F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         OCT 10 2003
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,            Nos. 03-8000, 03-8008, 03-8011
          v.                                           (D. Wyoming)
 JOSE MARTINEZ, DANIEL                            (D.C. No. 02-CR-039-J)
 RICHARD AROS, and UMBERTO
 JURADO-BARAJAS, a/k/a Felix
 Francisco Garcia,

               Defendants-Appellants.




                           ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, Circuit Judges.



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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case therefore is ordered submitted

without oral argument.



      *
        This order and judgment is not binding precedent, except under the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.
      This appeal arises from the joint trial of the three defendants, each of whom

were named in a superseding indictment. We have consolidated their appeals for

the purpose of this disposition. On May 17, 2002, the defendants were charged

with one count of conspiracy to traffic in methamphetamine in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (count I).



      1. Mr. Aros and Mr. Martinez

      On October 7, 2002, a jury trial commenced as to count I for Daniel Aros

and Jose Martinez. The trial also involved Mr. Jurado-Barajas, and several co-

defendants who are not before us in this appeal.

      On October 15, 2002, the jury returned guilty verdicts as to Mr. Aros and

Mr. Martinez on count I. On December 23, 2002, the district court sentenced Mr.

Aros to 188 months’ imprisonment, five years of supervised release, and a special

assessment of $100. Mr. Martinez was likewise sentenced to 188 months’

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

      2. Mr. Jurado-Barajas

      Mr. Jurado-Barajas was also charged with possession of methamphetamine

with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)((A),

and 18 U.S.C. § 2 (aiding and abetting) (count II), and with possession of a

firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. §


                                         -2-
924(c)(1)(A)(i) (count IV). 1 Mr. Jurado-Barajas pleaded guilty to counts I and II

of the superseding indictment and was found guilty at trial of count IV. Mr.

Jurado-Barajas was sentenced to 188 months’ imprisonment on counts I and II, to

be served concurrently, and to a consecutive 60 months imprisonment, a $2,000

fine, and five years of supervised release on count IV.

      On appeal, the defendants raise the following issues:

Mr. Aros:

      1.    the evidence presented at trial was insufficient to connect him

            to the charged conspiracy, and the government failed to prove

            that he was dependent upon his co-conspirators for his supply

            of methamphetamine;

      2.    the district court erred in failing to sever his case from his co-

            conspirators;

Mr. Aros and Mr. Martinez:

      3.    the district court erred when it admitted various out-of-court

            statements into evidence under Fed. R. Evid. 801(d)(2)(E)

            because they were not made in furtherance of the conspiracy;




      1
         The superseding indictment dated May 17, 2002, lists only three counts,
yet the parties indicate that a fourth count was charged, and later dismissed,
against Mr. Jurado-Barajas. Aplts’ App. vol. I, att.1.

                                         -3-
      4.     the district court erred when it instructed the jury regarding the

             amount of methamphetamine involved in the conspiracy as a

             whole;

      5.     the district court’s factual findings regarding the drug amounts

             “reasonably foreseeable” to each defendant for sentencing

             purposes were “clearly erroneous;”

Mr. Martinez:

      6.     the district court erred when it enhanced his sentence for

             possession of a firearm in connection with a drug offense;

Mr. Jurado-Barajas:

      7.     the district court clearly erred when it found that he was a

             manager/supervisor of a criminal activity involving five or

             more participants within the meaning of USSG § 3B1.1(b).

We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the convictions and

sentences of each defendant.



                                 I. BACKGROUND

      We recite the relevant facts in the light most favorable to the government

because the jury convicted the defendants. See United States v. Duran, 

, 1326 n.1 (10th Cir. 1998). From the early part of 2001 until his arrest in



                                         -4-
early February 2002, Mr. Jurado-Barajas was involved in a substantial

methamphetamine trafficking organization centered in and around Gillette,

Wyoming. During most of this period, Mr. Jurado-Barajas resided in a trailer

house located in the Nepstad Trailer Park in Gillette, although he sometimes used

a separate apartment as well.

      When authorities executed search warrants on these residences, they seized

approximately five pounds of methamphetamine, $13,000 in cash, weighing

scales, packaging materials, drug ledgers, and a firearm from his trailer, and

approximately three pounds of methamphetamine, more than $62,000 in cash, and

weighing scales from his apartment. The methamphetamine was contained in

vacuum-type packaging.

