USCA1 Opinion

       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 98-2345



                          UNITED STATES,



                            Appellee,



                                v.



                 JUAN CARLOS DURAN, a/k/a Moreno,



                      Defendant, Appellant.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



             [Hon. Gene Carter, U.S. District Judge]







                              Before



                     Torruella, Chief Judge,

                Campbell, Senior Circuit Judge,

                   and Lynch, Circuit Judge.

                                

                                

                                

                                

     James B. Krasnoo on brief for appellant.

     Jay P. McCloskey, United States Attorney, and Margaret D.

McGaughey, Assistant United States Attorney, on brief for appellee.











May 27, 1999







                                

                                





     Per Curiam.  Juan Carlos Duran, who pled guilty to one count

of conspiracy to distribute and possess with intent to distribute

heroin, appeals from his sentence on the sole ground that the

district court erred in imposing a two-level enhancement for

possession of a weapon under U.S.S.G.  2D1.1(b)(1).

     "We review factual determinations made in the course of

sentencing for clear error, mindful that such determinations need

only be supported by preponderant evidence.  Moreover, the district

court's application of a relevant guideline to the facts of a given

case is a fact-sensitive matter that engenders clear-error review."

United States v. McDonald, 121 F.3d 7, 9 (1st Cir. 1997) (citations

omitted), cert. denied, __ U.S. __, 118 S. Ct. 725 (1998).

     It was not clear error for the district court to conclude that

the government satisfied its burden of showing the requisite "nexus

between the weapon and the offense." Id. at 9.  On this record, the

district court's finding that "the gun was placed [in the hall

closet] to be available to be utilized if necessary to protect the

drug transaction proceeds that were secreted in the bedroom," was

not clearly erroneous.  This constructive possession for such

purpose qualifies as "possess[ion] [of] the weapon during the

currency of the offense." Id. at 10.

     Once "the government has shown that a firearm possessed by the

defendant was present during the commission of the offense, the

burden shifts to the defendant to persuade the factfinder that a

connection between the weapon and the crime is clearly improbable."

Id.   Duran  failed to meet that burden.   His arguments that the

                                2

enhancement should not apply because 1) the gun was not present

during any of the drug transactions and 2) the gun was not located

in close enough proximity to the drugs, are unavailing.

     We have not interpreted 2D1.1(1)(b) as requiring that the

defendant have the gun on his person during a drug transaction. 

"While a nexus must be shown between the weapon and the criminal

act, the defendant need not have the weapon on his person or in the

immediate vicinity for the enhancement to apply.  Presence may be

constructively established." United States v. Pineda, 981 F.2d 569,

473 (1st Cir. 1992).  Where defendant is convicted of conspiracy to

commit a drug offense, "the sentencing guidelines require only that

a gun be present during some portion of an ongoing crime." United

States v. Berrios, 132 F.3d 834, 839 (1st Cir. 1998).

     Nor have we required that the weapon be located in close

proximity to the drugs.  The enhancement applies if the weapon is

used to protect either the participants, the drugs or the cash

involved in the drug business during the ongoing conspiracy. See

United States v. Corcimiglia, 967 F.2d 724, 727 (1st Cir. 1992). 

In United States v. Paulino, 887 F.2d 358 (1st Cir. 1989), this

court affirmed application of the weapon enhancement on facts

similar to these.  A gun was found in an apartment where cash

proceeds of the drug transactions were stored.  The drugs

themselves were found in a separate apartment.  We held that

"[g]iven the facts of the instant case, it is not 'clearly

improbable' that the loaded 9 mm. semi-automatic pistol was

connected to the drug offense." Id. at 360.

     The district court was not clearly erroneous in applying the

 2D1.1(1)(b) sentence enhancement and the judgment is therefore

affirmed. See Loc. R. 27.1.