                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 3 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 98-3161
                                                             (D. Kan.)
 T.A. DARLMON DRAINE,                                (D.Ct. No. 97-CR-40056)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant-Defendant T.A. Darlmon Draine plead guilty to possession with


      *
          This order and judgment is not binding precedent except under the doctrines of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.
intent to distribute, within 1,000 feet of a public school, 1.5 grams of crack

cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 860. He now appeals his

seventy-seven-month sentence, contending the district court erred by ordering a

two-level upward adjustment from his base offense level for possession of a

weapon under United States Sentencing Guideline § 2D1.1(b)(1). We exercise

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

district court’s enhancement.



                                    I. Background

      On April 18, 1996, Topeka police officers noticed extremely loud music

coming from a parked vehicle occupied by Mr. Draine. As an officer approached

the rear of the vehicle, Mr. Draine sped away. Mr. Draine then drove through two

posted stop signs before colliding with another car. His vehicle came to rest in a

parking lot located within 1,000 feet of a middle school in the city of Topeka.

Mr. Draine subsequently fled on foot, pursued by police officers. 1 The officers

found Mr. Draine hidden under the porch of a nearby residence. Further

examination under the porch revealed a pager cover, a Ruger .9 mm handgun, and



      1
          The government at the plea hearing stated, without objection from Mr. Draine,
that its evidence would prove the officers pursuing Mr. Draine noticed him clutching
something in front of his body. This fact is not contained in the presentence report.


                                           -2-
a small bag of marijuana. The officers also discovered $475 in cash in Mr.

Draine’s sock. A search of his vehicle revealed a whiskey bag containing

individually wrapped pieces of crack cocaine, items of drug paraphernalia, and a

small amount of marijuana.



       After pleading guilty to one count of possession with intent to distribute, 2

Mr. Draine filed objections to that portion of the presentence report which

recommended a two-level upward enhancement under U.S.S.G. § 2D1.1(b)(1) for

possession of a firearm. At the sentencing hearing, the district court adopted the

presentence report, and later issued a Memorandum and Order in which he applied

the two-level enhancement, concluding:

             Section 2D1.1(b)(1) allows an enhancement when a firearm is
       possessed during an offense; it does not have to be used. The
       application note to § 2D1.1(b)(1) provides that the adjustment should
       be applied if a weapon was present, unless it is clearly improbable
       the weapon was connected to the offense. There is ample evidence
       here of a connection between the cocaine and the firearm that was
       discovered.

(Citations omitted.)




       2
         As part of a plea agreement, two alternative counts of knowingly and
intentionally carrying a firearm during and in relation to a drug trafficking crime were
dismissed.


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                                        II. Appeal

       On direct appeal, Mr. Draine contends the district court erred in enhancing

his sentence because the government failed to establish a connection between the

cocaine seized from the vehicle and the firearm discovered under the porch. In

support of his argument, Mr. Draine claims the government offered no evidence

in support of its request for the upward adjustment, but merely relied on the

statements contained in the presentence report. By failing to offer additional

evidence, Mr. Draine claims the government failed to show he “possessed” the

weapon, and the district court later failed to articulate any facts supporting its

conclusion he “possessed” the weapon. Even if possession is established, he

argues there is a clear improbability of any connection between the gun and crack

cocaine, based on the small amount of crack cocaine involved 3 and the fact the

gun and cocaine were not kept together.



                                     III. Discussion

       Mr. Draine does not challenge any of the underlying facts in the record on

which the district court relied in imposing the enhancement. We therefore review


       3
         In arguing no connection exists between the gun and recovered drugs, Mr.
Draine contends “he merely intended to smoke the quantity of cocaine with some other
people,” and that “[t]his type of activity with the small quantity of cocaine involved does
not reflect the violence usually associated with drug trafficking activity.”


                                            -4-
his legal challenges de novo. See United States v. Johnson, 42 F.3d 1312, 1320

(10th Cir. 1994), cert. denied, 514 U.S. 1055 (1995).



      In determining whether to apply an enhancement under U.S.S.G.

§ 2D1.1(b)(1), “‘[t]he government bears the burden of proving by a

preponderance of the evidence the gun was proximate to the drug offense.’”

United States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998) (quoting United

States v. Lang, 81 F.3d 955, 964 (10th Cir. 1996)), cert. denied, ___ S. Ct. ___,

1999 WL8590 (U.S. Jan. 11, 1999) (No. 98-7192). 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.’” Id.

(quoting United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993)). This

nexus may be established by showing the weapon’s location is near the general

location “‘where drugs or drug paraphernalia are stored or where part of the

transaction occurred.’” Id. (quoting Roederer, 11 F.3d at 983.) Once the

government shows Mr. Draine possessed the gun in proximity to the drugs, the

burden shifts to Mr. Draine to show the clear improbability that the weapon

related to the offense. Id.




                                         -5-
      Contrary to Mr. Draine’s contentions, the government’s primary reliance on

the presentence report, rather than introduction of any additional evidence at the

sentencing hearing, does not preclude enhancement of the sentence. At

sentencing, the district court may rely on facts stated in the presentence report

unless the defendant objects to them. Only when a defendant objects to a fact in a

presentence report must the government prove that fact at a sentencing hearing by

a preponderance of the evidence. United States v. Shinault, 147 F.3d 1266, 1277

(10th Cir.), cert. denied, 119 S. Ct. 459 (1998). The defendant’s failure to object

to a fact in a presentence report, or failure to object at the hearing, acts as an

admission of fact. Id. at 1278. Because the presentence report contains facts not

disputed by Mr. Draine, it provides ample evidence for the government to present

and the district court to consider in enhancing his sentence under U.S.S.G.

§ 2D1.1(b)(1).



      For similar reasons, Mr. Draine’s complaint that the district court failed to

articulate evidence showing he “possessed” the gun is misguided. While a district

court may not satisfy its obligation by simply adopting the presentence report as

its finding, Mr. Draine waived his right to challenge the court’s reliance on the

report by failing to object to any of the factual findings contained therein. See

United States v. Yarnell, 129 F.3d 1127, 1137 (10th Cir. 1997).


                                           -6-
      Here, the government relied on, and the district court adopted, the

undisputed facts contained in the presentence report which clearly establish Mr.

Draine possessed the gun. These facts show Mr. Draine took the gun and other

drug-related items from the vehicle when he fled and deposited them under the

porch where he hid. Thus, the location of the crack cocaine and gun, first

together in Mr. Draine’s car, and then separated only by Mr. Draine’s hasty flight,

proves by a preponderance of the evidence a temporal and spacial relation existed

between the weapon, the cocaine drug trafficking activity, and Mr. Draine. In

other words, the gun’s location at, and later near, the general location where the

crack cocaine was stored – i.e., the vehicle – shows the proximity necessary to

establish possession by Mr. Draine. Thus, the district court’s failure to re-

articulate in detail the undisputed facts in the presentence report supporting its

conclusion does not change the result, nor does the court’s reliance on them

constitute any error.



      Once the government presented facts showing Mr. Draine possessed the

gun in proximity to the drugs, Mr. Draine failed to meet his burden of showing

the clear improbability that the gun related to the cocaine. His conclusory

allegation that these two items lack any connection to each other because they

“were not kept together” ignores the fact of their containment together initially in


                                          -7-
the vehicle, and then separated only by Mr. Draine’s hasty flight as police officers

pursued him.



      Similarly, we reject his argument no nexus existed between the gun and the

crack cocaine because the small amount of crack cocaine was for use by him and

his friends, and not part of any drug trafficking activity. Despite Mr. Draine’s

contentions on appeal, the evidence shows the cocaine was individually wrapped

for apparent resale, and Mr. Draine plead guilty to possession of crack cocaine

with intent to distribute. Moreover, the items transported by Mr. Draine – a pager

cover, the Ruger .9 mm handgun, small bag of marijuana, and the $475 cash

hidden in Mr. Draine’s sock – are generally recognized as “tools” of the drug

trafficking trade. See United States v. Martinez, 938 F.2d 1078, 1082-83 (10th

Cir. 1991). Thus, it is apparent in this instance that drug trafficking with

possession of a weapon deserves upward enhancement under U.S.S.G.

§ 2D1.1(b)(1). Accordingly, we hold the district court did not err in finding a

§ 2D1.1(b)(1) offense level increase applied.




                                          -8-
The sentence of the district court is hereby AFFIRMED.


                              Entered by the Court:

                              WADE BRORBY
                              United States Circuit Judge




                                -9-
