                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               JUN 11 1999
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                No. 98-6065
                                                     (D. Ct. No. CR-97-152-C)
 MIGUEL ANGEL DUQUE, aka, Duke                              (W.D. Okla.)
 Duque,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in 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.

      Defendant-Appellant Miguel Angel Duque pled guilty to one count of

possession with intent to distribute approximately five (5) pounds of marijuana.



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
The district court sentenced him to sixty months imprisonment followed by a

four-year period of supervised release. Defendant appeals his conviction, arguing

that the district court erred in applying a two-level firearm enhancement pursuant

to United States Sentencing Guideline (“U.S.S.G.”) § 2D1.1(b)(1) and that he

should have received a downward adjustment in his base offense level under

U.S.S.G. § 3B1.2 because he was a minor or minimal participant in the criminal

enterprise. We exercise jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. §

1291. We affirm the sentence imposed by the district court.

                                  I. Background

      The defendant was charged, along with numerous other individuals, in a

seventy-count indictment arising out of a multi-ton marijuana importation and

distribution ring. Specifically, he was charged with one count of conspiracy to

possess with the intent to distribute marijuana (count 1) and two counts of

possession with intent to distribute approximately five (5) pounds of marijuana

(counts 53 and 54). Although defendant was not involved in the importation of

the marijuana, he was a significant distributor in the organization. Defendant

pled guilty to count 53.

      The presentence report (“PSR”) made reference to defendant’s admissions

that he possessed several firearms during the course of the drug trafficking

operation. In addition, although the operation handled tons of marijuana, the


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defendant was only held accountable for 300.15 kilograms of marijuana

equivalent in the PSR, the amounts he personally distributed. The PSR

recommended increasing the defendant’s base offense level by two points

pursuant to U.S.S.G. § 2D1.1(b)(1). It made no adjustment upward or downward

for Mr. Duque’s role in the offense under U.S.S.G. § 3B1.2. Defendant objected

to the PSR’s application of the above Sentencing Guidelines. In addition,

defendant objected to certain facts in the PSR pertaining to weapons on the

ground that the facts were irrelevant because the weapons were not proximate to

the offense for which he was convicted. However, defendant did not contest the

veracity of the facts contained in the PSR.

       During the sentencing hearing, a government witness testified that he had

seen Mr. Duque in possession of firearms on at least two occasions. 1 The witness

testified that defendant had possession of the guns in close proximity to marijuana

in houses where marijuana from the drug trafficking operation was sold or stored.

The district court adopted the PSR and sentenced Mr. Duque to sixty months

imprisonment followed by a four-year period of supervised release.

                              II. Firearm Enhancement

       Defendant first argues that the district court erred in increasing his base


       1
         The government’s brief makes reference to portions of the sentencing transcript
that neither party provided in the original record to this court. We sua sponte order the
record supplemented with the relevant portions of the transcript.

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offense level by two points pursuant to U.S.S.G. § 2D1.1(b)(1) because the

government offered no evidence showing that any guns were used or found

during, or were proximate to, the offense of conviction. We review the district

court’s interpretation of the Sentencing Guidelines de novo and its factual

findings for clear error. See United States v. Flores, 149 F.3d 1272, 1279 (10th

Cir. 1998), cert. denied, 119 S. Ct. 849 (1999). We give due deference to the

district court’s application of the Guidelines to the facts. See United States v.

Vazari, 164 F.3d 556, 568 (10th Cir. 1999); United States v. Smith, 131 F.3d

1392, 1399 (10th Cir. 1997), cert. denied, 118 S. Ct. 1109, 1321, 1543 (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, commentary, application

note 3. The government bears the initial burden of “‘proving by a preponderance

of the evidence the gun was proximate to the drug offense.’” Flores, 149 F.3d at

1280 (quoting United States v. Lang, 81 F.3d 955, 964 (10th Cir. 1996)). “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. (quoting United States v. Roederer, 11 F.3d 973,

982 (10th Cir. 1993)); see also Vaziri, 164 F.3d at 568. “Once the government


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establishes that the gun was possessed in proximity to the drugs or transaction,

the burden shifts to the defendant to ‘show that it is clearly improbable that the

weapon was related to the offense.’” Flores, 149 F.3d at 1280 (quoting United

States v. Robertson, 45 F.3d 1423, 1449 (10th Cir. 1995) (internal quotation and

citation omitted)). Furthermore, in determining whether to apply a sentence

enhancement, the district court must consider all relevant conduct. See United

States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993) (citing U.S.S.G.

§ 1B1.3). Thus, the sentencing court looks not only to the offense of conviction,

but also to all other acts “‘that were part of the same course of conduct or

common scheme or plan as the offense of conviction.’” Roederer, 11 F.3d at 982

(quoting U.S.S.G. § 1B1.3(a)(2)); see also, e.g., United States v. Hunter, -- F.3d

--, 1999 WL 227208, at *2 (11th Cir. Apr. 20, 1999) (“[A] firearm enhancement is

‘to be applied whenever a firearm is possessed during conduct relevant to the

offense of conviction’” (quoting United States v. Smith, 127 F.3d 1388, 1390

(11th Cir. 1997))); United States v. Falesbork, 5 F.3d 715, 720 (4th Cir. 1993)

(“Even when a guilty plea is entered on a single count of possession, the court

must nevertheless look to the entire relevant conduct in determining the sentence.

. . . [That conduct] includes possession of a gun while engaging in drug sales

related to, though distinct from, the crime of conviction.”); United States v.

Willard, 919 F.2d 606, 610 (9th Cir. 1990) (holding that “for purposes of the


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firearm enhancement, the [sentencing] court properly looked to all of the offense

conduct, not just the crime of conviction”).

