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United States v. Guzman-Reyes

United States Court of Appeals, Fifth Circuit

April 5, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
JESUS GUZMAN-REYES, Defendant-Appellant

         Appeal from the United States District Court for the Northern District of Texas

          Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge

         Jesus Guzman-Reyes appeals his sentence for possession with intent to distribute methamphetamine and illegal reentry into the United States. Specifically, Guzman challenges the district court's assessment of the U.S.S.G. § 2D1.1(b)(12) enhancement for maintaining a premises for the purpose of drug distribution, as well as the § 3B1.1(c) enhancement for Guzman's aggravating role in the offense. We affirm.

         I.

         In August 2015, the Fort Worth Police Department received information from a confidential source that Guzman planned to deliver a large quantity of methamphetamine to a location in Arlington, Texas. Officers located Guzman's car and began surveillance, following him to an auto shop. Police observed Guzman exiting his car and making a phone call. Shortly thereafter, a second person-later identified as John Campbell-arrived at the shop. Campbell greeted Guzman and unlocked the front door of the shop. The two then entered the building together. Guzman soon left the shop with a large bag, which he placed in his car, and then drove away. After officers initiated a traffic stop, a search of Guzman and his car revealed $3, 600 in cash, several cellphones, a pistol, and multiple bags containing approximately 2, 035.7 grams of methamphetamine. The officers learned that Guzman was from Mexico and that he had entered the United States illegally after a 2012 deportation, which itself followed convictions for illegal reentry and possession of a controlled substance.

         Officers later returned to the auto shop to question Campbell, who stated that he was the owner of the shop and admitted that methamphetamine and firearms were stored inside. Campbell directed officers to the bottom desk drawer in his office, where they found a Tupperware container holding approximately 547.15 grams of methamphetamine. Officers located an additional 70.87 grams of methamphetamine in a second Tupperware container on a shelf above the desk. Officers also discovered eleven firearms in the shop, three of which had been reported stolen, and a large supply of ammunition. Campbell admitted that he stored methamphetamine for Guzman at the shop over the span of three months in exchange for about one ounce of methamphetamine per month, a value of approximately $1, 000. According to Campbell, Guzman did not have keys to the shop, but contacted Campbell whenever he needed access.

         In November 2015, Guzman pleaded guilty, without a plea agreement, to one count of possession with intent to distribute methamphetamine and one count of illegal reentry into the United States. For his methamphetamine conviction, the Pre-sentence Report (PSR) applied a two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for the purpose of distributing methamphetamine and a two-level enhancement under § 3B1.1(c) for Guzman's aggravating role in the offense. Guzman objected to both enhancements. The district court overruled both objections and sentenced Guzman to a total of 360 months of imprisonment, based on consecutive imprisonment terms of 240 months on the methamphetamine conviction and 120 months on the illegal-reentry conviction, the statutory maximums for each offense. The district court also imposed three years of supervised release. Guzman now appeals the district court's application of the two sentencing enhancements.

         II.

         Guzman first argues that the district court erred in applying the § 2D1.1(b)(12) enhancement for maintaining a premises for drug distribution. "A district court's application of § 2D1.1(b)(12) is a factual finding reviewed for clear error." United States v. Haines, 803 F.3d 713, 744 (5th Cir. 2015). Thus, the question before us is whether the district court's determination "is plausible in light of the record read as a whole." See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).

         Section 2D1.1(b)(12) provides a two-level enhancement of a defendant's offense level if the defendant "knowingly maintains a premises (i.e., a building, room, or enclosure) for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution." § 2D1.1 cmt. n.17 (emphasis added). "Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant's primary or principal uses for the premises, rather than one of the defendant's incidental or collateral uses for the premises." Id.

         Guzman used the auto shop for "storage of a controlled substance for the purpose of distribution" and that purpose was his "primary or principal use[] for the premises."[1] Guzman insists, however, that he did not "maintain" the premises within the meaning of § 2D1.1(b)(12). Although the term "maintains" is not expressly defined in the Guideline, the application note for § 2D1.1(b)(12) explains that "[a]mong the factors the court should consider in determining whether the defendant 'maintained' the premises are (A) whether the defendant held a possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access to, or activities at, the premises." § 2D1.1 cmt. n.17.

         For further interpretive guidance of the term "maintain, " many of our sister circuits have drawn on parallel caselaw examining a similar statutory provision, 21 U.S.C. § 856 (commonly known as the "stash house" statute), which makes it unlawful to "knowingly . . . maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance[.]" See, e.g., United States v. Carter, 834 F.3d 259, 261-63 (3d Cir. 2016); United States v. Flores-Olague, 717 F.3d 526, 531- 32 (7th Cir. 2013); United States v. Johnson, 737 F.3d 444, 446-47 (6th Cir. 2013); United States v. Miller, 698 F.3d 699, 705-06 (8th Cir. 2012). This approach makes good sense, because § 2D1.1(b)(12) was based in large part on § 856.[2]

         In the § 856 context, we have explained that "whether a defendant has 'maintained' a place is necessarily a fact-intensive issue that must be resolved on a case-by-case basis." United States v. Morgan, 117 F.3d 849, 857 (5th Cir. 1997). Similar to interpreting § 2D1.1, we "typically consider whether a defendant (1) has an ownership or leasehold interest in the premises, (2) was in charge of the premises, or (3) exercised 'supervisory control' over the premises." United States v. Barnes, 803 F.3d 209, 216 (5th Cir. 2015) (citing United States v. Soto-Silva, 129 F.3d 340, 346 (5th Cir. 1997)). These factors are not necessarily determinative alone, but should be considered together. See United States v. Chagoya, 510 F.App'x 327, 328 (5th Cir. 2013). We have also suggested that "not just any showing of dominion and control will suffice to support a maintenance finding" under § 856. Morgan, 117 F.3d at 856. Instead, the evidence should support "that the ...


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