F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           DEC 22 2000
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                       No. 00-3122
 DANNY D. SMITH, aka Dino,                          (D.C. No. 98-CR-20034)
                                                           (D.Kan.)
           Defendant-Appellant.




                                 ORDER AND JUDGMENT       *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, 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.

       Defendant Danny D. Smith appeals the sentence imposed following his

guilty plea to possession with intent to distribute cocaine base (crack cocaine), in



       This order and judgment is not binding precedent, except under the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.
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). We affirm.

                                         I.

      Smith was charged with one count of distributing crack cocaine and two

counts of possessing with intent to distribute crack cocaine. Under the terms of

the plea agreement, the government agreed to recommend a reduction in offense

level for acceptance of responsibility, recommend sentencing at the low end of the

guidelines range, dismiss counts one and two of the indictment, and recommend

that his sentence run concurrently with a state sentence. The plea agreement

further provided that counts one and two would be included in the calculation of

the sentence as relevant conduct.

      The presentence investigation report recommended a two-level increase in

Smith’s sentence pursuant to U.S.S.G. § 2D1.1 because “a semi-automatic

handgun was in plain view of the CI when the purchase of cocaine base was

made from the defendant.” Report at 6. In addition, two firearms were found in

the residence where the drug transactions occurred. Smith objected to the two-

level increase. The district court overruled Smith’s objection to the two-level

increase and calculated his base offense level as 31. Since he had a criminal

history category of 3, the sentencing range was 135 to 168 months. The court

sentenced Smith to 151 months’ imprisonment and, over Smith’s objection,

ordered that the sentence run consecutively to the state sentence. The court


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stated it was “not inclined to run this sentence concurrently” because “this

offense was committed while Mr. Smith was on bond in the other criminal case”

and he had “a significant amount of other criminal conduct involving drugs that

was not even computed in the criminal history score or otherwise considered.”

Aplt. App. at 84-85.

       Smith challenges the two-level enhancement for possession of a firearm on

two grounds: (1) the government did not prove by a preponderance of the

evidence that he possessed the firearm; and (2) application of the two-level

enhancement violated the Supreme Court’s recent pronouncement in        Apprendi v.

New Jersey , 

(2000). He also contends the district court abused

its discretion in ordering a consecutive sentence.

                                           II.

Possession of firearm

       Under U.S.S.G. § 2D1.1, if, in the commission of a drug offense, “a

dangerous weapon (including a firearm) was possessed,” courts are required to

increase a defendant’s base offense level by two levels. “We review the district

court’s interpretation of § 2D1.1(b)(1) de novo and the court’s underlying factual

findings for clear error.”   United States v. Dickerson , 

, 1188 (10th

Cir. 1999). “‘The government bears the initial burden of proving possession by a

preponderance of the evidence.’”     United States v. Vaziri , 

, 568


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(10th Cir. 1999) (citing   United States v. Smith , 

, 1400 (10th Cir.

1997)). Once the government meets its burden, “‘[t]he enhancement is then

appropriate unless the defendant proves the exception – that it is clearly

improbable the weapon was connected with the offense.’”              

the government has not met its burden of proving

possession. The showing of possession may be satisfied by “‘showing mere

proximity to the offense.’”    

of “mere proximity” is accomplished

when the government “shows that a weapon was located near the general location

where at least part of a drug transaction occurred.”      

sentencing

hearing, defense counsel stipulated that the firearm was in proximity to the drugs

at the time of the drug transaction and that it was in plain view.         See Aplt. App.

at 76. Smith makes no showing that it was clearly improbable that the firearm

was connected with the offense. Instead, Smith argues the government did not

show that he saw or was aware of the firearm. Actual knowledge of the firearm

is not required for the enhancement to be applied.       See United States v.

Humphrey , 

, 1211 (10th Cir. 2000). To the extent Smith is arguing

the government failed to prove he personally displayed or talked about the

firearm, personal possession of the firearm is not necessary.          See Smith , 131 F.3d

at 1400.

       Smith conceded that he had permission to use the residence for drug deals.


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Under U.S.S.G. § 1B1.3(a)(1)(B), the transaction qualifies as a jointly undertaken

criminal activity. A defendant’s base offense level can be enhanced for a jointly

undertaken criminal activity on the basis of “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken criminal activity, that

occurred during the commission of the offense of conviction, in preparation for

that offense, or in the course of attempting to avoid detection or responsibility for

that offense.” U.S.S.G. § 1B1.3(a)(1)(B). The fact that Smith wore a bulletproof

vest to the residence to conduct the drug transaction indicated it was reasonably

foreseeable that a firearm would be present.



Application of Apprendi

       Smith argues that the two-level enhancement cannot withstand

constitutional scrutiny under    Apprendi because the facts concerning the

enhancement were not alleged in the indictment or proven beyond a reasonable

doubt to a jury. In effect, he argues that after   Apprendi , the “dangerous weapon”

enhancement of § 2D1.1(b)(1) is more like the element of a crime than a mere

“enhancement” and therefore must be constitutionally treated as such.

       In Apprendi , the Court restated the rule set forth in   Jones v. United States ,

, 243 n.6 (1999): “Other than the fact of a prior conviction, any fact

that increases the penalty for a crime    beyond the prescribed statutory maximum


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must be submitted to a jury, and proved beyond a reasonable 

(emphasis added). Smith concedes “the ultimate sentence was still

within the statutory range.” Aplt. Br. at 17.

       The government correctly argues Smith’s concession dooms this challenge.

See United States v. Hishaw , No. 99-6258, ___ WL ____ (10th Cir. Dec. 20,

2000) (holding that “as long as defendant’s sentence falls within the maximum

established by statute,”   Apprendi is not applicable); United States v. Angle , 

, 121 (4th Cir. 2000) (holding that “sentencing factors that support a

specific sentence within the statutorily prescribed penalty range are still properly

submitted to a judge to be found by a preponderance of the evidence”);      Talbott v.

Indiana , 

, 869-70 (7th Cir. 2000) (holding that even after   Apprendi ,

“the judge alone determines drug types and quantities when imposing sentences

short of the statutory maximum”);    United States v. Meshack , 

, 576-

77 (5th Cir. 2000) (holding that as long as a defendant’s sentence is within the

statutory sentencing range,   Apprendi does not prohibit application of a

sentencing enhancement that causes a defendant to receive a higher sentence);

United States v. Aguayo-Delgado      , 

, 933-34 (8th Cir. 2000) (same),

cert. denied ___ S. Ct. ___ (Nov. 27, 2000) .



Consecutive sentence


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       Smith contends the concurrent sentence runs afoul of the policy statement

in U.S.S.G. § 5G1.3(c), which allows a court to impose a sentence “to run

concurrently, partially concurrently, or consecutively to the prior undischarged

term of imprisonment to achieve a reasonable punishment for the instant

offense .” (Emphasis added.) He argues the sentence is not a reasonable

punishment.

       “In general, a district court has broad discretion to sentence a defendant to

a consecutive or concurrent sentence.”     United States v. Contreras , 

, 1152 (10th Cir. 2000). However, § 5G1.3 limits this discretion. We

review the district court’s order that a sentence run consecutive to an

undischarged state sentence for an abuse of discretion.    See United States v. Burt ,

, 1000 (10th Cir. 1998).

       In calculating a “reasonable” punishment, a court should consider the

factors set forth in 18 U.S.C. § 3553(a) (nature and circumstances of offense;

history and characteristics of defendant; need for sentence imposed; kinds of

sentences available and sentencing range; policy statement by Sentencing

Commission; need to avoid unwarranted sentence disparities; and need to provide

restitution to victims).   See 18 U.S.C. § 3584(b); U.S.S.G. § 5G1.3 cmt. 3. The

fact that the district court explicitly stated it was imposing a consecutive sentence

because the “offense was committed while Mr. Smith was on bond in the other


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criminal case, and that he has a significant amount of other criminal conduct

involving drugs that was not even computed in the criminal history score or

otherwise considered by the guidelines in this case,” Aplt. App. at 84-85,

indicates it considered those factors and gave thorough consideration to the

matter.

      In addition to being mindful that a defendant’s sentence is reasonable, it is

important for a court to consider the “overarching purpose of § 5G1.3 – namely,

the prevention of duplicative punishment.”       United States v. Caraballo , 

, 28-29 (1st Cir. 1999). Here, there is no duplicative punishment. Smith

committed the instant offense while he was on bond pending a trial for state

charges.

      AFFIRMED.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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