United States v. Nicholas J. Larry ( 2019 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13725
Non-Argument Calendar
________________________
D.C. Docket No. 5:16-cr-00017-MTT-CHW-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS HOLMES,
a.k.a. CJ,
Defendant-Appellant.
________________________
No. 17-13728
Non-Argument Calendar
________________________
D.C. Docket No. 5:16-cr-00017-MTT-CHW-1
UNITED STATES OF AMERICA,
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Plaintiff-Appellee,
versus
GEOFFREY LARRY,
a.k.a. Jeff,
Defendant-Appellant.
________________________
No. 17-13931
Non-Argument Calendar
________________________
D.C. Docket No. 5:16-cr-00017-MTT-CHW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICHOLAS J. LARRY,
a.k.a. Nick,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Georgia
________________________
(April 4, 2019)
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Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Geoffrey Larry, Nicholas Larry, and Curtis Holmes appeal on several
grounds their sentences imposed by the district court after they each pleaded guilty
to one count of distributing cocaine base. Geoffrey, Nicholas, and Holmes argue
that the district court erred in calculating their base offense levels under U.S.S.G.
§ 2D1.1 by including drug quantities based on information provided by unreliable
confidential informants. Geoffrey and Holmes challenge the district court’s
application of a two-level enhancement under § 2D1.1(b)(12) for maintaining a
premises for the purpose of manufacturing or distributing a controlled substance
(“premises enhancement”). Geoffrey also argues that the district court erred by
applying a two-level enhancement under § 2D1.1(b)(1) for possessing a firearm in
the offense (“firearm enhancement”) and by assigning him two additional criminal
history points under § 4A1.1(d) for committing the instant offense during a prior
sentence of probation. After careful consideration of the briefs and the record, we
affirm.
I. BACKGROUND
Geoffrey, Nicholas, and Holmes came to the attention of state and federal
law enforcement after local authorities identified them as individuals suspected of
being involved in a drug distribution organization. During the resulting
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investigation, state agents interviewed a county jail inmate who told them that
Geoffrey was a main provider of cocaine in the Macon County, Georgia area who
supplied his brother Nicholas and others with cocaine for distribution. The
informant stated that Nicholas sold cocaine from a house on MLK Jr. Drive in
Montezuma, Georgia, which was called the “Pink House.” Doc. 143 at 10 ¶ 12. 1
Authorities also received reports of the smell of marijuana coming from inside an
apartment located on Vienna Road in Montezuma (“Vienna Road apartment”),
where Geoffrey and his sister lived.
Law enforcement used confidential informants to purchase crack cocaine
from Geoffrey and Nicholas on several occasions. Informants purchased crack
from Nicholas and Geoffrey at a convenience store and at a home located at 312
River Road in Montezuma (“River Road house”). According to these informants,
Holmes was present for at least two of these purchases at the River Road house.
The informants also reported that during the purchases multiple firearms sat on a
table near where Nicholas and Holmes had been sitting.
Law enforcement eventually executed search and arrest warrants at the River
Road house, the Vienna Road apartment, and other locations.2 At the River Road
house, agents discovered powder cocaine, crack cocaine, and marijuana, among
1
Citations to “Doc. #” refer to numbered entries on the district court’s docket.
2
The Pink House suffered severe fire damage before the search warrants were executed.
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other things. At the Vienna Road apartment, law enforcement found a kitchen
cabinet containing powder cocaine, various items commonly used to turn powder
cocaine into crack, and Geoffrey’s driver’s license. The searches produced a total
of 80.73 grams of cocaine base, 68 grams of powder cocaine, 25 grams of
marijuana, and four firearms. Geoffrey, Nicholas, and Holmes were indicted for
several offenses; each pleaded guilty to one count of distributing cocaine base.
Before sentencing, a probation officer prepared presentence investigation
reports for Geoffrey, Nicholas, and Holmes. For Sentencing Guidelines purposes,
the probation officer determined that the drug quantity for all three defendants
included 25 grams of marijuana, 68 grams of cocaine, and 80.73 grams of crack
cocaine, which equated to approximately 302 kilograms of marijuana. The
probation officer assigned each defendant a base offense level of 24 under
U.S.S.G. § 2D1.1(a)(5), (c)(8) for an offense involving at least 100 kilograms but
less than 400 kilograms of marijuana. The defendants each received a two-level
enhancement pursuant to § 2D1.1(b)(1) for possession of a dangerous weapon.
The probation officer also added a two-level enhancement for each defendant
under § 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing
or distributing a controlled substance. Each defendant’s offense level was reduced
by three levels for acceptance of responsibility under § 3E1.1, rendering a total
offense level of 25.
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For Geoffrey, the probation officer calculated three criminal history points
based on his prior convictions. Because the instant offense was committed while
Geoffrey was on probation for a 2014 conviction for driving under the influence of
alcohol and driving with a suspended license, the probation officer added two
points under U.S.S.G. § 4A1.1(d). Geoffrey’s five criminal history points placed
him in a criminal history category of III. With a total offense level of 25 and a
criminal history category of III, his advisory guideline range was 70 to 87 months’
imprisonment.
For Nicholas, the probation officer calculated three criminal history points
based on his prior convictions, placing him in criminal history category II. With a
total offense level of 25 and a criminal history category of II, Nicholas’s advisory
guideline range was 63 to 78 months’ imprisonment.
For Holmes, the probation officer calculated seven criminal history points
based on his prior convictions. Because Holmes committed the instant offense
while on probation for a 2004 conviction for selling marijuana, the probation
officer added two points under § 4A1.1(d). Holmes’s nine criminal history points
placed him in criminal history category IV. With a total offense level of 25 and a
criminal history category of IV, Holmes’ advisory guideline range was 84 to 105
months’ imprisonment.
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The government objected to the probation officer’s base offense level
calculation for each defendant on the ground that the probation officer failed to
include drug quantities from various drug sales to confidential informants. At
sentencing, the district court held an evidentiary hearing where the government
presented testimony supporting its objections. The government called as witnesses
law enforcement officers who testified about additional drug sales the defendants
allegedly made to confidential informants outside the officers’ presences. Brian
Queener, an agent with the federal Bureau of Alcohol, Tobacco, Firearms, and
Explosives, testified that one of these informants, CI-1, told Queener that the
informant had met Nicholas and Geoffrey through CI-1’s girlfriend. According to
CI-1, his girlfriend bought a total of 23 ounces of crack cocaine from the brothers’
father over a three-month period in 2015; Geoffrey would supply the drugs to his
father each time. Queener also testified that CI-1 stated that at some point CI-1’s
girlfriend began to deal with Nicholas, who sold her 18 additional ounces of crack
cocaine; Queener was unsure whether this occurred in one purchase or was the
aggregate of several smaller purchases. CI-1 informed Queener that he also
purchased a total of 9 ounces of crack directly from Geoffrey in a series of small
transactions. Queener testified he was aware that CI-1 had a felony conviction and
that the GBI paid him in small amounts.
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Queener testified that he also spoke with a second confidential informant,
CI-2. CI-2 told Queener that he had previously purchased drugs from the Larry
brothers for personal use. CI-2 also told Queener that throughout 2014 he
purchased one ounce of crack cocaine per week for another person. For half of
2015, CI-2 continued buying one ounce of crack cocaine per week for this person;
CI-2 also purchased an extra half-ounce each week to give to a second person.
On cross-examination, Queener testified that CI-1 told him about CI-1’s
history with the Larry brothers and Holmes five months after Geoffrey had been
arrested. Queener also stated that to protect CI-1’s safety he did not corroborate
CI-1’s accounts with the girlfriend; nor did Queener check the girlfriend’s phone
records to confirm that she in fact had set up the purchases. Queener noted that
there was no surveillance of these transactions. He admitted that he did not
personally review CI-1’s criminal history, but he knew that the informant had
provided other reliable information. Queener further stated that although CI-2 said
he was not buying crack for himself, agents never drug tested him while he served
as an informant.
After hearing this evidence and the parties’ arguments, the district court
agreed with the government that the drug quantity used to calculate the defendants’
base offense level should have been higher. Based on CI-1’s reports of purchasing
50 ounces of crack cocaine from the defendants, the court accepted the
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government’s proposal that 25 out of the 50 ounces should be included in the drug
quantity. Based on CI-2’s account, the court determined that he bought 91 ounces
of crack cocaine from the defendants. The district court accepted the government’s
proposal to include 45 of the 91 ounces in the drug quantity. The court also found
that the total drug quantity was attributable to each defendant.
