* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 8/9/96 FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DANIEL ADAM WARD,

Defendant-Appellant. No. 95-6050 (D.C. No. CR-94-136-C) (W.D. Okla.)

ORDER AND JUDGMENT *
Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.2

Defendant Daniel Ward was convicted by a jury on mu ltiple drug trafficking counts and was sentenced to 292 months in prison. He appeals his sentence contending: 1) that the court incorrectly enhanced his sentence for possession of a firearm; 2) that the court incorrec tly based his sentence on Dmethamphetamine rather than L-methamphetamine; and 3) that the court used an incorrect drug quantity when it calculated his base offense level at sentencing. For the reasons that follow, we affirm.

I. Sentence Enhancement for Possession of a Firearm Mr. Ward first argues that the district court impro perly enhanced his sentence pursuant to U.S.S.G. § 2D1.1(b)(1) for pos session of a firearm. Under § 2D1.1(b)(1), the government bears the initial bur den of establishing the temporal and spatial proximity of the firearm to th e defendant and the drugtrafficking activity. United States v. Roederer , 11 F.3d 973, 982 (10th Cir. 1993). This may be done by presenting evidence that the fi rearm was in the same general location “‘where drugs or drug paraphernalia are st ored or where part of the transaction occurred.’” Id. (citation omitted). Once the government meets th is burden, the burden shifts to the defendant to show that it is “clearly improbable” that the firearm was related to the drug transactio n. United States v. Contreras , 59 F.3d 1038, 1040 (10th Cir. 1995).3

Mr. Ward attacks both the physical and temporal pro ximity of the firearms found in his home to drug activity. On the day Mr. Ward’s house was searched, the following items were found: digital scales, pa gers, packaging materials, a .22 caliber Llama semi-automatic pistol and a .22 calib er Iver Johnson semiautomatic pistol. The drug paraphernalia contained methamphetamine residue. Furthermore, the evidence at trial indicated that M r. Ward had engaged in drug trafficking activity from his home by telephone app roximately two weeks before his residence was searched. Testimony also establi shed that at least three months before the search, drugs were weighed and paid for in Mr. Ward’s home. We believe this evidence is sufficient to link the fir earm possession both temporally and spatially with drug-trafficking activity. Mr. Ward attacks this conclusion by arguing that § 2D1.1(b)(1) only applies to possession of drugs, not possession of drug paraphernalia. This argument is erroneous. Possession of drug paraphernalia is a s ufficient indicator of drug activity for purposes of § 2D1.1(b)(1). See Roederer , 11 F.3d at 982. Mr. Ward next argues that physical proximity was not proven because the firearms were found in a bedroom and the drug paraphernalia was f ound in a shed outside the house. He ignores, however, the fact that testimony established that drug transactions occurred in the house and that other d rug paraphernalia was found inside the house. Our cases clearly indicate that this evidence is sufficient to4

establish physical proximity. See, e.g. , Contreras , 59 F.3d at 1039-40 (rifle found under couch; drugs found in garage); United States v. Chatman , 994 F.2d 1510, 1517 (10th Cir.) (gun found in bedroom; drug transa ctions occurred in apartment), cert. denied , 114 S. Ct. 230 (1993); United States v. Roberts , 980 F.2d 645, 647 (10th Cir. 1992) (guns found in kitchen and bedroom ; drug paraphernalia and drugs found in residence). Mr. Ward fails to prese nt sufficient evidence that a relationship between the firearms and the drug traf ficking activity was clearly improbable. Finally, Mr. Ward argues that the district court may have enhanced his sentence based not on the guns found in his home, b ut rather on the possession of guns by other members of the conspiracy. Contrary to that argument, however, the district court clearly based its holding on the guns and drug paraphernalia found in Mr. Ward’s house and shed, and his involve ment in drug transactions at his residence. Ward Supp. R., Vol. I at 33.

II. Sentencing on the Basis of D-Methamphetamine Mr. Ward next argues that his sentence was incorrec tly based on D-methamphetamine rather than L-methamphetamine. B ecause no objection was made at sentencing, review is for plain error. As counsel recognizes, this issue is foreclosed by our holding in United States v. Denin no , 29 F.3d 572, 580 (10th5

Cir. 1994), cert. denied , 115 S. Ct. 1117 (1995), which rejected the same argument Mr. Ward raises here. Counsel simply rais es the issue in order to preserve the right to petition the Supreme Court fo r certiorari.

III. Determination of Drug Quantity and Base Offen se Level at Sentencing Finally, Mr. Ward challenges the district court’s d etermination of his base offense level at sentencing. The court concluded t hat the drug trafficking conspiracy involved 14.28 kilograms of methamphetam ine, resulting in a base offense level of 36. Mr. Ward argues that the court’s determination of the drug quantity involved is incorrect because the court re lied on uncorroborated or unreliable evidence when it concluded that certain drug transactions actually took place. At sentencing, the government bears the bur den of proving drug quantity by a preponderance of the evidence. Chatman , 994 F.2d at 1516. We review the district court’s factual findings for clear error. Id. Trial testimony indicated Mr. Ward’s and the co-con spirators’ involvement in the various transactions which the district court relied on when determining his base offense level. None of this testimony was so seriously discredited at trial that the district court could not have reasonably u sed it for sentencing. Even if discrepancies in the testimony existed, we still gi ve deference to the “district court’s opportunity to judge the credibility of witnesses on whose testimony it6

relied.” Id. at 1517. After reviewing the record, we cannot say that the district court’s factual findings were clearly erroneous. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge