitted); see also United States v. Garza , 118 F.3d 278, 285-86 (5th Cir. 1997)

(district court “may ordinarily infer that a defendant should have foreseen

a codefendant’s possession of a dangerous weapon, such as a firearm, if the

government demonstrates that another participant knowingly possessed a weapon

while he and the defendants committed the offense”) (quotation omitted),

cert. denied , 118 S. Ct. 699 (1998). We agree with the district court that

defendant has not met his burden to demonstrate that it was “clearly improbable”

that the firearm was connected to the offense. He has not argued that his




1
      His objections to the presentence report contained an assertion that there
was no allegation that the firearm was loaded. He does not continue this
challenge on appeal.

                                            -4-
codefendant’s possession of a weapon was not reasonably foreseeable. The

judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                   Entered for the Court



                                                   James E. Barrett
                                                   Senior Circuit Judge




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