In sentencing Geoffrey, Nicholas, and Holmes, the court determined that the
drug quantity for each defendant, based on the equivalent amount of marijuana for
the drugs at issue, was 7,305.6 kilograms; this resulted in a base offense level of 32
for an offense involving between 3,000 and 10,000 kilograms of marijuana.
Applying the premises and firearm enhancements and a reduction for acceptance of
responsibility for all three defendants, the district court calculated the total offense
level as 33 for each defendant. After determining that Geoffrey’s advisory
guideline range was 168 to 210 months’ imprisonment, the court sentenced
Geoffrey to 170 months. The court calculated Nicholas’s guideline range as 151 to
188 months’ imprisonment and sentenced Nicholas to 155 months. After
calculating Holmes’s range as 188 to 235 months’ imprisonment, the court varied
downwards and imposed a 170-month sentence.
II. STANDARD OF REVIEW
We review the district court’s interpretation of the Sentencing Guidelines de
novo and its factual findings for clear error. United States v. Torrealba, 339 F.3d
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1238, 1242 (11th Cir. 2003). Clear error arises only where “we are left with a
definite and firm conviction that a mistake has been committed.” United States v.
Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (internal quotation marks
omitted).
III. DISCUSSION
Geoffrey, Nicholas, and Holmes appeal their sentences on several grounds.
They each argue that the district court erred in calculating their base offense levels
by improperly relying on the officers’ hearsay testimony relaying statements made
by CI-1 and CI-2. Geoffrey and Holmes appeal the district court’s application of
the premises enhancement. Geoffrey also appeals the application of the firearm
enhancement. In addition, Geoffrey appeals the district court’s calculation of his
criminal history category, specifically the court’s finding that he committed the
instant offense while serving a prior sentence.
We first discuss the district court’s consideration of the hearsay testimony
relaying the information from the confidential informants. We then discuss the
court’s application of the premises enhancement, followed by the firearm
enhancement. We lastly turn to the district court’s calculation of Geoffrey’s
criminal history.
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A. The District Court Did Not Clearly Err in Considering Hearsay
Testimony to Calculate the Drug Amounts.
Geoffrey, Nicholas, and Holmes argue that the district court erred in relying
on the officers’ hearsay testimony about CI-1 and CI-2 to calculate their base
offense levels. They contend the district court erred by failing to explicitly find
that CI-1 and CI-2 were credible and by concluding that the information provided
by the confidential informants was corroborated by the record. Nicholas and
Holmes argue that CI-1’s failure to provide details about whether his girlfriend was
with him or whether the drug sales happened in one transaction or multiple showed
a lack of credibility. Nicholas and Holmes also argue that CI-2’s crack cocaine
addiction and criminal history, including a past conviction for fraud or theft,
undermined his credibility.
The government responds that the district court twice explicitly found the
confidential informants credible. The government further contends that regardless
of whether the district court explicitly found the confidential informants credible,
the court did not err in relying on the hearsay testimony because the informants’
accounts were supported by the record.
When a defendant objects to the drug quantity, the government bears the
burden of proving the disputed amount by a preponderance of the evidence.
United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). If the amount of
contraband seized does not reflect the scale of the offense, a sentencing court must
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“approximate the quantity of the controlled substance.” Id. (internal quotation
marks omitted). The court may base its calculation “on evidence showing the
average frequency and amount of a defendant’s drug sales over a given period of
time.” Id. (internal quotation marks omitted). “Although sentencing may be based
on fair, accurate, and conservative estimates of the quantity of drugs attributable to
a defendant, sentencing cannot be based on calculations of drug quantities that are
merely speculative.” United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir.
1998).
A sentencing court may consider evidence in the form of hearsay in
determining whether to enhance a defendant’s sentence. United States v. Ghertler,
605 F.3d 1256, 1269 (11th Cir. 2010). Nonetheless, the evidence must have
sufficient indicia of reliability, the district court generally must make explicit
credibility findings, and the defendant must have an opportunity to rebut the
evidence. Id. Even when a district court does not make explicit credibility
findings, “the absence of such findings does not necessarily require reversal or
remand where the reliability of the statements is apparent from the record.” United
States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000).
Here, the district court made two statements at sentencing about the
confidential informants’ credibility. First, in overruling an objection to their
credibility, the court stated that “looking at the evidence overall, the accounts of
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the confidential informants are consistent with the other evidence obtained during
the course of the investigation.” Doc 195 at 180. Second, the district court
observed:
So accepting that there’s credibility issues with regard to confidential
informants always, we all know where the government gets confidential
informants from. They don’t come in squeaky clean. And I accept that.
And I take the credibility issues into account. But there is corroboration
here of precisely what these two CIs reported from all the other
evidence that we’ve heard and is detailed in the presentence report.
Doc. 195 at 241. These statements were sufficient to satisfy the requirement that
the district court make explicit credibility findings regarding the informants’
accounts.
We next consider whether the court erred in finding that the informants’
accounts were sufficiently reliable. The Sentencing Guidelines allow a district
court to “consider relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy.” United States v. Docampo,
573 F.3d 1091, 1098 (11th Cir. 2009) (quoting U.S.S.G. § 6A1.3(a)). Where, as
here, a defendant has an opportunity to refute the evidence, a sentencing court may
consider hearsay testimony bearing “minimal indicia of reliability.” United States
v. Bourne, 130 F.3d 1444, 1447 (11th Cir. 1997) (internal quotation marks
omitted). To establish that hearsay evidence lacks minimal indicia of reliability, “a
defendant must show (1) that the challenged evidence is materially false or
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unreliable and (2) that it actually served as the basis for the sentence.” Ghertler,
605 F.3d at 1269.
We conclude that the hearsay testimony regarding the accounts of CI-1 and
CI-2 bore at least minimal indicia of reliability because the record corroborates the
informants’ accounts. The informants’ accounts of regularly purchasing
approximately an ounce of crack cocaine at a time, over an extended period,
matched the information that law enforcement had gathered over the nearly two-
year investigation. Law enforcement used the informants to purchase around an
ounce of crack cocaine on multiple occasions. The searches of the River Road
house, the Vienna Road apartment, and other homes produced more than 80 grams
of crack cocaine, 68 grams of powder cocaine, and materials used to turn powder
cocaine into crack. Although Nicholas and Holmes argue that CI-2 was unreliable
because of his past drug use and criminal history, these circumstances alone are
insufficient to render CI-2 unreliable, absent some evidence presented by the
defendants showing that CI-2’s memory was faulty due to a drug addiction or past
dishonesty. See United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997)
(“[T]he fact that the witness has consistently lied in the past, engaged in various
criminal activities, and thought that his testimony would benefit him . . . does not
make his testimony incredible.” (alterations adopted) (internal quotation marks
omitted)), modified on other grounds by United States v. Toler, 144 F.3d 1423,
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1426-28 (11th Cir. 1998); United States v. Lee, 68 F.3d 1267, 1276 (11th Cir.
1995) (“[T]he mere fact that these witnesses were drug users does not
automatically prove that they are unreliable. [The defendant] has pointed to no
evidence [that] indicates that these witnesses were addicts with impaired
memories, which would call their testimony into question.”). Because the
informants’ accounts were sufficiently reliable, the district court did not clearly err
in relying on the hearsay statements to calculate the drug quantities attributable to
Geoffrey, Nicholas, and Holmes. 3
In support of their argument that the informants’ accounts were unreliable,
Geoffrey, Nicholas, and Holmes cite United States v. Frazier, 89 F.3d 1501 (11th
Cir. 1996). In Frazier, we reviewed a district court’s findings as to the quantity of
drugs attributable to three co-defendants who had been convicted of narcotics and
firearms violations. Frazier, 89 F.3d at 1503, 1505-07. The district court had
attributed increased drug quantities to these individuals based on a witness’s
testimony that the three had repeatedly sold an undetermined amount of drugs over
an extended period of time. Id. at 1505-07. This witness testified that one of the
individuals was “selling cocaine on a daily basis”; the witness also testified that the
3
The government argues that because no defendant raised before the district court the
arguments they each raise on appeal concerning the district court’s drug-quantity finding, this
issue should be reviewed for plain error. We disagree. All the defendants raised the issue of the
informants’ credibility at sentencing.
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two remaining co-defendants “sold cocaine base two or three days per week during
the summer.” Id. at 1506-07. We noted that the witness did not testify to the
specific amounts of drugs each co-defendant sold, nor did the court make specific
findings as to the amount of drugs involved in each transaction or the number of
transactions that occurred. Id. We vacated the district court’s calculation of the
co-defendants’ sentences based on this witness’s testimony because the testimony
was insufficiently specific. Id.
Frazier does not compel us to vacate the district court’s calculation of the
drug quantities attributable to Geoffrey, Nicholas, or Holmes. Unlike in Frazier,
the informants in this case, CI-1 and CI-2, testified to purchasing specific
quantities of drugs from the three defendants over defined periods of time. The
district court in this case thus relied on evidence that was more specific than the
evidence before the district court in Frazier. The appellants’ reliance on Frazier is
therefore misplaced. 4
4
The defendants also rely on United States v. Singleton, 545 F.3d 932 (11th Cir. 2008).
In Singleton, a defendant challenged a district court’s calculation of the drug quantity used to
calculate his sentence. Singleton, 545 F.3d at 934. Law enforcement had found powder cocaine
and baking soda in the defendant’s motel room. Id. at 935. The district court in calculating the
drug quantity attributable to the defendant assumed that all the powder cocaine could be
converted to crack cocaine. Id. We concluded that the district court’s calculation of the drug
quantity was impermissibly speculative because the district court found that law enforcement had
recovered an insufficient amount of baking soda to convert all the powder cocaine to crack
cocaine. Id. Singleton does not disturb our conclusion because it is factually distinct.
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B. The District Court Did Not Err in Applying the Premises Enhancement.
We next discuss the challenges to the district court’s application of the two-
level premises enhancement under U.S.S.G. § 2D1.1(b)(12) brought by Geoffrey
and Holmes. Geoffrey contends that the language of § 2D1.1(b)(12) and the
guidelines’ commentary required the district court to rely on evidence tying him
directly to manufacturing or distributing drugs in or from the houses, rather than
relying on the reasonably foreseeable conduct of co-conspirators. Holmes argues
that the enhancement should not have applied because the River Road house was
primarily used as a residence and only collaterally used for drug sales.
The government responds that Geoffrey’s narrow interpretation of
§ 2D1.1(b)(12) conflicts with the totality-of-the-circumstances approach
articulated by this Court. According to the government, although Geoffrey never
had a possessory interest in the houses, there was ample evidence that he supplied
the drugs that were used there. As an alternative basis for affirming the
enhancement’s application to Geoffrey, the government contends that he
maintained the Vienna Road apartment as a drug premises, as evidenced by his
exclusive control over and possession of the two kitchen cabinets that he used to
store drugs and materials for manufacturing cocaine base. The government further
argues that the § 2D1.1(b)(12) enhancement applied to Holmes because the drug
activity occurring at both houses was more than incidental or collateral.
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We first consider Geoffrey’s argument that the district court erred in
applying the premises enhancement by considering the relevant conduct of other
members of the drug sale conspiracy. The question whether a sentencing court
misapplied the guidelines by enhancing a defendant’s sentence based on the jointly
undertaken criminal activity of a defendant’s co-conspirators involves an
interpretation of the guidelines that we review de novo. United States v. Salgado,
745 F.3d 1135, 1138 (11th Cir. 2014).
Section 2D1.1(b)(12) of the guidelines adds a two-level enhancement “[i]f
the defendant maintained a premises for the purpose of manufacturing or
distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12). In calculating a
defendant’s guideline range, a sentencing court must consider all relevant conduct
in the offense, including in some cases the conduct of others acting in concert with
the defendant. United States v. Chavez, 584 F.3d 1354, 1367-68 (11th Cir. 2009)
(citing U.S.S.G. § 1B1.3(a)(1)). As a general matter, a court considering the
application of an enhancement under chapter two of the guidelines may hold a
defendant accountable for acts and omissions of other participants in a “jointly
undertaken criminal activity,” as long as the others’ conduct was (i) within the
scope of the joint activity, (ii) in furtherance of this criminal activity, and (iii)
reasonably foreseeable in connection with the criminal activity. U.S.S.G.
§ 1B1.3(a)(1)(B). As an exception to this general rule, a sentencing court must not
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enhance a defendant’s sentence based on the jointly undertaken criminal activity of
a defendant’s co-conspirators when a guideline specifies otherwise. Id. § 1B1.3(a).
