                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               MAR 30 1999
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

  UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
  v.                                                         No. 98-3047
                                                     (D.C. No. 96-10022-03-MLB)
  GUSTAVO CASIAN ZARATE,                                  (District of Kansas)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before PORFILIO, MCWILLIAMS, and BALDOCK, Circuit Judges.




       Gustavo Zarate pleaded guilty to one count of conspiracy to distribute two

kilograms of cocaine. He was sentenced to 120 months’ imprisonment which included a

two-level firearms enhancement. On appeal, he argues the enhancement was improper.

Because the government met its minimal burden of showing possession, Mr. Zarate then

was required to establish the weapon was not connected to the offense. He did not;

therefore, we affirm.

       *
         This order and judgment is not binding precedent, except under the doctrines of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.
       In January 1997, defendant Zarate and codefendants Rivera, Morales, and Guzman

were arrested for the sale of two kilograms of cocaine to undercover DEA officers. The

arrest occurred at a motel in Garden City, Kansas, and was the culmination of several

months of undercover investigations and several drug transactions between the agents and

the defendants. On January 30, the four defendants met the agents at the motel. Mr.

Morales carried in the drugs and Messrs. Zarate, Guzman, and Rivera assisted in removing

the wrapping. Defendant placed the package on a table in the room, and the agents cut it

open to verify the contents were cocaine. Messrs. Zarate, Guzman, and Morales were then

arrested in the motel room, and agents chased Mr. Rivera out the door and then arrested

him.

       After the arrests, the agents found 1,005.8 grams of cocaine on Morales. He was

also in possession of an additional 3.2 grams of cocaine, 6.5 grams of cocaine base, and a

loaded .380 caliber semi-automatic handgun. The agents discovered 994.3 grams of

cocaine on Guzman who also had an additional 0.47 grams of cocaine, 4.9 grams of

cocaine base, a chrome crack pipe, and a loaded .380 semi-automatic handgun.

       Mr. Zarate argues he should not have received the enhancement under U.S.S.G.

§ 2D1.1(b)(1) (“If a dangerous weapon (including firearm) was possessed, increase by 2

levels”) because he did not possess the firearm present in the drug trafficking; rather his

codefendants did. The government counters the enhancement was appropriate because its

proof of the firearms’ proximity to the drug offense established possession. The burden


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then shifted to Mr. Zarate to prove the firearm was not connected to the offense. Because

he did not meet the burden, the government urges us to affirm the district court’s decision

to overrule defendant’s objection. We review de novo the district court’s application of

the sentencing guidelines and review for clear error the district court’s factual findings.

See United States v. Morales, 108 F.3d 1213, 1225 (10th Cir. 1997).

       We have held the enhancement for firearm possession during a drug offense should

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

connected with the offense. See United States v. Smith, 131 F.3d 1392, 1400 (10th Cir.

1997) (citing U.S.S.G. § 2D1.1, comment n.3). The government bears the initial burden of

proving possession by a preponderance of the evidence, and the burden may be satisfied by

showing mere proximity to the offense. See id.; United States v. Roederer, 11 F.3d 973,

982-83 (10th Cir. 1993).

       Mr. Zarate does not contest the handguns and cocaine were found together and in

United States v. Roberts, 980 F.2d 645, 647 (10th Cir. 1992), we held a trial judge may

“[e]nhance a drug defendant’s sentence for mere possession of a dangerous weapon even

if there is no evidence other than proximity to suggest the gun was connected to the

offense.” Therefore, in Mr. Zarate’s case, “this proximity to the offense is enough to

establish the appropriateness of the enhancement.” Smith, 131 F.3d at 1400.

       As district court ruled, once the government showed the firearm to be proximate to

the offense, the burden shifted to Mr. Zarate to prove it clearly improbable the weapon


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was connected to the offense. See id. He made no such showing, instead, claiming the

enhancement was inappropriate because his co-defendants possessed the firearms, and he

did not. In Smith, the defendant similarly tried to deflect his burden of proving it clearly

improbable the weapon was connected with the offense by claiming he did not possess any

of the weapons which all belonged to his co-defendants. We rejected that argument

because “personal possession of a firearm … is not necessary,” and the sentencing court

may “attribute to a defendant weapons possessed by his codefendants if the possession of

the weapons was known to the defendant or reasonably foreseeable to him.” Id.

          In Smith, the defendant was arrested at a methamphetamine house. He was

convicted of distribution of methamphetamine and his sentence was enhanced under

U.S.S.G. § 2D1.1(b)(1). Testimonial evidence revealed the defendant’s involvement in

codefendants’ drug operation, and that he lived and worked at the house where police

located the firearms, drugs and paraphernalia. The firearms seized included a loaded

semiautomatic firearm found in the garage near the entrance to the drug lab and other

firearms found in the house. The defendant’s fingerprints were not found on any firearm

and none was registered to him. See id. We held the district court did not make clearly

erroneous findings the defendant reasonably foresaw his codefendants’ possession of

firearms and the firearms were used to protect the drugs and the methamphetamine lab.

See id.




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       Similarly, in Mr. Zarate’s case, he was arrested at the scene of the drug offense

where the firearms were also found. Undercover agents who had been dealing with the

defendant before his arrest testified to possession. In the agents’ opinion, Mr. Zarate

organized the January 30 cocaine transaction, negotiated with others to consummate the

deal, and “needed the assistance of others as far as counter surveillance and security and

possibly assisting him in providing that quantity [of cocaine].” An investigative report

indicated that prior to meeting at the motel, Mr. Zarate met with Messrs. Guzman and

Morales at the El Palanque Club, and the government states “while it is not known what

exactly took place at this meeting … [i]t is reasonable to assume that Zarate had

discussions with Guzman and Morales concerning their ‘roles’ in the transactions and the

fact that they had weapons.”

       Under our case law this evidence suffices to support the district court’s finding of

reasonable foreseeability. See id. (citing United States v. McFarlane, 933 F.2d 898, 899

(10th Cir. 1991) (Provisions of U.S.S.G. § 2D1.1(b)(1) and 1B1.3(a)(1)1 “together …

permit sentencing courts to attribute to a defendant weapons possessed by his

codefendants if the possession of weapons was known to the defendant or reasonably

foreseeable by him”); see also United States v. Garza, 118 F.3d 278, 285-86 (5th Cir.

1997) (“[A] district court may ordinarily infer that a defendant should have foreseen a



        U.S.S.G. § 1B1.3(a)(1) directs courts applying a specific offense characteristic
        1

such as 2D1.1(b)(1) to consider “all acts and omissions committed or aided and abetted
by the defendant … that occurred during the commission of the offense.”

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codefendant’s possession of a dangerous weapon, such as a firearm, if the government

demonstrates that another participant knowingly possessed a weapon while he and the

defendant committed the offense.”)

       The government established possession by both proximity and reasonable

foreseeability. As the district court found, Mr. Zarate did not then go forward and meet

his burden of showing the weapon was unconnected to the offense. Therefore, the district

court did not clearly err in enhancing the sentence. The judgment of the district court is

AFFIRMED.




                                          ENTERED FOR THE COURT

                                          John C. Porfilio
                                          Circuit Judge




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