* This order and judgment is not binding precedent, except under the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

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 10 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, Nos. 03-8000, 03-8008, 03-8011

v. (D. Wyoming) JOSE MARTINEZ, DANIEL RICHARD AROS, and UMBERTO JURADO-BARAJAS, a/k/a Felix Francisco Garcia,

Defendants-Appellants. (D.C. No. 02-CR-039-J)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and HARTZ , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case therefore is orde red submitted without oral argument.-2-

This appeal arises from the joint trial of the thre e defendants, each of whom were named in a superseding indictment. We have co nsolidated their appeals for the purpose of this disposition. On May 17, 2002, the defendants were charged with one count of conspiracy to traffic in methamph etamine 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 co unt I for Daniel Aros and Jose Martinez. The trial also involved Mr. Jur ado-Barajas, and several codefendants who are not before us in this appeal. On October 15, 2002, the jury returned guilty verdi cts 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 sup ervised release, and a special assessment of $100. Mr. Martinez was likewise sent enced to 188 months’ imprisonment, five years of supervised release, anda special assessment of $100. 2. Mr. Jurado-Barajas Mr. Jurado-Barajas was also charged with possessionof 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 offens e, in violation of 18 U.S.C. §1 The superseding indictment dated May 17, 2002, li sts only three counts,

yet the parties indicate that a fourth count was ch arged, and later dismissed, against Mr. Jurado-Barajas. Aplts’ App. vol. I, att.1. -3- 924(c)(1)(A)(i) (count IV). 1 Mr. Jurado-Barajas pleaded guilty to counts I andII of the superseding indictment and was found guilty at trial of count IV. Mr. Jurado-Barajas was sentenced to 188 months’ impriso nment on counts I and II, to be served concurrently, and to a consecutive 60 mon ths imprisonment, a $2,000 fine, and five years of supervised release on countIV. On appeal, the defendants raise the following issu es: Mr. Aros: 1. the evidence presented at trial was insufficient to connect him to the charged conspiracy, and the government faile d 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 coconspirators; Mr. Aros and Mr. Martinez: 3. the district court erred when it admitted variou s out-of-court statements into evidence under Fed. R. Evid. 801(d) (2)(E) because they were not made in furtherance of the co nspiracy;-4-

4. the district court erred when it instructed the jury regarding the amount of methamphetamine involved in the conspirac y as a whole; 5. the district court’s factual findings regarding the drug amounts “reasonably foreseeable” to each defendant for sent encing purposes were “clearly erroneous;” Mr. Martinez: 6. the district court erred when it enhanced his se ntence for possession of a firearm in connection with a drug o ffense; Mr. Jurado-Barajas: 7. the district court clearly erred when it found t hat 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 andaffirm the convictions and sentences of each defendant.

I. BACKGROUND We recite the relevant facts in the light most favo rable to the government because the jury convicted the defendants. See United States v. Duran , 133 F.3d 1324, 1326 n.1 (10th Cir. 1998). From the early pa rt of 2001 until his arrest in-5-

early February 2002, Mr. Jurado-Barajas was involve d in a substantial methamphetamine trafficking organization centered i n 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, $13,0 00 in cash, weighing scales, packaging materials, drug ledgers, and a fi rearm from his trailer, and approximately three pounds of methamphetamine, more than $62,000 in cash, and weighing scales from his apartment. The methamphet amine 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 Gil lette, Wyoming. Numerous individuals were involved with the conspir acy. Kirk Buckman, Mr. Aros’ roommate, testified he received methamphe tamine from Mr. Aros on two occasions. Kenneth Powers testified that he me t Mr. Aros in the summer of-6-

2001 and purchased methamphetamine from him three t o four times a week. Jessica Friesen testified that, during the winter o f 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 hi m, citing her friendship with
Mr. Aros. Jennifer Dobkins testified that she sold methamphet amine 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. Marti nez was his source but on cross-examination, Mr. Aros admitted Mr. Martinez w as 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’ Invo lvement in the Conspiracy 1. Standard of Review-7-

