UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

___________________

No. 99-40182 Summary Calendar ___________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD WAYNE MILES,

Defendant-Appellant. ________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (1:98-CR-79-1) _________________________________________________________________

November 1, 1999

Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Donald Wayne Miles appeals his 72-month sentence on his

guilty-plea conviction for conspiracy to distribute, and to possess

with intent to distribute, marijuana. He contends that the

district court erred by enhancing his sentence pursuant to U.S.S.G.

§ 2D1.1(b)(1) (two level increase in offense level of a drug crime

if defendant possessed a dangerous weapon). In this regard, he

asserts that the three weapons in question were not connected with

his drug trafficking offense, but were for the protection of his

radiator shop in case of robbery (due to previous felony

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. convictions, Miles was prohibited from possessing firearms); and

that, in the light of Bailey v. United States,

(1995),§ 2D1.1(b)(1) should be applied only where the weapon was

actively employed or was an operative factor in the predicate

offense.

Sentencing Guidelines applications are reviewed de novo.

United States v. Reyna-Espinosa,

(5th Cir. 1997).

The district court’s assessment of a two level enhancement for

possession of a firearm is a factual determination reviewed only

for clear error. United States v. Navarro,

(5th

Cir.), cert. denied, sub nom. Edmonson v. United States,

(U.S. 4 Oct. 1999) (No. 98-9659).

The § 2D1.1(b)(1) adjustment “should be applied if the weapon

was present, unless it is clearly improbable that the weapon was

connected to the offense”. § 2D1.1, application n.3; United States

v. Mitchell,

(5th Cir.), cert. denied,

(1994). “The government has the burden of proof under § 2D1.1

of showing by a preponderance of the evidence that a temporal and

spatial relation existed between the weapon, the drug trafficking

activity, and the defendant.” United States v. Vasquez,

(5th Cir. 1998) (internal quotations and citation

omitted). “Applying this standard, the government must provide

evidence that the weapon was found in the same location where drugs

or drug paraphernalia are stored or where part of the transaction

occurred.”

(internal quotation and citation omitted).

- 2 - Miles’ assertion that, in the light of Bailey, we should

heighten the above described standards for satisfying § 2D1.1(b)(1)

is raised for the first time on appeal; we review only for plain

error. There is none. See United States v. Griffith,

(5th Cir. 1997).

Furthermore, there is no merit to his claim that the

Government failed to prove a connection between his possession of

a firearm and his drug trafficking offense. A presentence report

(PSR) is generally considered reliable enough to be considered by

the trial court as evidence in making the factual determinations

required by the Guidelines. E.g., United States v. West,

(5th Cir. 1995). The district court adopted the PSR’s

findings that: Miles used his business’ garage to wrap, package,

and load into a vehicle approximately 200 pounds of marijuana; the

police recovered a shotgun, along with 30 pounds of marijuana and

various drug-trafficking paraphernalia, from the garage of Miles’

business; and, the police recovered a pistol and second shotgun

from the office area that adjoins the garage.

These uncontested facts establish that, at the very least, the

shotgun found in the garage area of Miles’ business was connected

with his drug trafficking offense, as it was found in the same

location where part of the drug transaction occurred and where the

drugs and drug paraphernalia were stored. See Navarro,

.

AFFIRMED

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