* This order and judgment is not binding precedent, except under the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. 

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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
2

Defendant Daniel Ward was convicted by a jury on multiple 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 incorrectly 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 improperly enhanced his

sentence pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm. Under

§ 2D1.1(b)(1), the government bears the initial burden of establishing the

temporal and spatial proximity of the firearm to the 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 firearm was in the same general

location “‘where drugs or drug paraphernalia are stored or where part of the

transaction occurred.’” Id. (citation omitted). Once the government meets this

burden, the burden shifts to the defendant to show that it is “clearly improbable”

that the firearm was related to the drug transaction. United States v. Contreras,

59 F.3d 1038, 1040 (10th Cir. 1995).
3

Mr. Ward attacks both the physical and temporal proximity 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, pagers, packaging materials, a .22

caliber Llama semi-automatic pistol and a .22 caliber Iver Johnson semiautomatic pistol. The drug paraphernalia contained methamphetamine residue. 

Furthermore, the evidence at trial indicated that Mr. Ward had engaged in drug

trafficking activity from his home by telephone approximately two weeks before

his residence was searched. Testimony also established 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 firearm 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 sufficient 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 found in a shed outside the

house. He ignores, however, the fact that testimony established that drug

transactions occurred in the house and that other drug paraphernalia was found

inside the house. Our cases clearly indicate that this evidence is sufficient to
4

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 transactions 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 present sufficient evidence that a

relationship between the firearms and the drug trafficking 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, but 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 involvement 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 incorrectly based on

D-methamphetamine rather than L-methamphetamine. Because 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. Deninno, 29 F.3d 572, 580 (10th
5

Cir. 1994), cert. denied, 115 S. Ct. 1117 (1995), which rejected the same

argument Mr. Ward raises here. Counsel simply raises the issue in order to

preserve the right to petition the Supreme Court for certiorari.

III. Determination of Drug Quantity and Base Offense Level at Sentencing

Finally, Mr. Ward challenges the district court’s determination of his base

offense level at sentencing. The court concluded that the drug trafficking

conspiracy involved 14.28 kilograms of methamphetamine, 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 relied on uncorroborated or 

unreliable evidence when it concluded that certain drug transactions actually took

place. At sentencing, the government bears the burden 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-conspirators’ 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 used it for sentencing. Even if

discrepancies in the testimony existed, we still give deference to the “district

court’s opportunity to judge the credibility of witnesses on whose testimony it
6

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 for the Western District of

Oklahoma is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge