1 The Honorable Joan N. Ericksen, United St ates District Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-3323

___________ United States of America, *
* Appellee, * Appeal from the United States * District Court for the v. * District of Minnesota. * Julio Cesar Lopez, * [UNPUBLISHED]
* Appellant. *

___________ Submitted: September 28, 2007 Filed: October 4, 2007

___________ Before BENTON, BOWMAN, and SHEPHERD, Circuit Judges.

___________ PER CURIAM. Julio Cesar Lopez pleaded guilty to po ssessing approximately thirty-two grams of cocaine base with the intent to distri bute. 21 U.S.C. § 841(a)(1); 841(b)(1)(B). The District Court 1 applied a two-level enhancement to Lopez's sentence after finding that he possessed a firearm in connection with the offense. U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1(b)(1) (2006). Thus , Lopez was ineligible for safety-valve relief. Id. §§ 2D1.1(b)(9); 5C1.2(a )(2). Lopez appeals, arguing that the court's application of the firearm enhancement was clearly erroneous. We affirm.-2- Pursuant to a warrant, police officers c onducted a search of Lopez's residence and discovered one kilogram of cocaine, th ree pounds of marijuana, scales, and drugpackaging materials in a basement be droom. Police also recovered a loaded semiautomatic submachine gun under a mattress in the basement bedroom. In Lopez's upstairs bedroom, police recovered thirty-two grams of cocaine base. In a post-arrest statement to police, Lopez admitted that th e thirty-two grams of cocaine base found in the upstairs bedroom and the three pounds of marijuana found in the basement bedroom belonged to him. Lopez also ad mitted that he knew the loaded submachine gun was in the basement and that he had handled the firearm inthe past. Lopez contended, however, that the firearm did notbelong to him and that he had asked the gun's owner to remove the gun from his residence.

At sentencing, Lopez objected to the two-level firearm enhancement recommended in the presentence investigati on report (PSR), but he did not dispute the underlying facts cited in the PSR to support the enhancement. Lopez argued instead that the undisputed facts failed to establis h a sufficient nexus be tween the firearm and the offense to which he was pleading guilty . The government argued that the presence of the firearm in the basement of Lopez's residence (where Lopez admitted he stored three pounds of marijuana) combined with Lopez's statement to police that he knew the firearm was in the house a nd that he had handled the weapon in the past provided sufficient evidence to support th e enhancement. The Distri ct Court rejected Lopez's argument, applied the two-level firearm enhancement, and sentenced Lopez to 60 months' imprisonment.

"We review the district court's findings of fact for clear error and its application of the Sentencing Guidelines de novo." United States v. Burling , 420 F.3d 745, 749 (8th Cir. 2005). The guidelines providethat the firearm enhancement "should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1, cmt. n.3. Lopez correctly notes that the "mere presence of a fir earm is an insufficient predicate for a § 2D1.1(b)(1)-3- enhancement." United States v. Savage , 414 F.3d 964, 966 (8th Cir. 2005). Rather, the firearm must be possessed by the defe ndant and "connected with the criminal activity before its possession can be used to enhance the defendant's sentence." Id. The firearm may be constructivel y possessed by the defendant, seeUnited States v. Torres , 409 F.3d 1000, 1003 (8th Cir. 2005), especially if the firearm is "readily accessible" at the place wh ere the defendant commits the crime, Savage , 414 F.3d at 967. And the firearm need not be present during the offense of conviction as long as it is present during relevant conduct. Id. at 966. The government must only establish by a preponderance of the evidence that a "t emporal and spatial nexus [exists] among the weapon, defendant, and drug- trafficking activity." Torres , 409 F.3d at 1003.

Here, the undisputed facts establish that Lopez lived at the residence in which the illegal drugs and the firearm were lo cated; Lopez possessed the roughly thirty-two grams of cocaine base found in his ups tairs bedroom and the three pounds of marijuana found in the basement bedroom; Lopez knew that a loaded semiautomatic submachine gun was present in the residen ce and admitted that he had handled the firearm in the past; and the firearm was recovered from the basement bedroom in close proximity to Lopez's marijuana. In thes e circumstances, we hold that the District Court did not clearly err in finding that it was not clearly improba ble that the firearm was connected with Lopez's drug trafficking activities. Because Lopez was properly assessed the firearm enhancement, he wa s not eligible for safety-valve relief. U.S.S.G. § 5C1.2(a)(2).

We affirm the judgment of the District Court.

______________________________