      Mr. Jurado-Barajas sold methamphetamine to various individuals including

Nadine Decker, Mrs. Decker’s husband, and Stacey Larson. Ms. Larson testified

that the methamphetamine sold by Mr. Jurado-Barajas and later by her, came from

a source in California named “Baltazar.” Baltazar would give the

methamphetamine to co-defendant Hector Lopez and to Mr. Jurado-Barajas while

the three met in Mr. Jurado-Barajas’ trailer in Gillette, Wyoming.

      Numerous individuals were involved with the conspiracy. Kirk Buckman,

Mr. Aros’ roommate, testified he received methamphetamine from Mr. Aros on

two occasions. Kenneth Powers testified that he met Mr. Aros in the summer of



                                         -5-
2001 and purchased methamphetamine from him three to four times a week.

Jessica Friesen testified that, during the winter of 2001, she began using and

selling methamphetamine that she had received from Mr. Aros. She also met Mr.

Martinez and saw him with Mr. Aros frequently. She testified that she declined

Mr. Martinez’ requests for her to sell drugs for him, citing her friendship with

Mr. Aros.

      Jennifer Dobkins testified that she sold methamphetamine received from

Mr. Aros a couple of times. She testified that Mr. Aros told her he hoped to drive

Mr. Martinez out of business by lowering his prices for methamphetamine.

      Upon his arrest, Mr. Aros told authorities that he had distributed

approximately fifteen pounds of methamphetamine in the Gillette area, and at trial

he admitted to supplying Mr. Powers, Ms. Dobkins, and Ms. Friesen with

methamphetamine. He at first denied that Mr. Martinez was his source but on

cross-examination, Mr. Aros admitted Mr. Martinez was his source and that he

was trying to put Mr. Martinez out of business.



                                 II. DISCUSSION

A. Sufficiency of the Evidence as to Mr. Aros’ Involvement in the
Conspiracy

      1. Standard of Review




                                         -6-
      In considering a challenge to the sufficiency of the evidence, “[w]e review

the entire record in the light most favorable to the government to determine

whether the evidence, both direct and circumstantial, together with the reasonable

inferences to be drawn therefrom, is such that a reasonable jury could find the

defendant guilty beyond a reasonable doubt.” United States v. Angulo-Lopez, 

, 1510-11 (10th Cir. 1993) (quoting United States v. Fox, 

, 1513 (10th Cir. 1990)); accord United States v. Coleman, 

,

1502 (10th Cir. 1993); United States v. Davis, 

, 1017 (10th Cir. 1993).

Furthermore, we must “accept the jury's resolution of conflicting evidence and its

assessment of the credibility of witnesses.” 

.

      In a conspiracy prosecution, the government must prove: (1) “two or more

persons agreed to violate the law,” (2) “the defendant knew at least the essential

objectives of the conspiracy,” (3) “the defendant knowingly and voluntarily

became a part of the conspiracy,” and (4) “the co-conspirators were

interdependent.” 

. The government may prove all of these

elements through direct or circumstantial evidence. 

; see

also United States v. Brown, 

, 708 (10th Cir. 1999) (“Circumstantial

evidence is often the strongest evidence of conspiracy.”).

      To establish the element of agreement, the prosecution must show “‘a unity

of purpose or a common design and understanding’ with co-conspirators to



                                         -7-
accomplish one or more of the objects of the conspiracy.” 

(quoting United States v. Kendall, 

, 1431 (10th Cir. 1985)).

An agreement may be inferred from “‘frequent contacts’” among the co-

conspirators and “‘their joint appearances at transactions and negotiations.’”

United States v. Evans, 

, 669 (10th Cir. 1992) (quoting United States

v. Esparsen, 

, 1472 (10th Cir. 1991)). However, evidence of

association, casual transactions, or a buyer-seller relationship between a

defendant and other co-conspirators is insufficient. 

of interdependence, a highly fact-sensitive issue, may be

proven by showing that each co-conspirator is dependent upon “‘the operation of

each link in the chain to achieve the common goal’” and “‘intended to act

together for their shared mutual benefit.’” 

(quoting

, 671). Therefore, “a single conspiracy does not exist

solely because many individuals deal with a common central player; they must be

interconnected in some way.” 

. Moreover, “[t]he

defendant’s participation in or connection to the conspiracy need only be slight,

so long as sufficient evidence exists to establish the defendant’s participation

beyond a reasonable doubt.” United States v. Johnston, 

, 789 (10th

Cir. 1998).




                                         -8-
      2. Analysis

      Mr. Aros claims the evidence is insufficient to prove the essential element

of interdependence. He claims the only evidence presented was packaging

material seized from his apartment and hearsay statements from uncharged co-

conspirators.

      The evidence at trial indicated that Mr. Aros’ participation in the

conspiracy was dependent upon Mr. Martinez. First, Mr. Aros’ roommate, Kirk

Buckman, testified that during the summer of 2001, Mr. Aros had more cash on

him than usual despite having lost his job. Mr. Martinez soon began visiting the

apartment approximately every other day. After an apparent dispute, Mr.

Martinez did not return often to the apartment. Mr. Buckman stated that he used

and obtained methamphetamine from Mr. Aros, and that he distributed

methamphetamine from that he received from Mr. Aros on two occasions.

      Jessica Friesen, who entered a guilty plea in exchange for immunity from

prosecution, testified that she bought methamphetamine from Mr. Aros

approximately every day from October/November 2001 until the end of January

2002, and that in the aggregate she purchased 2.5 to 3 pounds of

methamphetamine from him.

      Ms. Friesen also testified that she saw Mr. Aros and Mr. Martinez together

about once a week. She testified that Mr. Martinez asked her twice if she wanted

to sell drugs for him, and each time she said no, because she preferred to go

                                         -9-
“through [Mr. Aros].” Aplt’s App. vol. IV, at 320. Ms. Friesen also testified that

Mr. Aros was going “through” Mr. Martinez, meaning he was obtaining

methamphetamine from Mr. Martinez. She also testified that Mr. Aros stated he

was trying to get better prices from somebody else, and that Mr. Martinez was

“ripping him off.” 

      Jennifer Dobkins testified she met Mr. Aros in December 2001. She stated

she sold methamphetamine, which she received from Mr. Aros, a couple of times.

According to her testimony, Mr. Aros retrieved the drugs from a file cabinet next

to his bed. She also testified that Mr. Aros had told her he was trying to take Mr.

Martinez out of business by lowering his prices for methamphetamine.

      Stacey Larson, who pleaded guilty to conspiracy to possess with intent to

deliver and to deliver methamphetamine, testified that she had been receiving and

selling methamphetamine for Mr. Jurado-Barajas. She testified regarding several

transactions in which she was contacted by various individuals in which she

delivered methamphetamine from a large bag given to her by Mr. Lopez. She

received cash in return and kept track of the transactions on a ledger.

      While Mr. Jurado-Barajas was in Mexico, she updated the ledgers and, at

Mr. Jurado-Barajas’ request, attempted to collect money from various persons,

including Mr. Martinez who “owed money for methamphetamine transactions.”

at 172. Ms. Larson testified that she received a call from Mr.

Martinez asking to meet. During their meeting, he asked to purchase

                                         -10-
methamphetamine, and she delivered two ounces to him after he paid her for the

contraband. She also testified that she tried to collect the $6,000 outstanding debt

owed to Mr. Jurado-Barajas from Mr. Martinez without success. See 

and Ex. 401.

      Kenneth Powers, who pleaded guilty to conspiracy to deliver

methamphetamine, testified that he purchased methamphetamine “about every

day” from Mr. Aros. 

at 332. Mr. Powers testified that he began to

resell the contraband, and over the course of ten months, he bought approximately

two pounds of methamphetamine from Mr. Aros. Mr. Powers also testified that

when he attempted to make a purchase during February 2002, Mr. Aros explained

that his connection “got busted.” 

The government notes that Mr.

Jurado-Barajas was arrested on February 6, 2002. Mr. Powers testified that he

bought approximately three pounds from Mr. Aros overall, and that Mr. Aros was

his only source of methamphetamine.

      Upon his arrest, Mr. Aros told authorities that he had distributed

approximately fifteen pounds of methamphetamine in the Gillette area, and at trial

that these fifteen pounds came from Mr. Martinez, and that he made $2,000 a

week from selling the drug. Mr. Aros admitted to selling methamphetamine to at

least three people. See Aplt’s App. vol. 5, at 585-86. Authorities seized

packaging with a white residue from Mr. Aros’ bedroom.



                                        -11-
      At trial, Mr. Aros testified that he knew Mr. Martinez and Mr. Lopez and

that Mr. Aros and Mr. Martinez had occasionally smoked methamphetamine

together. He admitted to supplying Mr. Powers, Ms. Dobkins, and Ms. Friesen

with methamphetamine, but denied that Mr. Martinez was his source. He testified

his source was Facunda Navarette in Laramie, and that Mr. Navarette supplied

him with two to three pounds of methamphetamine. On cross-examination, Mr.

Aros admitted Mr. Martinez was his source and that he was trying to put Mr.

Martinez out of business. He admitted what he had earlier told the agents, but

indicated that he exaggerated the amounts in hopes of being released by the

authorities.

        “The defendant’s participation in or connection to the conspiracy need

only be slight, so long as sufficient evidence exists to establish the defendant’s

participation beyond a reasonable doubt.” United States v. Johnston, 

, 789 (10th Cir. 1998). Upon review of the record, we conclude that the

evidence from the above witnesses, and from Mr. Aros himself, presented the jury

with sufficient evidence to support its verdict that Mr. Aros was dependent upon

“the operation of each link in the chain to achieve the common goal” and

“intended to act together for their shared mutual benefit.” 

(internal quotation marks omitted).




                                         -12-
      B. Improper Joinder

      Mr. Aros next contends that he was prejudiced by improper joinder He

also maintains that, although he did not move to sever either before or during his

trial, that we should review de novo the court’s refusal to sever sua sponte.

Ordinarily, we would review the denial of a motion to sever for an abuse of

discretion, United States v. Eads, 

, 1209 (10th Cir. 1999), but here

we review for plain error. United States v. Torres, 

, 1141 (10th Cir.

1995). In order to show plain error in this context, Mr. Aros must demonstrate

that he was so “obvious[ly]” “and substantial[ly]” prejudiced as a result of his

joint trial that the district court should have granted a severance “sua sponte.”

United States v. Iiland, 

, 1269 (10th Cir. 2001).

      As outlined above, there was ample evidence to support the jury’s findings

that Mr. Aros was involved in drug transactions with both Mr. Martinez and with

the other charged co-conspirators. Because the evidence necessarily overlapped

with the evidence against his co-defendants, joinder was proper. See United

States v. Killip, 

, 1547 (10th Cir. 1987) (“Joinder is clearly proper

under Fed. R. Crim. P. 8(b), because the Government alleged that [the defendant]

had ‘participated in the same . . . series of acts or transactions’ as the other

defendants.”) (quoting Fed. R. Crim. P. 8(b)). There was no plain error here.




                                          -13-
       C. Admission of the Co-conspirator Statements

       Mr. Aros and Mr. Martinez both challenge the district court’s admission

into evidence various statements by co-conspirators. Under Federal Rule of

Evidence 801(d)(2)(E), co-conspirator statements are not considered hearsay and

are thus properly admitted if the district court finds, by a preponderance of the

evidence, that (i) “a conspiracy existed,” (ii) “both the declarant and the

defendant against whom the declaration is offered were members of the

conspiracy,” and (iii) the statement “was made in the course of and in furtherance

of the conspiracy.” United States v. Eads, 

, 1210 (10th Cir. 1999)

(internal quotation marks omitted).

       Mr. Aros and Mr. Martinez appear to challenge each element. The

challenged testimony included statements from Ms. Dobkins that Mr. Aros told

her he was trying to run co-defendant Mr. Martinez, out of business “by lowering

[Aros’] prices of methamphetamines.” Aplt’s App. vol. IV, at 387. Also

challenged were Ms. Friesen’s statements that Mr. Aros’ source was Mr. Martinez

and that Mr. Aros was considering going to someone other than Mr. Martinez to

get “better prices.” 

In addition, Mr. Aros challenges the statement by

Mr. Powers that Mr. Aros had told him that his connection “got busted.” 

       Mr. Aros states that the testimony only suggested that Mr. Aros and Mr.

Martinez were at some point competitors, but the statements in no way furthered

                                         -14-
the conspiracy. Prior to the admission of the disputed evidence, the district court

held a hearing, outside the presence of the jury, and found that there was

sufficient evidence of a conspiracy between Mr. Aros and Mr. Martinez and that

the challenged statements were made in furtherance of this conspiracy. As

discussed above, the jury found beyond a reasonable doubt that Mr. Aros and Mr.

Martinez were participants in the conspiracy. The evidence at trial was sufficient

to sustain this verdict. Having reviewed the entire record, we hold that the

district court’s factual findings in this regard were not clearly erroneous and that

it did not abuse its discretion in admitting the challenged statements under

Federal Rule of Evidence 801(d)(2)(E).

      Mr. Martinez also asserts that the admission of these statements violated his

Sixth Amendment right to confront witnesses against him by denying him the

ability to confront the witness making the statement. Aplt’s Br. at 9. Because

we hold that the evidence in this case meets the requirements for admission under

Rule 801(d)(2)(E), it also satisfies the requirements of the Confrontation Clause.

See United States v. Molina, 

, 603 (10th Cir. 1996) (recognizing that

“the requirements for admission of evidence under Federal Rule of Evidence

801(d)(2)(E) are identical to the requirements of the Confrontation Clause, so if

the evidence meets the requirements of Rule 801(d)(2)(E), the evidence is

constitutionally admissible”).



                                         -15-
      D. Challenge to Instruction 32

      Mr. Martinez and Mr. Aros next challenge that Instruction 32 violated their

right to an individual determination of the evidence regarding drug amounts

reasonable foreseeable to them. 2 “We review de novo a timely challenge to a jury


      2
         Instruction 32 provided in part as follows:
        If you find the defendants guilty of conspiracy to distribute and possession
with the intent to distribute methamphetamine, as charged in Count One of the
Superseding Indictment, then you must also determine the amount of
methamphetamine involved in the conspiracy. The substantive charge of
conspiracy requires the government to prove beyond a reasonable doubt that the
conspiracy involved only a measurable amount of methamphetamine. When, as in
this case, an indictment alleges the conspiracy involved more than a measurable
amount of methamphetamine, the government is required to prove an amount
beyond a reasonable doubt. You do not have to find the exact amount of
methamphetamine involved. The government is required to prove beyond a
reasonable doubt that the conspiracy involved the distribution or possession with
the intent to distribute: (A) 500 grams or more of methamphetamine; or (B) at
least 50 grams but less than 500 grams of methamphetamine; or (C) at least a
measurable amount but less than 50 grams of methamphetamine. On the verdict
form you will be asked to mark which of these amounts you find has been proved
beyond a reasonable doubt. Your finding must be unanimous.
       ....
       Methamphetamine distributed or possessed by other members of the
conspiracy must be reasonably foreseen as a necessary or natural consequence of
the agreement. This does not require proof that each co-conspirator specifically
agreed or knew that an actual amount of methamphetamine would be distributed
or possessed by all members of the conspiracy. But, the government must prove
that the amount of methamphetamine distributed or possessed by other members
of the conspiracy was reasonably foreseeable to a defendant. No defendant is
responsible for the acts of others going beyond the reasonably foreseeable scope
of the conspiracy. If, however, you find that the government has proved beyond a
reasonable doubt a defendant could have reasonably foreseen the
methamphetamine distributed or possessed by other members of the conspiracy,
you are instructed to add those amounts to the amount of methamphetamine you
find, beyond a reasonable doubt, the defendant personally distributed or
                                                                        (continued...)

                                         -16-
instruction to determine whether, considering the instructions as a whole, the jury

was misled.” United States v. Guidry, 

, 1156 (10th Cir. 1999)

(internal citations omitted). We reverse only when we “have substantial doubt that

the jury was fairly guided.” 

omitted).

      We agree with the Government’s argument that Instruction 32 was given to

satisfy Apprendi v. New Jersey, 

(2000), and did not contravene that

case as Mr. Aros contends. The jury was instructed to make specific findings

regarding the amount of drugs attributable to the conspiracy. But the instruction

also provided that the government must prove that the amount of

methamphetamine distributed or possessed by the conspiracy was an amount that

was reasonably foreseeable to the individual defendant. In addition, any alleged

Apprendi errors did not affect the defendants’ substantial rights: the maximum

sentence either defendant could have received is twenty years (240 months), see

21 U.S.C. § 841(b)(1)C), and sentences falling within the twenty-year maximum

sentence do not require an Apprendi determination as to drug quantity. See

United States v. Wilson, 

, 1215 n.4 (“Apprendi is not violated if a

defendant’s sentence falls within the twenty-year maximum sentence of 21 U.S.C.



      2
       (...continued)
possessed.

Aplt’s App. vol. I, doc. 194, Instr. 32 (emphasis added).


                                         -17-
§ 841(b)(1)(C)” because the jury “need only determine specific quantity if it leads

to sentences beyond the maximum for mere possession.”).



      E. Relevant Conduct Determination as to Each Defendant

      Mr. Aros and Mr. Martinez each challenge the district court’s calculation of

drug quantity at sentencing. At sentencing, “[t]he government has the burden of

establishing by a preponderance of the evidence the quantity of drugs for which a

defendant is responsible.” United States v. Green, 

, 836-37 (10th

Cir. 1999). We will uphold the district court’s calculation of drug quantity unless

that calculation is clearly erroneous. 

      The Sentencing Guidelines provide that a court may consider relevant

information without regard to its admissibility under the rules of evidence so long

as the information has “sufficient indicia of reliability to support its probable

accuracy.” USSG. § 6A1.3; see also United States v. Fennell, 

, 813

(10th Cir. 1995) (stating that “reliable hearsay may be used in the determination

of a sentence”). “When the actual drugs underlying a drug quantity determination

are not seized, the trial court may rely upon an estimate to establish the

defendant’s guideline offense level, so long as the information relied upon has

some basis of support in the facts of the particular case, and bears sufficient

indicia of reliability.” United States v. Ruiz-Castro, 

, 1534 (10th

Cir. 1996) (internal quotation marks omitted). Thus, if the ledgers introduced

                                         -18-
into evidence and the testimony at trial possess sufficient indicia of reliability, the

district court properly based its estimate of relevant drug quantity on those

sources.



             1. Mr. Aros

      Based upon the PSR’s relevant conduct determination of at least 5

kilograms but less than 15 kilograms of methamphetamine, Mr. Aros’ guideline

level was 36. He had a criminal history category of I, which set his guideline

range for imprisonment at 188-235 months. The district court sentenced Mr. Aros

to 188 months’ imprisonment, five years of supervised release, and a special

assessment of $100.

      Mr. Aros contends that at most the government has shown by a

preponderance of the evidence that he possessed and distributed 2.7 kilograms of

methamphetamine, which would reduce his base level by two points. He also

disputes the district court’s adoption of the PSR without further proof of the

quantities alleged therein.

      The district court heard and considered evidence when it determined

relevant conduct. Mr. Aros’ own testimony indicated that: (1) he told law

enforcement agents that he had distributed 15 pounds of methamphetamine; (2)

that Mr. Martinez was his source; and (3) that he was indeed guilty of conspiracy,

just not of this conspiracy. See Rec. vol. V, at 599-602; 628. Clearly the district

                                          -19-
court did not simply adopt the presentence report as its only finding. See United

States v. Yarnell, 

, 1137 (10th Cir. 1997). The district court’s

determination of relevant conduct was not in error.



             2. Mr. Martinez

       Mr. Martinez contends that the district court clearly erred when it found

relevant conduct to support a guideline level of 34. He maintains that the only

evidence produced to show the quantity were two drug ledgers that indicate that

he owed Mr. Jurado-Barajas the sum of $6,000 for between six and twelve ounces

of the drug. See Rec. vol. X, at 84. That quantity would support a sentencing

range of 78-97 months. The district court sentenced Mr. Martinez to 188 months’

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

      The district court carefully considered the evidence before it. The PSR

determined Mr. Martinez’ relevant conduct involved more than 5 kilograms but

less than 15 kilograms of methamphetamine. Mr. Martinez received a two-level

firearm enhancement that raised his guideline level to 38, and with a criminal

history category of I, his sentencing range was 235-293 months.

      The district court did not adopt the PSR, but determined Mr. Martinez’

relevant conduct involved more than 1.5 kilograms. It first considered a drug

ledger from Mr. Jurado-Barajas’ trailer that referred to Mr. Martinez. Mr.

Martinez’ inclusion on the ledger tied him to the amount seized from the trailer,

                                        -20-
which was approximately 1,721.72 grams. The court also concluded that the

evidence at trial proved 400 grams. We hold that the district court’s finding that

Mr. Martinez’ relevant conduct involved more than 1.5 kilograms was appropriate

and was not clear error.



      F. Enhancement for Possession of a Firearm under USSG §
      2D1.1(b)(1)

      Mr. Martinez challenges the court’s finding that there was a temporal and

spatial relationship between the weapon, the drug trafficking activity, and

himself, to support a two-level enhancement of his sentence. We review factual

findings under § 2D1.1(b)(1) for clear error, giving due deference to the

application of the guidelines to the facts. United States v. Pompey, 

, 1180 (10th Cir. 2001). “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.” USSG § 2D1.1(b)(1), cmt., n.3.

      “The government bears the initial burden of proving possession by a

preponderance of the evidence.” 

. This burden may be

satisfied by showing that there is a temporal and spatial relationship between the

weapon, the drug trafficking activity, and the defendant. 

government has met its burden, the defendant must show “that it is clearly

improbable the weapon was connected with the offense.” 

of §


                                        -21-
2D1.1(b)(1) is whether [defendant] possessed a firearm in connection with the

offense to which he pleaded guilty.” United States v. Dickerson, 

,

1188 (10th Cir. 1999).

      Mr. Martinez contends that there is no evidence that any drug activity took

place in his apartment where the unloaded Colt .803 semiautomatic pistol was

recovered from the top drawer of a dresser from his bedroom. The government

recovered no drugs, cash, or drug paraphernalia from Mr. Martinez’ apartment.

There is no evidence that the gun was loaded or that any ammunition was seized.

      The government points to testimony regarding drug use in the apartment,

and that Mr. Martinez asked Ms. Friesen to sell drugs for him while she was in

the apartment as evidence of temporal and spatial proximity to drug trafficking.

The government also relied upon the presence of a foodsaver sealer in the

apartment, and a plastic baggie that had Mr. Martinez’ fingerprints on it, as

evidence of drug packaging material.

      In this case, the government had only to show the Colt .803 was possessed

during, or was discovered in a place where the conspiracy was carried out or

furthered. Indeed, although there was no evidence to show Mr. Martinez carried,

brandished, loaned, accessed, or held the weapon during any drug transaction or

that the weapon was present or nearby, the uncontroverted evidence that he

possessed a dangerous weapon, USSG § 2D1.1(b)(1), during the course of the

conspiracy, overrides. The district court did not err when it determined that he

                                        -22-
possessed it in a location where some of the activities of the drug conspiracy

occurred.

      The district court also noted that as an illegal immigrant, Mr. Martinez

should not have had a gun. Aplt’s App. vol. X, at 103. “The only conceivable

reason would be in connection with the activity that was taking place.” 

court concluded that Mr Martinez did not meet “the threshold to establish

that it’s clearly improbable that the gun had nothing to do with the controlled

substance.” 

that the district court’s application of USSG §

2D1.1(b)(1) was not clearly erroneous.



      G. Mr. Jurado-Barajas’ Challenge to USSG § 3B1.1(b) Enhancement
for His Role as Manager/Supervisor


      Mr. Jurado-Barajas raised only one issue on appeal: whether the district

court erred in finding that he was a manager/supervisor of a criminal activity

involving five or more participants within the meaning of USSG § 3B1.1(b).

Under the Sentencing Guidelines, a district court may impose a three-level

increase in a defendant’s offense level where the criminal activity involved five

or more participants and the defendant played a managerial or supervisory role.

USSG § 3B1.1(b). We review the district court’s determination that a defendant

was a manager or supervisor of criminal activity for clear error. United States v.

VanMeter, 

, 1166 (10th Cir. 2002).

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      We conclude from a review of the record that the district court properly

found that Mr. Jurado-Barajas met the requirements for a three-level increase.

The government showed by a preponderance of the evidence that there were at

least five participants in the drug dealing. Based on the fact that it was Mr.

Jurado-Barajas’ trailer and nearby apartment that were the center of this activity

and that Mr. Jurado-Barajas planned much of the activity, the district court did

not commit clear error in finding that he was a supervisor or manager of the

operation.



                                 III. CONCLUSION

      Accordingly, we AFFIRM the convictions and sentences of each defendant



                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge




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