      The government provided sufficient evidence to the district court to satisfy

its burden of showing proximity. The witness who testified at the sentencing

hearing stated that on at least two occasions he saw the defendant, at locations

where the drug trafficking operation sold or stashed marijuana, possess a gun in

the vicinity of marijuana. Moreover, the PSR references defendant’s own

admissions that he owned weapons during the period of time he was involved in

the operation. Although defendant objected to these statements on other grounds,

he never challenged their veracity. This evidence establishes proximity to the

offense conduct. That the evidence does not specifically establish a gun was

present during the particular offense of conviction is of no consequence.

      Because the government established proximity, the burden shifted to

defendant to show that it was clearly improbable that the firearms in his

possession were connected with “the same course of conduct or common scheme

or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). The defendant did

not meet this burden. Consequently, the district court did not err by increasing

defendant’s base offense level two points pursuant to U.S.S.G. § 2D1.1(b)(1).

                III. Minor or Minimal Participant Adjustment

      Mr. Duque also claims that he was a minor or minimal participant in the


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criminal enterprise, and the sentencing court therefore erred by refusing him a

downward adjustment under U.S.S.G. § 3B1.2(b). “Whether a defendant is a

minimal or minor participant is a factual question for the district court.” United

States v. Harfst, 168 F.3d 398, 401 (10th Cir. 1999). As noted above, we review

this determination for clear error. See Flores, 149 F.3d at 1279. The defendant

has the burden of showing that he is entitled to a downward adjustment under

§ 3B1.2 by a preponderance of the evidence. See Harfst, 168 F.3d at 401; Smith,

131 F.3d at 1398.

      Section 3B1.2 permits a four-point downward adjustment in a defendant’s

base offense level if his participation in the criminal enterprise was minimal, or a

two-point decrease if the participation was minor, or a three-point decrease if it

falls between minimal and minor. See U.S.S.G. § 3B1.2. The purpose of the

downward adjustment is to decrease a defendant’s base offense level when his

role in the offense “makes him substantially less culpable than the average

participant.” Id. § 3B1.2, commentary, background. In order to qualify for the

four-point minimal participant downward adjustment, the defendant must show

that he is “plainly among the least culpable of those involved in the conduct of a

group.” Id. § 3B1.2, commentary, application note 1. According to the

Guidelines, this adjustment applies infrequently. See id. § 3B1.2, commentary,

application note 2. The two-point minor participant decrease is appropriate when


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the defendant shows that he is “less culpable than most other participants, but

[his] role could not be described as minimal.” Id. § 3B1.2, commentary,

application note 3.

      Even assuming Mr. Duque could show the above with respect to the drug

trafficking operation as a whole, a doubtful proposition given that he was a

significant distributor of marijuana, that would not end the inquiry as to whether

he is entitled to a downward adjustment under § 3B1.2. For the purpose of

sentencing, the district court may consider all relevant conduct in determining the

amount of drugs for which the defendant is accountable, including all reasonably

foreseeable drug transactions made in furtherance of the jointly undertaken

criminal activity. See id. § 1B1.3; Roederer, 11 F.3d at 978. As § 1B1.3,

Application Note 2 states:

            A “jointly undertaken criminal activity” is a criminal plan,
      scheme, endeavor, or enterprise undertaken by the defendant in
      concert with others, whether or not charged as a conspiracy.

             ....

             With respect to offenses involving contraband (including
      controlled substances), the defendant is accountable for all quantities
      of contraband with which he was directly involved and, in the case of
      a jointly undertaken criminal activity, all reasonably foreseeable
      quantities of contraband that were within the scope of the criminal
      activity that he jointly undertook.

Thus, when sentencing a defendant who is a participant in a marijuana

importation and distribution ring, the district court may, even if the defendant is

                                         -8-
not convicted of conspiracy, calculate the base offense level holding the

defendant accountable not only for the drugs the defendant personally distributed,

but for all of the drug transactions undertaken by the operation that he was aware

of or could have foreseen.

      Given the size of the drug trafficking operation involved in this case, the

district court could have held the defendant accountable for considerably more

marijuana than he personally handled. Nonetheless, the district court chose to

hold defendant accountable for only that amount of marijuana that he personally

distributed. In United States v. James, 157 F.3d 1218, 1220 (10th Cir. 1998), this

court recently held that when a defendant’s base offense level was predicated

solely on the amount of drugs he personally handled, omitting the relevant

conduct of the jointly undertaken criminal activity, the district court necessarily

took into account the defendant’s minor role in the criminal enterprise. Thus,

“[a]ny further reduction would cede [defendant] an undeserved windfall.” Id. at

1220. We based our holding in James, in part, on the language of § 3B1.2,

Application Note 4, which states:

      If a defendant has received a lower offense level by virtue of being
      convicted of an offense significantly less serious than warranted by
      his actual criminal conduct, a reduction for a mitigating role under
      this section ordinarily is not warranted because such defendant is not
      substantially less culpable than a defendant whose only conduct
      involved the less serious offense.

We found the reasoning of Note 4 was applicable not only when the defendant

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was convicted of a less serious offense, but also when he received a less onerous

sentence because of his minor role in the criminal enterprise. See James, 157

F.3d at 1220. Therefore, in light of our decision in James, we hold that the

district court did not err in concluding that Mr. Duque was not entitled to a

downward adjustment as a minimal or minor participant under U.S.S.G. § 3B1.2.

                                    Conclusion

       For the reasons discussed above, we AFFIRM the sentence imposed by the

district court.

                                       ENTERED FOR THE COURT,



                                       Deanell Reece Tacha
                                       Circuit Judge




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