                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 31 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 99-3260
 v.
                                              (D.C. No. 98-CR-40082-1-DES)
                                                    (District of Kansas)
 WILLIAM H. ZUGG,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Defendant-Appellant William H. Zugg (“Zugg”) appeals his sentence for

distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Zugg

argues that the district court erred when it enhanced his sentence for possession of

a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1). Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, 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not binding precedent, except under the doctrines of law of the case, res judicata,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

      Zugg and a co-defendant, Macario Maldonado (“Maldonado”) were charged

in a four-count indictment with several drug-related charges: 1) conspiracy to

distribute methamphetamine; 2) distribution of methamphetamine; 3) maintaining

a place for the purpose of distributing or using a controlled substance; and 4) use

of a firearm during a drug-trafficking crime.

      The charges stemmed from a controlled purchase of drugs between a

confidential informant (“CI”) working with the Drug Task Force in Salina,

Kansas, and Zugg and several of his associates. On June 2, 1997, the CI arranged

to purchase five to six ounces of methamphetamine from Michael Linn, an

associate of Zugg’s, for $9,000.00. The CI then drove Linn to an apartment

where Linn attempted to set up the purchase of the drugs with several of his

associates. After a period of time, Linn exited the apartment and approached the

CI’s car. Linn informed the CI that a person inside the apartment was counting

the money to ensure it was all there, and if it was, then the methamphetamine

would be picked up. During this conversation, the CI noticed that Linn was

carrying a weapon in his waistband. When the CI asked Linn about the gun, Linn

replied that it was given to him by someone inside the apartment to protect

himself.




                                        -2-
      A short time after this conversation, Zugg, Jesse Garman, another associate

of Zugg’s, and an unknown male drove away from the house in a grey Buick.

After a period of time elapsed, the CI again made contact with Linn, who advised

the CI that Garman was out of town trying to make contact with the source, and

that only one ounce of methamphetamine could be obtained. After making

arrangements with Linn to meet him later in a parking lot to complete the

transaction, the CI left the apartment. Garman was later observed entering the

apartment with a small black pouch.

      During surveillance of the apartment, Task Force Agents observed Linn

leave the apartment and go to a convenience store across the street. Linn then got

into a cab. Officers stopped the cab and searched the vehicle. The officers

located $7002 and twenty-six grams of methamphetamine. The agents then

returned to the apartment where they encountered Garman, who indicated that

Zugg knew the $9,000 was for methamphetamine.

      Task Force Agents then obtained a search warrant and searched Zugg’s

residence. After entering the house, officers encountered Maldonado, who

apparently lived with Zugg at the time, as well as several items of drug

paraphernalia, marijuana residue, rolling papers, a spoon with traces of

methamphetamine, and triple beam scales. Several handguns, shotguns and

assault rifles were also recovered. It appeared to the agents that Maldonado was


                                        -3-
attempting to load a weapon as the officers entered the room. Maldonado later

told Zugg that he was “shooting dope with the gun in his hand when the police

arrived,” and apparently claimed to Zugg that he tried to fight the police when

they entered Zugg’s house. 1

      In his presentence interview, Zugg admitted that he took Garman to Great

Bend, Kansas, to attempt to buy drugs. When they were unable to locate the

drugs in Great Bend, they went back to Zugg’s house where Zugg decided to sell

one of his “8 balls,” and proceeded to use his “triple beams to cut the hell out of

it.” Zugg stated that Maldonado then drove Garman back to his apartment and

returned to Zugg’s house. Zugg told Maldonado that he had “a bad feeling about

the whole thing” and thought the police might be coming. He therefore instructed

Maldonado to get rid of any “dope” he might have on him.

      On April 26, 1999, Zugg entered a guilty plea to one count of distribution

of methamphetamine in the amount of twenty-six grams in violation of 21 U.S.C.

§ 841(a)(1). The remaining counts of the indictment were dismissed. Zugg was

sentenced to 46 months in prison and four years of supervised release. The

district court enhanced Zugg’s sentence by two levels for possession of a firearm

during a drug trafficking crime under U.S.S.G. § 2D1.1(b)(1).



      1
        None of the weapons found in Zugg’s house were seized by the police and
all were returned to Zugg.

                                        -4-
                                  DISCUSSION

      Zugg argues there was no evidence to support a two-level enhancement

under U.S.S.G. § 2D1.1(b)(1), which provides: “If a dangerous weapon (including

a firearm) was possessed, increase by 2 levels.” We review factual findings under

§ 2D1.1(b)(1) for clear error and review the district court’s interpretation and

application of the guidelines de novo. See United States v. Flores, 149 F.3d

1272, 1279 (10th Cir. 1998).

      “The enhancement for weapon possession reflects the increased danger of

violence when drug traffickers possess weapons. The adjustment should be

applied if the weapon was present, unless it is clearly improbable that the weapon

was connected with the offense.” U.S.S.G. § 2D1.1 note 3. The term offense is

defined under the guidelines as the “conviction and all relevant conduct under §

1B1.3 (Relevant Conduct).” U.S.S.G. § 1B1.1 note 1(l). Here, several of the

dismissed counts of the indictment would require grouping under U.S.S.G. §

3D1.2(d). U.S.S.G. § 1B1.3(a)(2) provides that, “in such event [when dismissed

counts require grouping], specific offense characteristics are to be determined

with reference to all acts that were part of the same course of conduct or common

scheme or plan as the offense of conviction.” United States v. Roederer, 11 F.3d

973, 982 (10th Cir. 1993) (internal quotations omitted).




                                        -5-
      “Possession of a weapon in connection with a drug trafficking offense is

established if the government proves by a preponderance of the evidence that a

temporal and spacial relation existed between the weapon, the drug trafficking

activity, and the defendant.” Flores, 149 F.3d at1280 (internal quotations

omitted). The necessary nexus between the weapon, drug trafficking and

defendant may be established by showing that “the weapon was located nearby the

general location where drugs or drug paraphernalia are stored or where part of the

transaction occurred.” Id. (internal quotations omitted). In addition, the

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.” United States v. McFarlane, 933 F.2d 898, 899

(10th Cir. 1991). “Once the government establishes that the weapon was

possessed in proximity to the drugs or transaction, the burden shifts to the

defendant to show it is clearly improbable that the weapon was related to the

offense.” Flores, 149 F.3d at 1280 (internal quotations omitted).

      Here, the government met its burden by showing that the guns were present

in Zugg’s home where part of the drug transaction occurred. Zugg admitted in his

presentence interview that after driving around with Garman to locate

methamphetamine to sell to the CI, he and Garman went back to his house and cut

up an 8 ball which he then gave to Garman to sell to the CI. Thus, part of the


                                         -6-
transaction took place at the house where the guns were ultimately found later

that same day. See Roederer, 11 F.3d at 983 (upholding enhancement, in part,

because the defendant “possessed a firearm in his apartment during the course of

drug distribution activities” even though the actual sale of drugs took place in a

nearby parking lot). In addition, the government sustained its burden by

establishing that Maldonado was actually holding one of the firearms in Zugg’s

house at the time the police executed the search warrant. Maldonado even

bragged to Zugg that he attempted to fight the cops when they entered Zugg’s

house to execute the search warrant. As noted above, sentencing courts may

attribute to a defendant a codefendant’s possession of a weapon if it was

reasonably foreseeable by him. We believe it was reasonably foreseeable to Zugg

that Maldonado would possess a weapon to protect the drugs given that: (1)

Maldonado was a codefendant of Zugg’s; (2) Maldonado lived at Zugg’s

apartment; (3) the weapons in Zugg’s house were plentiful, obvious, and

accessible; and (4) Maldonado was warned by Zugg to remove any dope he

possessed because Zugg believed the police might be on to them.




                                         -7-
      With the government’s initial burden met, the enhancement is appropriate

unless Zugg can show that it was clearly improbable that the weapon was

connected with the offense. Zugg has produced no such evidence. Therefore we

uphold the district court’s enhancement.


                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




                                       -8-
