* The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 

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

### MAR 2 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ADRIAN LARON JOHNSON, Defendant-Appellant. No. 97-2178 (D.C. No. 95-CR-23-LH) (District of New Mexico)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY and LUCERO , Circuit Judges.

Pursuant to a plea agreement, Adrian Johnson pleade d guilty to conspiracy to possess with intent to distribute more than five grams of a substance containing cocaine base, in violation of 21 U.S.C. § 846 and 1 8 U.S.C. § 2, and possession with intent to distribute of a substance containing cocaine base within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a) and18 U.S.C. § 2. At sentencing, the district court imposed a two-level enhancement under U.S.S.G. § 2D1.1(b)(1)- 2 -

for possession of a firearm during a drug trafficki ng offense. Johnson appeals, contending that this enhancement was erroneous. On December 19, 1994, undercover agent Michael Pell igrini of the Drug Enforcement Administration Metropolitan Task Force met with Johnson at Johnson’s home to negotiate the purchase of crack c ocaine. The actual transaction took place at a nearby fast-food restau rant. Agent Pelligrini handed approximately $1,200 to Johnson; Johnson then point ed to the location of a brown paper bag. It was later determined that the bag co ntained 27 net grams of crack cocaine. Agent Pelligrini subsequently obtained a search warrant for Johnson’s home which was executed on December 22 by the DEA and th e Bernalillo County Sheriff’s Department. During a search of the resid ence, the officers discovered 18.33 net grams of crack cocaine, scales, $1,021 incash, and written notes and instructions related to narcotics sales. The offic ers also found a 12 gauge sawedoff shotgun, fully-loaded with the safety disengage d, and a .380 caliber semiautomatic pistol, fully-loaded with a round of ammu nition chambered. Both weapons were in the living room, and Johnson’s fing erprints were found on the sawed-off shotgun. During the search, Johnson and a companion returned home. Both men were detained. A search of their vehicle revealed a 9mm Taurus semiautomatic pistol also with a round of ammunition ch ambered.- 3 -

At the sentencing hearing following his guilty plea , Johnson objected to the proposed two-level increase under § 2D1.1(b)(1). I n response, the government submitted an affidavit prepared by Agent Pelligrini detailing his investigation and listing the items found in Johnson’s residence. Ad opting the factual findings in the pre-sentence report, the district court overrul ed Johnson’s objections and enhanced his sentence. We review the district court’s factual determinations for clear error. See United States v. Robertson , 45 F.3d 1423, 1449 (10th Cir. 1995) To sustain an enhancement under § 2D1.1(b)(1), the government must prove by a preponderance of the evidence “that a te mporal and spatial relation existed between the weapon, the drug trafficking ac tivity, and the defendant.” United States v. Roederer , 11 F.3d 973, 982 (10th Cir. 1993) (quoting United States v. Eastland , 989 F.2d 760, 770 (5th Cir. 1993)). “Generally, the government must provide evidence that the weapon wa s found in the same location where drugs or drug paraphernalia are stor ed or where part of the transaction occurred.” Id. at 983 (quoting United States v. Hooten , 942 F.2d 878, 882 (5th Cir. 1991)). If the government meets its burden, the defendant must show that it is “clearly improbable” that the weapo n was related to the offense. See Robertson , 45 F.3d at 1449; see also U.S.S.G. § 2D1.1, comment. (n.3) (“The adjustment should be applied if the weapon was pres ent, unless it is clearly improbable that the weapon was connected with the o ffense.”).- 4 -

The evidence presented by the government indicated that loaded weapons, drugs, a large quantity of money and drug paraphern alia were found in Johnson’s home. One of the firearms had Johnson’s fingerprints on it. Additionally, the first meeting between Agent Pelligrini and Johnson took place at Johnson’s home. We therefore find no error in the district court’s conclusion that the government met its burden of showing the relationship between the weapon, the offense and the defendant by a preponderance of the evidence. The defendant argues that the government presented no evidence that he had possession of the guns, given that there were o ther occupants of the residence. He also contends that because Agent Pel ligrini’s affidavit failed to state sufficient information as to the spatial prox imity of the weapons to the drugs, the district court’s sentencing decision was erroneous. We are unpersuaded that these arguments are sufficient to establish that it was “clearly improbable” that the weapons were connected to drug trafficking. Based on the evidence, the district court judge was not clearly erroneous in enhancing Johnson’s sentence. AFFIRMED. The mandate shall issue forthwith. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge