                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            SEP 19 2000

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                                 Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 99-6342
 v.                                                 (D.C. No. CR-99-43-L)
                                                         (W.D. Okla.)
 ROBERT DALE SMITH,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, KELLY and HENRY, Circuit Judges.


      Robert Dale Smith appeals his conviction after a jury trial on four counts

related to the manufacture and distribution of methamphetamine in violation of 21

U.S.C. § 841(a) and (d) and 21 U.S.C. § 856(a)(1). We affirm.

                                          I

      Mr. Smith first argues the district court erred in denying his pre-trial

motion to suppress evidence obtained during a search of his home without first

holding an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978),

      *
       This order and judgment is not binding precedent, except under the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.
to determine the validity of the search warrant. Mr. Smith asserts the warrant

was not supported by probable cause because the police relied on an unknown

confidential informant, three witnesses cited in the warrant affidavit later denied

having made the alleged statements, and the warrant affidavit omitted any

mention of the criminal history of a fourth witness. After review of the Affidavit

for Search Warrant, the district court concluded Mr. Smith was not entitled to a

Franks hearing because he failed to meet his burden of showing deliberate falsity

or reckless disregard for truth in the warrant affidavit. Furthermore, the court

determined “the totality of information contained in the affidavit” supported a

finding of probable cause even absent the disputed material.

     Assuming a criminal defendant makes a substantial preliminary showing

that a search warrant was issued based upon false statements made knowingly or

recklessly in the warrant affidavit, “if, when material that is the subject of the

alleged falsity or reckless disregard is set to one side, there remains sufficient

content in the warrant affidavit to support a finding of probable cause, no

hearing is required.” Franks, 438 U.S. at 171-72. The district court denied Mr.

Smith’s motion for a Franks hearing based on its belief that the warrant affidavit

contained sufficient information to support the probable cause finding even

absent the disputed witness statements. We thus review the sufficiency of the

remaining information to see whether it presented the “issuing magistrate [with]


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a substantial basis for finding probable cause, giving great deference to the

issuing magistrate judge’s decision.” United States v. Kennedy, 131 F.3d 1371,

1375 (10th Cir. 1997) (internal quotations omitted). Considering the totality of

the circumstances, the judge must have had substantial basis to “conclud[e] that a

search would uncover evidence of wrongdoing.” Id. at 1378 (internal quotations

omitted).

      In this case, leaving out the statements of the contested witnesses, there

remained a telephone call from a confidential informant stating that

methamphetamine was being manufactured in Mr. Smith’s house. This assertion

was corroborated by the presence of the drug in a car searched as it left the house

and the uncontested statement of a witness that he saw methamphetamine and

manufacturing supplies when he was inside the house. Giving the required

deference to the magistrate judge’s determination, this information was sufficient

to support issuance of a search warrant for Mr. Smith’s home.

      Although the warrant affidavit omitted mention of the key witness’s past

felony conviction and possible involvement in the manufacturing operation, in

the face of corroborating evidence this omission was not substantial enough to

vitiate the finding of probable cause. 1 See id. at 1377 (“[I]n order to invalidate a


      1
       Because we affirm the district court’s finding that the warrant was
supported by probable cause, we need not decide whether Mr. Smith met his
burden of showing deliberate falsity or reckless disregard for the truth under the

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warrant based on a reckless omission, the information excluded from the

affidavit must be material to the magistrate judge’s finding of probable cause.”

(emphasis added)). Consequently, the district court did not err in denying an

evidentiary hearing on the Franks issue.

                                           II

      Mr. Smith also contends the evidence at trial was not sufficient to support

the jury’s verdict. “[W]e reverse on a sufficiency of the evidence claim ‘only if

no rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” United States v. Haslip, 160 F.3d 649, 652 (10th

Cir. 1998), cert. denied, 526 U.S. 1044 (1999); see also Jackson v. Virginia, 443

U.S. 307, 319 (1979). In making this determination, we “view the evidence and

the reasonable inferences to be drawn therefrom in the light most favorable to the

government.” Haslip, 160 F.3d at 652. In light of trial testimony by two

witnesses placing Mr. Smith at his home on the night in question, testimony by a

police expert stating the manufacture of methamphetamine had likely gone on for

several weeks, substantial amounts of methamphetamine found on the scene, and

evidence placing manufacturing activities in virtually every room of Mr. Smith’s

house, enough evidence was presented for a rational juror to conclude that Mr.

Smith was guilty of the possession and manufacture of methamphetamine.



Franks standard.

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     Mr. Smith argues essentially that the testimony of one defense witness

placing him over a hundred miles away from his home on the night in question

was more credible than testimony of the prosecution witnesses placing him at the

scene. Determinations on the credibility of witnesses and the weight of evidence

are entirely within the province of the jury, and “unless the testimony is

‘inherently incredible’. . . . we must resolve credibility choices in favor of the

jury’s verdict.” United States v. Smith, 131 F.3d 1392, 1399 (10th Cir. 1997);

see also United States v. Springfield, 196 F.3d 1180, 1184 (10th Cir. 1999) (“We

do not question the jury’s credibility determinations or its conclusions about the

weight of the evidence.”), cert. denied, 120 S.Ct. 1444 (2000). We find nothing

“inherently incredible” in the testimony of the prosecution witnesses in this case.

Mr. Smith’s challenge to the jury verdict must fail.

                                         III

     Finally, Mr. Smith appeals the application of a two-level sentencing

enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of firearms in

connection with a drug trafficking offense. We review the district court’s

application and interpretation of the Sentencing Guidelines de novo and review

any underlying factual findings for clear error. See United States v. Dickerson,

195 F.3d 1183, 1188 (10th Cir. 1999); United States v. Flores, 149 F.3d 1272,

1279 (10th Cir. 1998), cert. denied, 525 U.S. 1092 (1999).


                                         -5-
     While searching Mr. Smith’s residence in January 1999, police found a

number of guns in a living-room cabinet, a loaded nine-millimeter handgun in a

bedroom drawer, and two rifles (one a semi-automatic assault rifle) in the closet

of the same bedroom. Drug paraphernalia and digital scales were found in the

room, with more drug paraphernalia and a quantity of methamphetamine in an

adjacent bathroom. In addition, police testimony at trial established that

evidence of various stages of drug manufacturing activity was “strung throughout

the entire residence.”

     When arguing for a sentencing enhancement based on weapons possession,

the government must prove by a preponderance of the evidence that the

defendant possessed a dangerous weapon such as a gun “in proximity” to the

drug offense. See United States v. Roberts, 980 F.2d 645, 647 (10th Cir. 1992).

The burden then shifts to the defendant to prove “an exception to the blanket rule

that mere proximity is sufficient,” which exists only if evidence suggests it is

“clearly improbable” that the gun was connected to the drug offense. Id.; see

also Dickerson, 195 F.3d at 1188. The district court applied this exception to the

majority of the guns found in Mr. Smith’s home, determining the guns in his

living room gun cabinet were most likely connected to his hunting hobby rather

than to the drug offenses. However, the court held the sentencing enhancement

should be applied based on the presence of the loaded nine-millimeter handgun


                                         -6-
in a room in which drug paraphernalia was present, a decision supplemented by

the presence of the semi-automatic assault rifle in the same bedroom. This

determination was not clearly erroneous. See, e.g., Dickerson, 195 F.3d at 1188

(noting that one found guilty of controlling a building for the purpose of illegal

drug activity under 21 U.S.C. § 856(a) is accountable for possession of firearms

within the building); United States v. Contreras, 59 F.3d 1038, 1040 (10th Cir.

1995) (upholding a sentencing enhancement despite the defendant’s assertion

that his gun was kept for “personal home protection”); Roberts, 980 F.2d at 647-

48 (finding an unloaded semi-automatic weapon present in a home in which

drugs were stashed was “most likely” connected to the drug offense).

         For the reasons given above, we AFFIRM the judgment of the district

court.

                                 ENTERED FOR THE COURT

                                 Stephanie K. Seymour
                                 Chief Judge




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