* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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. 

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

### JAN 15 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICHARD ROSTER, Defendant-Appellant. No. 98-1203 (D.C. No. 97-CR-71-D) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.
Defendant-Appellant Richard Roster appeals from his sentence on a single count of conspiracy to possess with intent to distr ibute cocaine. He contends that the district court erred in awarding him a two-leve l firearms enhancement under U.S.S.G. § 2D1.1(b)(1). We affirm.1 Roster and five co-defendants were indicted on drug and firearm charges

on March 13, 1997. Roster was named in only one of six counts in the indictment.

2 Roster concedes that he had an ownership interest i n the cocaine supplied by Valle in the deal. - 2 - BACKGROUND Richard Roster pled guilty in February 1998 to cons piracy to possess with intent to distribute cocaine, in violation of 21 U. S.C. §§ 841(a)(1) and 846, on charges stemming from a drug transaction that occurred on January 11, 1997, at a Chili’s restaurant in Colorado Springs. 1 On that day, Roster and three friends (Andrew McCardell, Mauricio Roman, and Israel Reyes ) arrived at the restaurant to assist another friend, Christopher Valle, in a d eal to sell more than 400 grams of cocaine to two undercover agents. 2Roster and his friends sat a few tables away from Valle and the agents. At one point, Reye s and Roman left to check the parking lot for police surveillance while Roster an d McCardell remained in the restaurant. Reyes also checked in on Valle as the transaction was carried out in the men’s restroom. After eating, Roster and McCar dell moved to the bar section of the restaurant and drank some beers. Roster testified at his sentencing hearing that although he did not directly participate in the drug transaction, he “was there, ” and he “knew what was going on.” (Sent. Tr. at 11.) He testified that he pers onally did not have any weapon on him during the deal, but when asked by his own coun sel whether he was aware- 3 -

that his companions had guns during the transaction , Roster testified that he assumed they did, even though he did not see any we apons until they left the restaurant and returned to their vehicle. (See id. at 14.) At that point, he noticed that Roman, McCardell, and Valle all had guns. (Se e id. at 15.) After establishing a base offense level of 24 for the amount of cocaine at issue, the district court awarded Roster a two-leve l firearms enhancement under U.S.S.G. § 2D1.1, “because at least one firearm was present during the transaction on January 11, 1997.” (Id. at 37.) The court found that the enhancement applied even if Roster did not personal ly possess a weapon, because Roster was aware that Roman, McCardell, and Valle h ad weapons in connection with the deal. (See id. )
DISCUSSION We review a district court’s legal interpretation o f the Sentencing Guidelines de novo , but we review the court’s factual determinations at sentencing for clear error. See United States v. Roberts , 980 F.2d 645, 647 (10th Cir. 1992). Section 2D1.1(b)(1) of the Sentencing Guidelines st ates: “If a dangerous weapon (including a firearm) was possessed, increas e by 2 levels.” The commentary to this provision adds: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess we apons. The- 4 -

adjustment should be applied if the weapon was pres ent, unless it is clearly improbable that the weapon was connected wi th this offense. U.S.S.G. § 2D1.1(b)(1), comment. (n.3). The government bears the initial burden of proving possession by a preponderance of the evidence. See Roberts , 980 F.2d at 647. This burden may be met “even if there is no evidence other than pro ximity to suggest that the gun was connected to the offense.” Id. Once the government meets its burden, the defendant may escape the enhancement only by provin g the exception established in the commentary to § 2D1.1 – that it is “clearly improbable” that the weapon was connected with the offense. See id. Roster has not made any showing that it was clearlyimprobable that the weapons were connected with the offense. Instead, Roster submits that the enhancement is inapplicable because there was no ev idence that he personally possessed any weapon during the deal or that he hadactual knowledge of his compatriots’ possession of weapons at the time the transaction took place. Both contentions are unavailing. First, personal p ossession of a firearm is not necessary to trigger application of § 2D1.1(b)( 1). See United States v. Smith , 131 F.3d 1392, 1400 (10th Cir. 1997) (upholding fir earms enhancement based on loaded weapons found in methamphetamine lab where d efendant worked, even though none was registered to defendant or bore his fingerprints), cert. denied , 118 S. Ct. 1109 (1998). Second, the sentencing cou rt may “‘attribute to a- 5 -

defendant weapons possessed by his codefendants if the possession of weapons was known to the defendant or reasonably foreseeabl e by him.’” Id. (quoting United States v. McFarlane , 933 F.2d 898, 899 (10th Cir. 1991)). The preponderance of the evidence before the senten cing court was sufficient to conclude that weapons were present du ring, and connected to, the drug transaction. Roster offered no evidence to th e contrary, and conceded at his sentencing hearing that he assumed that his friends were carrying guns at the restaurant to back up Valle during the deal. Becau se it was reasonably foreseeable to Roster that his cohorts possessed we apons during the sale, the district court did not err in attributing to Rosterweapons possessed by his codefendants. The court’s application of the two- level enhancement under § 2D1.1(b)(1) was proper.
AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge