* This order and judgment is not binding precedent, e xcept under the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

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

### JUN 10 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 03-1448

v. (D. Colorado) ANN LORI TALAMANTES aka Ann Talamantes, Defendant - Appellant. (D.C. No. 02-CR-605-RB)

ORDER AND JUDGMENT *

Before TACHA, Chief Judge, ANDERSON and BALDOCK , 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Ann Talamantes appeals the sentence imposed followi ng her plea of guilty to knowingly conspiring to manufacture methamphetam ine in an amount of fifty grams or more, in violation of 21 U.S.C. §§ 841(a)( 1) and (b)(1)(B). We affirm.

BACKGROUND On April 15, 1999, while executing a search warrantat the residence of Ann and Ken Talamantes at 8771 Dawson, Apartment 20 2, in Adams County, Colorado, law enforcement authorities found jars of iodine, several containers containing liquids which appeared to be pseudoephed rine, coffee filters, acetone, hypophosphorus acid, blister packs with pseudoephed rine medications, an oval pan with a razor blade, a glass funnel, a digital s cale and thirty grams of methamphetamine. Some of these items were found in an office in the small apartment, while others were found in the living ro om, kitchen and bedroom. The lead officer, Randy Goin, testified that “[e]ssenti ally we found everything that was needed to manufacture methamphetamine in the ap artment, with the exception of hydrochloric or muriatic acid, which aquick trip to the hardware store [can provide].” Tr. of Hr’g on Sentencing at17, R. Vol. II. Officers also found surveillance equipment, includi ng a camera outside the front door, a monitor for the camera in the office, and a night vision scope. Additionally, they retrieved four unloaded firearms from the residence: a .357-3-

and a .38 in a soft-sided briefcase in the office, a Raven .25 automatic pistol in a dresser drawer in the bedroom, and a Springfield bo lt-action rifle underneath the waterbed frame in the bedroom. A box of .22 calibe r bullets was found in the closet in the office. Ann Talamantes told the offi cers about the two weapons in the office, and explained that she had obtained the m as collateral after posting bond for two people in jail, but had never used the m. She denied any knowledge of the weapons found in the bedroom. She testified at her sentencing hearing that she and her husband had obtained the surveillance e quipment after a home invasion robbery in 1996. Her husband, Ken, testif ied that he had gotten the rifle found in the bedroom as a gift for his father, but he had kept it in order to make some repairs on its scope. He testified that he ha d forgotten about the pistol found in the bedroom because he had not seen it in a long time. Ken further testified that Ann had no knowledge of the weapons in the bedroom. Both Ann and Ken Talamantes pled guilty. Ann Talam antes’ base offense level for sentencing purposes was 34, based upon th e amount of methamphetamine which could have been produced fromthe materials recovered at the apartment. The presentence report (“PSR”) r ecommended that her base offense level be increased by two levels pursuant t o United States Sentencing Commission, Guidelines Manual (“USSG”), §2D1.1(b)(1) (Nov. 2002), because Talamantes possessed four guns “in connection with” the offense. The PSR-4-

recommended a three-level decrease for acceptance o f responsibility under USSG §3E1.1(a) and (b). Talamantes objected to the two- level enhancement under §2D1.1(b)(1), and she also sought a two-level decre ase under the safety valve provision of USSG §5C1.2, on the ground that she ha d not used a firearm in connection with the offense and otherwise met the s afety valve requirements. The government opposed Talamantes’ positions on §§2 D1.1(b)(1) and 5C1.2, but did not oppose the acceptance of respons ibility downward departure. Additionally, the government filed a USSG §5K1.1 mo tion requesting that Talamantes be given a downward departure of 25% fro m the otherwise applicable guideline sentence because she had provided substantial assistance to the government in its investigation of other members of the drug manufacturing conspiracy. At the sentencing hearing held for both Ann and KenTalamantes, they both testified, as did Officer Goin and a friend of Ann Talamantes. At the conclusion of the hearing, the court found that Ann Talamantes had possessed the two guns found in the office “in connection with” the operat ion of the methamphetamine production lab. Tr. of Hr’g on Sentencing at 79, R . Vol. II. More specifically, with respect to the §2D1.1(b)(1) enhancement, the d istrict court held that it was “not clearly improbable” that Ann Talamantes had po ssessed the two weapons “in connection with” her offense. Id. With respect to the court’s denial of-5-

Talamantes’ §5C1.2 safety valve reduction, the court found “[t]hat it has been established by a preponderance of the evidence” that Talamantes possessed the guns “in connection with” her offense. Id. at 79-80. The court sentenced Talamantes to 101 months’ imprisonment, followed byfour years of supervised release. She appeals, arguing the district court e rred in imposing the two-level increase under §2D1.1(b)(1) and in denying her the two-level decrease under §5C1.2.

DISCUSSION I. Section 2D1.1(b)(1) enhancement Talamantes argues that the district court erred in increasing her base offense level by two points for possession of a weapon, in accordance with USSG §2D1.1(b)(1). “We review factual findings under U. S.S.G. § 2D1.1(b)(1) for clear error; we give due deference to the applicati on of the Guidelines to the facts; we review purely legal questions de novo.” United States v. Pompey , 264 F.3d 1176, 1180 (10th Cir. 2001) (further quotationomitted). Section 2D1.1(b)(1) provides a two-level increase “ [i]f a dangerous weapon (including a firearm) was possessed.” The Guidelin es further provide that “[t]he [enhancement for weapon possession] should be appli ed if the weapon was present, unless it is clearly improbable that the w eapon was connected with the-6-

offense.” USSG §2D1.1(b)(1), comment. (n.3). The government bears the initial burden of proving possession of a weapon by a prepo nderance of the evidence. Pompey , 264 F.3d at 1180; see also United States v. Humphrey , 208 F.3d 1190, 1210 (10th Cir. 2000). The government can satisfy this burden by demonstrating “‘that a temporal and spatial relation existed betw een the weapon, the drug trafficking activity, and the defendant.’” Pompey , 264 F.3d at 1180 (quoting United States v. Roederer , 11 F.3d 973, 982 (10th Cir. 1993)(further quotati on and citation omitted)). Thus, “mere proximity to t he offense” may satisfy the government’s initial burden. United States v. Vaziri , 164 F.3d 556, 568 (10th Cir. 1999) (further quotation omitted). If the governme nt satisfies its initial burden, “the burden shifts to the defendant to show ‘that i t is clearly improbable the weapon was connected with the offense.’” Pompey , 264 F.3d at 1181 (quoting Vaziri , 164 F.3d at 568). In this case, the government presented evidence that the two weapons Ann Talamantes admittedly knew about were in the small office, near a safe containing methamphetamine and some of the materials used to m anufacture methamphetamine, and in the same room in which surv eillance equipment was found. The district court found that the governmen t had met its initial burden of proof of possession by a preponderance of the evide nce, and that Talamantes had-7-

failed to establish that it was clearly improbable that the guns were connected to the drug manufacturing operation: [I]n this case it is pellucid or clarion to this co urt . . . that you were operating a methamphetamine lab from out of your ho use. It’s equally clarion to the court that that security sys tem that you told me was a vanguard against burglary served a secondary purpose, and that was to secure your clandestine meth[amphetamine] la b, and I also find and conclude as part of that security system, there were firearms involved.

. . . I find that defendant Ann Talamantes was in actual or constructive possession of the .357 caliber handgunand the .38 caliber handgun.

. . . I go on to find and conclude on this record that itwas not clearly improbable that possession of the .357 cali ber and .38 caliber handguns was used by Ann Talamantes in connection w ith the offense. . . . Tr. of Hr’g on Sentencing at 78-79, R. Vol. II. Th ose findings are not clearly erroneous. It is immaterial that the guns were unloaded. See United States v. Roberts , 980 F.2d 645, 647 (10th Cir. 1992); see also United States v. Francis , 367 F.3d 805, 826 (8th Cir. 2004); United States v. Smythe , 363 F.3d 127, 129 (2d Cir. 2004); United States v. Harris , 128 F.3d 850, 853 (4th Cir. 1997); United States v. Mitchell , 31 F.3d 271, 278 (5th Cir. 1994); United States v. Ewing , 979 F.2d 1234, 1238 (7th Cir. 1992). We therefore affi rm the district court’s twolevel enhancement of Talamantes’ base offense level under §2D1.1(b)(1). See United States v. Alexander , 292 F.3d 1226, 1231 (10th Cir. 2002) (affirming-8-

§2D1.1(b)(1) enhancement when gun was found in cigar box in closet of bedroom near a quantity of crack cocaine); United States v. Flores , 149 F.3d 1272, 1280 (10th Cir. 1998) (affirming §2D1.1(b)(1) enhancement when “a loaded shotgun was found in close proximity to a large quantity of drugs stored in the headboard of his bed”).

II. §5C1.2(a)(2) safety valve The safety valve provisions of §5C1.2 permit the co urt to depart downward from the statutory minimum sentence in order to imp ose proportionately lesser sentences on defendants who are less culpable. To qualify for application of the safety valve, a defendant must demonstrate that he or she meets all five criteria listed, including that “the defendant did not . . . possess a firearm or other dangerous weapon . . . in connection with the offen se.” USSG §5C1.2(a)(2). The defendant must establish that he or she satisfies e ach criterion by a preponderance of the evidence. United States v. Virgen-Chavarin , 350 F.3d 1122, 1129 (10th Cir. 2003); see United States v. Hallum , 103 F.3d 87, 89 (10th Cir. 1996) (“We have recently held that the burden is on a defendan t who seeks a reduction in sentence under § 5C1.2 to prove entitlement to it.” ). “We review a district court’s application of the Guidelines’ safety valve provisi ons for clear error,” bearing in mind “that the district court’s application of the safety valve is fact specific and1 Talamantes cites an unpublished opinion of this cou rt, in which we

indicated “that it is not clear whether the substan tive standards of the two provisions [§2D1.1(b)(1) and §5C1.2(2)] are identic al.” United States v. Burgess , No. 01-1168, 2002 WL 185545, at **4 n.4 (10th Cir. Feb. 6, 2002). She urges us to find that the two standards are substantively di fferent and that the finding that she is eligible for a two-level increase under §2D1 .1(b)(1) does not automatically preclude her from obtaining a §5C1.2(a) downward de parture. See United States v. Bolka , 355 F.3d 909, 913 (6th Cir. 2004) (“We expressly disclaim the proposition that conduct warranting a § 2D1.1(b)(1) sentence enhancement necessarilyforecloses the application of a § 5C1.2(a) “safety valve” reduction as this per se conclusion does not necessarily follow from the di fferent evidentiary standards of §§ 2D1.1(b)(1) and 5C1.2(a)(2).”); see also United States v. Nelson , 222 F.3d 545, 550-51 (9th Cir. 2000). We need not address that argument in this case, as the district court made separate conclusio ns as to each guideline provision and did not hold that its resolution of t he §2D1.1(b)(1) enhancement necessarily and automatically foreclosed applicatio n of the safety valve provision of § 5C1.2(a)(2). -9- dependent on credibility determinations that cannotbe replicated with the same accuracy on appeal.” Virgen-Chavarin , 350 F.3d at 1129. The district court held that Talamantes had failed to prove entitlement to the safety-valve reduction, finding that “it has be en established by a preponderance of the evidence that . . . Ann Talama ntes . . . possessed a firearm in connection with this offense within the meaning of U.S.S.G. 5C1.2(a)(2).” Tr. of Hr’g on Sentencing at 79-80, R. Vol. II. We fin d no error in that determination. 1-10- CONCLUSION For the foregoing reasons, we AFFIRM the sentence i mposed by the district
court. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge