                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 31 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATE OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-1197
                                                    (D.C. No. 99-CR-87-D)
    TOMAS GUZMAN-OTERO,                                   (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before EBEL, KELLY, and LUCERO , 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(G). The case is therefore

ordered submitted without oral argument.

         In this direct appeal, defendant-appellant Tomas Guzman-Otero challenges

his 121-month sentence following conviction of conspiracy to possess with intent


*
      This order and judgment is not binding precedent, except under the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 distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 846. Specifically, defendant asserts that the district court erred

in (1) finding him ineligible for a downward departure for minimal participation

as provided in U.S.S.G. § 3(b)1.2; (2) finding him ineligible for the safety value

relief afforded under 18 U.S.C. § 3553(f); 2 and (3) finding his criminal history

category to be two as a result of being on probation for a number of traffic

violations at the time of the drug offense. We have jurisdiction pursuant to 18

U.S.C. § 3742(a), and we affirm.


                                   I. Background

      On March 1, 1999, defendant, along with two codefendants, was arrested in

the King Soopers grocery store parking lot near Hampden Avenue and Monaco

Parkway in Denver, after selling approximately two pounds of methamphetamine

to a confidential source. A subsequent search of the truck in which the

defendants were traveling revealed a loaded Ruger 9mm pistol in the rear

passenger seat. Defendant, who was sitting in the rear passenger seat of the

truck, had in his possession an ammunition magazine for the pistol. It was later

determined that the weapon belonged to one of the codefendants.




2
      U.S.S.G. § 5C1.2 adopts verbatim 18 U.S.C. § 3553(f)(1)-(5).

                                         -2-
      Defendant entered into a plea agreement whereby he entered a plea of

guilty to one count of conspiracy to possess and distribute methamphetamine, and

in return, the government agreed to dismiss the three remaining counts of the

indictment. He was sentenced to the statutory minimum of 121 months’

imprisonment, five years’ supervised release, and a $100 special assessment.

Because defendant stipulated to possession of a firearm during the course of the

drug offense, the sentencing court enhanced his sentence pursuant to U.S.S.G.

§ 2D1.1(b)(1) and rejected his request for sentencing under the “safety valve”

provision of the Sentencing Reform Act, 18 U.S.C. § 3553(f). Because we find

no error in either of these sentencing decisions, we have no need to reach

defendant’s remaining claims of error.


                                  II. Discussion

      “The Sentencing Guidelines provide for an offense level enhancement of

two points ‘[i]f a dangerous weapon (including a firearm) was possessed’ during a

drug conspiracy.” United States v. Vaziri, 164 F.3d 556, 568 (10th Cir. 1999)

(quoting U.S.S.G. § 2D1.1(b)(1)). “‘The [enhancement for weapon possession]

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

the weapon was connected with the offense.’” Id. (quoting U.S.S.G. § 2D1.1.,

comment., (n.3)).



                                         -3-
      To establish possession of a firearm for the purpose of enhancing a drug

sentence, the government bears the burden of proving by a preponderance of the

evidence that the gun was physically proximate to the drug offense. United States

v. Contreras, 59 F.3d 1038, 1040 (10th Cir. 1995). This burden is met if the

government presents evidence “that a temporal and spatial relation existed

between the weapon, the drug trafficking activity, and the defendant.” United

States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993) (further quotations

omitted). This nexus 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. at 983 (citation omitted). Once the

government establishes that the gun was possessed in proximity to the drug

transaction, the burden shifts to the defendant to “show it is clearly improbable

that the weapon was related to the offense.” United States v. Robertson, 45 F.3d

1423, 1449 (10th Cir. 1995) (further quotation omitted).

      “We review factual findings under USSG § 2D1.1(b)(1) for clear error; we

give due deference to the application of the Guidelines to the facts; [and] we

review purely legal questions de novo.” Vaziri, 164 F.3d at 568. On appeal,

defendant, in a convoluted manner, argues that, although the sentencing guideline

computation section of the plea agreement indicates a two-level enhancement for

possession of the gun, there was never any proof that defendant actually


                                         -4-
possessed the gun, and therefore, the district court’s two-level enhancement under

U.S.S.G. § 2D1.1(b)(1) was error. 3 It was undisputed that the weapon was

discovered in the rear passenger seat of the truck where defendant was sitting at

the time of the drug trafficking transaction. At the time of his arrest, defendant

was in possession of a magazine of ammunition for the gun. See United States v.

Roberts, 980 F.2d 645, 647 (10th Cir. 1992) (inferring connection between

weapons and drug possession where guns and ammunition were “close at hand” to

large amount of marijuana).

      As this court has previously noted, enhancement under § 2D1.1(b)(1) is

designed to reflect the increased danger of violence when drug traffickers add

firearms to the mix. See Contreras, 59 F.3d at 1040. The government satisfied

its burden by showing “mere proximity” of the weapon to the offense. Roberts,

980 F.2d at 647. Although defendant averred and the government admitted that

the weapon did not belong to defendant, this does not establish that the weapon

was not connected to the conspiracy. Vaziri, 164 F.3d at 568. Consequently,

defendant failed to meet his burden of proof under Robertson by establishing that

it was clearly improbable that the pistol in the rear passenger seat of the truck had



3
       Defendant’s brief is woefully lacking in authority and adequate proof
reading. We expect counseled briefs to be readable, grammatically correct, and
well-reasoned. We also remind counsel of his duty to support his arguments with
authority. See Fed. R. App. P. 28(a)(9)(A).

                                         -5-
any relation to his possession of the large quantity of methamphetamine. 4 We

therefore conclude that the district court did not err in enhancing defendant’s

offense level under § 2D1.1(b)(1).

      “Section 3553(f) was enacted as a ‘safety valve’ to permit courts to

sentence less culpable defendants to sentences under the guidelines, instead of

imposing mandatory minimum sentences.” United States v. Acosta-Olivas,

71 F.3d 375, 378 (10th Cir. 1995). This provision allows the sentencing court to

depart from the statutory minimum sentence if it finds that the defendant meets

certain criteria including that “the defendant did not use violence or credible

threats of violence or possess a firearm or other dangerous weapons (or induce

another participant to do so) in connection with the offense.” U.S.S.G.

§ 5C1.2(2).

      We review the district court’s interpretation of § 3553 and U.S.S.G.

§ 5C1.2 de novo. See United States v. Gigley, 213 F.3d 503, 505 (10th Cir.

2000). Because of our conclusion that the district court did not err in determining


4
      The few cases cited by counsel in defendant’s brief in support of this
argument appear to support an argument that the district court’s enhancement for
possessing a weapon in connection with the drug offense was in error based on
the Supreme Court’s ruling in Bailey v. United States, 516 U.S. 137 (1995). This
argument is utterly without merit. Bailey modified only the interpretation and
application of the term “use” as applied to firearms. See United States v. Hallum,
103 F.3d 87, 89 (10th Cir. 1996). Because defendant’s sentence was enhanced for
possessing a dangerous weapon in connection with a drug trafficking crime, his
Bailey argument fails.

                                         -6-
that defendant possessed a weapon in connection with a drug trafficking offense,

we also conclude that the district court did not err in finding defendant ineligible

for application of the safety value provision.

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

Colorado is AFFIRMED.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




                                         -7-