In considering a challenge to the sufficiency of th e evidence, “[w]e review the entire record in the light most favorable to th e government to determine whether the evidence, both direct and circumstantia l, together with the reasonable inferences to be drawn therefrom, is such that a re asonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Angulo-Lopez , 7 F.3d 1506, 1510-11 (10th Cir. 1993) (quoting United States v. Fox , 902 F.2d 1508, 1513 (10th Cir. 1990)); accord United States v. Coleman , 7 F.3d 1500, 1502 (10th Cir. 1993); United States v. Davis , 1 F.3d 1014, 1017 (10th Cir. 1993). Furthermore, we must “accept the jury's resolution of conflicting evidence and its assessment of the credibility of witnesses.” Davis , 1 F.3d at 1017. In a conspiracy prosecution, the government must pr ove: (1) “two or more persons agreed to violate the law,” (2) “the defend ant knew at least the essential objectives of the conspiracy,” (3) “the defendant k nowingly and voluntarily became a part of the conspiracy,” and (4) “the co-c onspirators were interdependent.” Davis , 1 F.3d at 1017. The government may prove all of these elements through direct or circumstantial evidence. Coleman , 7 F.3d at 1503; see also United States v. Brown , 200 F.3d 700, 708 (10th Cir. 1999) (“Circumstanti al evidence is often the strongest evidence of conspir acy.”). To establish the element of agreement, the prosecut ion must show “‘a unity of purpose or a common design and understanding’ wi th co-conspirators to-8-

accomplish one or more of the objects of the conspi racy.” Angulo-Lopez , 7 F.3d at 1510 (quoting United States v. Kendall , 766 F.2d 1426, 1431 (10th Cir. 1985)). An agreement may be inferred from “‘frequent contac ts’” among the coconspirators and “‘their joint appearances at trans actions and negotiations.’” United States v. Evans, 970 F.2d 663, 669 (10th Cir. 1992) (quoting United States v. Esparsen , 930 F.2d 1461, 1472 (10th Cir. 1991)). However, evidence of association, casual transactions, or a buyer-sellerrelationship between a defendant and other co-conspirators is insufficient

. Id. The element of interdependence, a highly fact-sensi tive issue, may be proven by showing that each co-conspirator is depen dent upon “‘the operation of each link in the chain to achieve the common goal’” and “‘intended to act together for their shared mutual benefit.’” Angulo-Lopez , 7 F.3d at 1510 (quoting
Evans , 970 F.2d at 670, 671). Therefore, “a single cons piracy does not exist solely because many individuals deal with a common central player; they must be interconnected in some way.” Evans , 970 F.2d at 670. Moreover, “[t]he defendant’s participation in or connection to the c onspiracy need only be slight, so long as sufficient evidence exists to establish the defendant’s participation beyond a reasonable doubt.” United States v. Johnston , 146 F.3d 785, 789 (10th Cir. 1998).-9-

2. Analysis Mr. Aros claims the evidence is insufficient to pro ve the essential element of interdependence. He claims the only evidence pr esented was packaging material seized from his apartment and hearsay stat ements from uncharged coconspirators. The evidence at trial indicated that Mr. Aros’ part icipation 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 excha nge for immunity from prosecution, testified that she bought methamphetam ine 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 t o 3 pounds of methamphetamine from him. Ms. Friesen also testified that she saw Mr. Aros an d 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, b ecause she preferred to go-10-

“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 testif ied that Mr. Aros stated he was trying to get better prices from somebody else, and that Mr. Martinez was “ripping him off.” Id. at 322. Jennifer Dobkins testified she met Mr. Aros in Dece mber 2001. She stated she sold methamphetamine, which she received from M r. 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 t old her he was trying to take Mr. Martinez out of business by lowering his prices formethamphetamine. Stacey Larson, who pleaded guilty to conspiracy to possess with intent to deliver and to deliver methamphetamine, testified t hat she had been receiving and selling methamphetamine for Mr. Jurado-Barajas. Sh e 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 trans actions on a ledger. While Mr. Jurado-Barajas was in Mexico, she updatedthe ledgers and, at Mr. Jurado-Barajas’ request, attempted to collect m oney from various persons, including Mr. Martinez who “owed money for methamph etamine transactions.” Id. vol. III, at 172. Ms. Larson testified that she r eceived a call from Mr. Martinez asking to meet. During their meeting, he asked to purchase-11-

methamphetamine, and she delivered two ounces to hi m after he paid her for the contraband. She also testified that she tried to c ollect the $6,000 outstanding debt owed to Mr. Jurado-Barajas from Mr. Martinez without success. See id. at 210 and Ex. 401. Kenneth Powers, who pleaded guilty to conspiracy to deliver methamphetamine, testified that he purchased methamphetamine “about every day” from Mr. Aros. Id. vol. IV, at 332

. Mr. Powers testified that he began to resell the contraband, and over the course of ten m onths, he bought approximately two pounds of methamphetamine from Mr. Aros. Mr. P owers also testified that when he attempted to make a purchase during February 2002, Mr. Aros explained that his connection “got busted.” Id. at 336. The government notes that Mr. Jurado-Barajas was arrested on February 6, 2002. M r. Powers testified that he bought approximately three pounds from Mr. Aros ove rall, 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, a nd that he made $2,000 a week from selling the drug. Mr. Aros admitted to s elling 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’ bedro om.-12-

At trial, Mr. Aros testified that he knew Mr. Marti nez and Mr. Lopez and that Mr. Aros and Mr. Martinez had occasionally smo ked 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 th at Mr. Navarette supplied him with two to three pounds of methamphetamine. O n 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 t o the conspiracy need only be slight, so long as sufficient evidence exis ts to establish the defendant’s participation beyond a reasonable doubt.” United States v. Johnston , 146 F.3d 785, 789 (10th Cir. 1998). Upon review of the rec ord, we conclude that the evidence from the above witnesses, and from Mr. Aro s 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 b enefit.” Angulo-Lopez , 7 F.3d at 1510 (internal quotation marks omitted).-13-

B. Improper Joinder Mr. Aros next contends that he was prejudiced by improper joinder He also maintains that, although he did not move to se ver either before or during his trial, that we should review de novo the court’s re fusal to sever sua sponte. Ordinarily, we would review the denial of a motion to sever for an abuse of discretion, United States v. Eads , 191 F.3d 1206, 1209 (10th Cir. 1999), but here we review for plain error. United States v. Torres , 53 F.3d 1129, 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 gra nted a severance “sua sponte.” United States v. Iiland, 254 F.3d 1264, 1269 (10th Cir. 2001). As outlined above, there was ample evidence to supp ort 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 evi dence necessarily overlapped with the evidence against his co-defendants, joinde r was proper. See United States v. Killip , 819 F.2d 1542, 1547 (10th Cir. 1987) (“Joinder is clearly proper under Fed. R. Crim. P. 8(b), because the Governmentalleged that [the defendant] had ‘participated in the same . . . series of acts or transactions’ as the other defendants.”) (quoting Fed. R. Crim. P. 8(b)). The re was no plain error here.-14-

C. Admission of the Co-conspirator Statements Mr. Aros and Mr. Martinez both challenge the distri ct court’s admission into evidence various statements by co-conspirators . Under Federal Rule of Evidence 801(d)(2)(E), co-conspirator statements ar e not considered hearsay and are thus properly admitted if the district court fi nds, by a preponderance of the evidence, that (i) “a conspiracy existed,” (ii) “bo th the declarant and the defendant against whom the declaration is offered w ere members of the conspiracy,” and (iii) the statement “was made in t he course of and in furtherance of the conspiracy.” United States v. Eads , 191 F.3d 1206, 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. D obkins 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. v ol. IV, at 387. Also challenged were Ms. Friesen’s statements that Mr. A ros’ source was Mr. Martinez and that Mr. Aros was considering going to someone other than Mr. Martinez to get “better prices.” Id. at 322. In addition, Mr. Aros challenges the stat ement by Mr. Powers that Mr. Aros had told him that his conn ection “got busted.” Id. at 336.Mr. Aros states that the testimony only suggested that Mr. Aros and Mr. Martinez were at some point competitors, but the st atements in no way furthered-15-

the conspiracy. Prior to the admission of the disp uted evidence, the district court held a hearing, outside the presence of the jury, a nd found that there was sufficient evidence of a conspiracy between Mr. Aro s 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 entir e record, we hold that the district court’s factual findings in this regard we re not clearly erroneous and that it did not abuse its discretion in admitting the ch allenged statements under Federal Rule of Evidence 801(d)(2)(E). Mr. Martinez also asserts that the admission of the se statements violated his Sixth Amendment right to confront witnesses againsthim by denying him the ability to confront the witness making the statemen t. Aplt’s Br. at 9. Because we hold that the evidence in this case meets the re quirements for admission under Rule 801(d)(2)(E), it also satisfies the requirements of the Confrontation Clause. See United States v. Molina , 75 F.3d 600, 603 (10th Cir. 1996) (recognizing th at “the requirements for admission of evidence under F ederal Rule of Evidence 801(d)(2)(E) are identical to the requirements of t he Confrontation Clause, so if the evidence meets the requirements of Rule 801(d)( 2)(E), the evidence is constitutionally admissible”).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 c harged in Count One of the Superseding Indictment, then you must also determin e the amount of methamphetamine involved in the conspiracy. The su bstantive charge of conspiracy requires the government to prove beyond a reasonable doubt that the conspiracy involved only a measurable amount of met hamphetamine. When, as in this case, an indictment alleges the conspiracy inv olved more than a measurable amount of methamphetamine, the government is requir ed to prove an amount beyond a reasonable doubt. You do not have to find the exact amount of methamphetamine involved. The government is requir ed to prove beyond a reasonable doubt that the conspiracy involved the d istribution 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 methamphe tamine; or (C) at least a measurable amount but less than 50 grams of methamp hetamine. 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 un animous.

. . . . Methamphetamine distributed or possessed by other m embers of the conspiracy must be reasonably foreseen as a necessary or natural consequence of the agreement. This does not require proof that ea ch co-conspirator specifically agreed or knew that an actual amount of methampheta mine would be distributed or possessed by all members of the conspiracy. But , the government must prove that the amount of methamphetamine distributed or p ossessed 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 pro ved beyond a reasonable doubt a defendant could have reasonably foreseen the methamphetamine distributed or possessed by other m embers of the conspiracy, you are instructed to add those amounts to the amou nt of methamphetamine you find, beyond a reasonable doubt, the defendant pers onally distributed or (continued...) -16- D. Challenge to Instruction 32 Mr. Martinez and Mr. Aros next challenge that Instruction 32 violated their right to an individual determination of the evidenc e regarding drug amounts reasonable foreseeable to them. 2 “We review de novo a timely challenge to a jury2 (...continued)

possessed. Aplt’s App. vol. I, doc. 194, Instr. 32 (emphasis a dded).

-17- instruction to determine whether, considering the i nstructions as a whole, the jury was misled.” United States v. Guidry , 199 F.3d 1150, 1156 (10th Cir. 1999) (internal citations omitted). We reverse only when we “have substantial doubt that the jury was fairly guided.” Id. (internal citations omitted). We agree with the Government’s argument that Instru ction 32 was given to satisfy Apprendi v. New Jersey , 530 U.S. 466 (2000), and did not contravene that case as Mr. Aros contends. The jury was instructedto make specific findings regarding the amount of drugs attributable to the c onspiracy. But the instruction also provided that the government must prove that the amount of methamphetamine distributed or possessed by the con spiracy was an amount that was reasonably foreseeable to the individual defend ant. In addition, any alleged Apprendierrors did not affect the defendants’ substantial rights: the maximum sentence either defendant could have received is tw enty years (240 months), see 21 U.S.C. § 841(b)(1)C), and sentences falling with in the twenty-year maximum sentence do not require an Apprendi determination as to drug quantity. See United States v. Wilson , 244 F.3d 1208, 1215 n.4 (“Apprendiis not violated if a defendant’s sentence falls within the twenty-year m aximum sentence of 21 U.S.C.-18-

§ 841(b)(1)(C)” because the jury “need only determi ne specific quantity if it leads to sentences beyond the maximum for mere possession .”).

E. Relevant Conduct Determination as to Each Defend ant Mr. Aros and Mr. Martinez each challenge the distri ct 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 , 175 F.3d 822, 836-37 (10th Cir. 1999). We will uphold the district court’s ca lculation of drug quantity unless that calculation is clearly erroneous. Id. at 837. The Sentencing Guidelines provide that a court may consider relevant information without regard to its admissibility und er the rules of evidence so long as the information has “sufficient indicia of relia bility to support its probable accuracy.” USSG. § 6A1.3; see also United States v. Fennell , 65 F.3d 812, 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 es timate 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 particula r case, and bears sufficient indicia of reliability.” United States v. Ruiz-Castro , 92 F.3d 1519, 1534 (10th Cir. 1996) (internal quotation marks omitted). Thu s, if the ledgers introduced-19-

into evidence and the testimony at trial possess su fficient indicia of reliability, the district court properly based its estimate of relev ant drug quantity on those

sources.

1. Mr. Aros Based upon the PSR’s relevant conduct determinationof at least 5 kilograms but less than 15 kilograms of methamphetamine, Mr. Aros’ guideline level was 36. He had a criminal history category o f 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 supervis ed release, and a special assessment of $100. Mr. Aros contends that at most the government has s hown by a preponderance of the evidence that he possessed anddistributed 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 w ithout further proof of the quantities alleged therein. The district court heard and considered evidence wh en it determined relevant conduct. Mr. Aros’ own testimony indicate d that: (1) he told law enforcement agents that he had distributed 15 pound s of methamphetamine; (2) that Mr. Martinez was his source; and (3) that he w as indeed guilty of conspiracy, just not of this conspiracy. See Rec. vol. V, at 599-602; 628. Clearly the distric t-20-

court did not simply adopt the presentence report a s its only finding. See United States v. Yarnell , 129 F.3d 1127, 1137 (10th Cir. 1997). The distri ct court’s determination of relevant conduct was not in error.

2. Mr. Martinez Mr. Martinez contends that the district court clea rly 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 dru g ledgers that indicate that he owed Mr. Jurado-Barajas the sum of $6,000 for be tween six and twelve ounces of the drug. See Rec. vol. X, at 84. That quantity would support asentencing range of 78-97 months. The district court sentence d Mr. Martinez to 188 months’ imprisonment, five years of supervised release, anda special assessment of $100. The district court carefully considered the evidenc e before it. The PSR determined Mr. Martinez’ relevant conduct involved more than 5 kilograms but less than 15 kilograms of methamphetamine. Mr. Ma rtinez 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 deter mined Mr. Martinez’ relevant conduct involved more than 1.5 kilograms. It first considered a drug ledger from Mr. Jurado-Barajas’ trailer that referr ed to Mr. Martinez. Mr. Martinez’ inclusion on the ledger tied him to the a mount seized from the trailer,-21-

which was approximately 1,721.72 grams. The court also concluded that the evidence at trial proved 400 grams. We hold that t he 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 US SG § 2D1.1(b)(1) Mr. Martinez challenges the court’s finding that th ere was a temporal and spatial relationship between the weapon, the drug t rafficking activity, and himself, to support a two-level enhancement of his sentence. We review factual findings under § 2D1.1(b)(1) for clear error, givin g due deference to the application of the guidelines to the facts. United States v. Pompey , 264 F.3d 1176, 1180 (10th Cir. 2001). “The [enhancement forweapon 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.” Pompey , 264 F.3d at 1180. This burden may be satisfied by showing that there is a temporal and s patial relationship between the weapon, the drug trafficking activity, and the defe ndant. Id. Once the government has met its burden, the defendant must s how “that it is clearly improbable the weapon was connected with the offens e.” Id. “[T]he focus of §-22-

2D1.1(b)(1) is whether [defendant] possessed a fire arm in connection with the offense to which he pleaded guilty.” United States v. Dickerson , 195 F.3d 1183, 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 fro m 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 u se in the apartment, and that Mr. Martinez asked Ms. Friesen to sell dru gs for him while she was in the apartment as evidence of temporal and spatial p roximity to drug trafficking. The government also relied upon the presence of a f oodsaver sealer in the apartment, and a plastic baggie that had Mr. Martin ez’ fingerprints on it, as evidence of drug packaging material. In this case, the government had only to show the C olt .803 was possessed during, or was discovered in a place where the cons piracy was carried out or furthered. Indeed, although there was no evidence to show Mr. Martinez carried, brandished, loaned, accessed, or held the weapon du ring any drug transaction or that the weapon was present or nearby, the uncontro verted evidence that he possessed a dangerous weapon, USSG § 2D1.1(b)(1), d uring the course of the conspiracy, overrides. The district court did not err when it determined that he-23-

possessed it in a location where some of the activi ties of the drug conspiracy occurred. The district court also noted that as an illegal im migrant, 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.” Id. The district court concluded that Mr Martinez did not m eet “the threshold to establish that it’s clearly improbable that the gun had nothi ng to do with the controlled substance.” Id. We hold 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/superv isor of a criminal activity involving five or more participants within the mean ing of USSG § 3B1.1(b). Under the Sentencing Guidelines, a district court m ay impose a three-level increase in a defendant’s offense level where the c riminal activity involved five or more participants and the defendant played a man agerial or supervisory role. USSG § 3B1.1(b). We review the district court’s det ermination that a defendant was a manager or supervisor of criminal activity fo r clear error. United States v.
VanMeter , 278 F.3d 1156, 1166 (10th Cir. 2002).-24-

We conclude from a review of the record that the di strict court properly found that Mr. Jurado-Barajas met the requirements for a three-level increase. The government showed by a preponderance of the evi dence 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 w ere the center of this activity and that Mr. Jurado-Barajas planned much of the act ivity, the district court did not commit clear error in finding that he was a sup ervisor or manager of the operation.

III. CONCLUSION Accordingly, we AFFIRM the convictions and sentence s of each defendant

Entered for the Court,

Robert H. Henry Circuit Judge