                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 15 1999
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 98-1203
 v.
                                                   (D.C. No. 97-CR-71-D)
                                                         (D. Colo.)
 RICHARD ROSTER,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Defendant-Appellant Richard Roster appeals from his sentence on a single

count of conspiracy to possess with intent to distribute cocaine. He contends that

the district court erred in awarding him a two-level firearms enhancement under

U.S.S.G. § 2D1.1(b)(1). We affirm.




      *
       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) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                 BACKGROUND

      Richard Roster pled guilty in February 1998 to conspiracy to possess with

intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, on

charges stemming from a drug transaction that occurred on January 11, 1997, at a

Chili’s restaurant in Colorado Springs. 1 On that day, Roster and three friends

(Andrew McCardell, Mauricio Roman, and Israel Reyes) arrived at the restaurant

to assist another friend, Christopher Valle, in a deal to sell more than 400 grams

of cocaine to two undercover agents. 2 Roster and his friends sat a few tables

away from Valle and the agents. At one point, Reyes and Roman left to check the

parking lot for police surveillance while Roster and McCardell remained in the

restaurant. Reyes also checked in on Valle as the transaction was carried out in

the men’s restroom. After eating, Roster and McCardell moved to the bar section

of the restaurant and drank some beers.

      Roster testified at his sentencing hearing that although he did not directly

participate in the drug transaction, he “was there,” and he “knew what was going

on.” (Sent. Tr. at 11.) He testified that he personally did not have any weapon on

him during the deal, but when asked by his own counsel whether he was aware

      1
       Roster and five co-defendants were indicted on drug and firearm charges
on March 13, 1997. Roster was named in only one of six counts in the
indictment.
      2
       Roster concedes that he had an ownership interest in the cocaine supplied
by Valle in the deal.

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that his companions had guns during the transaction, Roster testified that he

assumed they did, even though he did not see any weapons until they left the

restaurant and returned to their vehicle. (See id. at 14.) At that point, he noticed

that Roman, McCardell, and Valle all had guns. (See id. at 15.)

      After establishing a base offense level of 24 for the amount of cocaine at

issue, the district court awarded Roster a two-level firearms enhancement under

U.S.S.G. § 2D1.1, “because at least one firearm was present during the

transaction on January 11, 1997.” (Id. at 37.) The court found that the

enhancement applied even if Roster did not personally possess a weapon, because

Roster was aware that Roman, McCardell, and Valle had weapons in connection

with the deal. (See id.)

                                   DISCUSSION

      We review a district court’s legal interpretation of the Sentencing

Guidelines de novo, but we review the court’s factual determinations at

sentencing for clear error. See United States v. Roberts, 980 F.2d 645, 647 (10th

Cir. 1992).

      Section 2D1.1(b)(1) of the Sentencing Guidelines states: “If a dangerous

weapon (including a firearm) was possessed, increase by 2 levels.” The

commentary to this provision adds:

      The enhancement for weapon possession reflects the increased
      danger of violence when drug traffickers possess weapons. The

                                         -3-
      adjustment should be applied if the weapon was present, unless it is
      clearly improbable that the weapon was connected with this offense.

U.S.S.G. § 2D1.1(b)(1), comment. (n.3).

      The government bears the initial burden of proving possession by a

preponderance of the evidence. See Roberts, 980 F.2d at 647. This burden may

be met “even if there is no evidence other than proximity to suggest that the gun

was connected to the offense.” Id. Once the government meets its burden, the

defendant may escape the enhancement only by proving the exception established

in the commentary to § 2D1.1 – that it is “clearly improbable” that the weapon

was connected with the offense. See id.

      Roster has not made any showing that it was clearly improbable that the

weapons were connected with the offense. Instead, Roster submits that the

enhancement is inapplicable because there was no evidence that he personally

possessed any weapon during the deal or that he had actual knowledge of his

compatriots’ possession of weapons at the time the transaction took place.

      Both contentions are unavailing. First, personal possession of a firearm is

not necessary to trigger application of § 2D1.1(b)(1). See United States v. Smith,

131 F.3d 1392, 1400 (10th Cir. 1997) (upholding firearms enhancement based on

loaded weapons found in methamphetamine lab where defendant worked, even

though none was registered to defendant or bore his fingerprints), cert. denied,

118 S. Ct. 1109 (1998). Second, the sentencing court may “‘attribute to a

                                          -4-
defendant weapons possessed by his codefendants if the possession of weapons

was known to the defendant or reasonably foreseeable by him.’” Id. (quoting

United States v. McFarlane, 933 F.2d 898, 899 (10th Cir. 1991)).

      The preponderance of the evidence before the sentencing court was

sufficient to conclude that weapons were present during, and connected to, the

drug transaction. Roster offered no evidence to the contrary, and conceded at his

sentencing hearing that he assumed that his friends were carrying guns at the

restaurant to back up Valle during the deal. Because it was reasonably

foreseeable to Roster that his cohorts possessed weapons during the sale, the

district court did not err in attributing to Roster weapons possessed by his

codefendants. The court’s application of the two-level enhancement under §

2D1.1(b)(1) was proper.

      AFFIRMED.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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