In determining whether the district court properly applied the premises
enhancement based on the conduct of Geoffrey’s co-conspirators, we are guided by
our decisions in United States v. Cook, 181 F.3d 1232 (11th Cir. 1999), and United
States v. McClain, 252 F.3d 1279 (11th Cir. 2001). In Cook, we considered
whether a sentencing court could enhance the sentences of two co-defendants
pursuant to U.S.S.G. § 3C1.2 based the conduct of other members of the
conspiracy. See Cook, 181 F.3d at 1234. Section 3C1.2 instructed sentencing
courts to apply a two-level enhancement “ ‘[i]f the defendant recklessly created a
substantial risk of death or serious bodily injury to another person in the course of
fleeing from a law enforcement officer.’ ” Id. at 1233 (quoting U.S.S.G. § 3C1.2).
An application note stated that “ ‘[u]nder this section, the defendant is accountable
for his own conduct and for conduct that he aided or abetted, counseled,
commanded, induced, procured, or willfully caused.’ ” Id. at 1233-34 (quoting
§ 3C1.2 cmt. n.5.). We concluded that the application note specified an exception
to the general rule found in § 1B1.3(a)(1)(B). Id. at 1235-36. We reasoned that
“[b]y limiting the responsibility for another’s actions to those instances when the
defendant ‘aided or abetted, counseled, commanded, induced, procured, or
willfully caused’ that person’s conduct, [the application note] establishes an
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exception to the general rule in § 1B1.3(a)(1)(B).” Id. at 1235 (quoting § 3C1.2
cmt. n.5). We thus held that the court could not consider the conduct of others
acting in concert with the defendant to determine whether § 3C1.2’s enhancement
applied. Id. at 1235-36.
In McClain, we considered whether U.S.S.G. § 3B1.4’s enhancement could
be imposed based on the jointly undertaken criminal activity of a defendant’s co-
conspirators. McClain, 252 F.3d at 1287. Section 3B1.4 provides for a two-level
enhancement “ ‘[i]f the defendant used or attempted to use a person less than
eighteen years of age to commit the offense or assist in avoiding detection of, or
apprehension for, the offense.’ ” McClain, 252 F.3d at 1285 (quoting § 3B1.4).
The defendant argued that the enhancement could not apply based on co-
conspirators’ conduct because such a construction would render the enhancement
applicable on a strict-liability basis. See id. at 1287. We held, however, that
§ 3B1.4’s enhancement could properly be imposed based on the jointly undertaken
criminal activity of co-conspirators. Id. at 1288. We reasoned that this
construction of § 3B1.4 would not allow the enhancement to apply on a strict-
liability basis because § 1B1.3(a)(1)(B) allows co-conspirators’ conduct to serve as
the basis for imposing the enhancement only when the co-conspirators’ conduct
was reasonably foreseeable. Id. at 1287-88.
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Nothing in § 2D1.1(b)(12) prohibits a sentencing court from imposing the
premises enhancement based on the jointly undertaken criminal activity of co-
conspirators. Section 2D1.1(b)(12) differs from the guideline provision at issue in
Cook because § 2D1.1(b)(12) lacks an application note limiting the effect of
§ 1B1.3(a)(1)(B).
Geoffrey argues that § 2D1.1(b)(12) cannot be imposed based on the jointly
undertaken criminal activity of a co-conspirator because § 2D1.1(b)(12) explicitly
applies “[i]f the defendant maintained a premises for the purpose of manufacturing
or distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12) (emphasis added).
But McClain implicitly rejected this argument. Section 3B1.4 also applies “[i]f the
defendant” engages in certain conduct, id. § 3B1.4, yet this language was
insufficient for the court to conclude in McClain that § 3B1.4 cannot apply based
on a co-conspirator’s reasonably foreseeable conduct. We therefore conclude that
the district court did not err in imposing the premises enhancement based on the
jointly undertaken criminal activity of co-conspirators.
We next consider Holmes’s argument that the district court should not have
imposed the premises enhancement because the River Road house was primarily
used as a residence and only collaterally used for drug sales. We review a
sentencing court’s factual finding that a defendant maintained a premises for the
manufacture or distribution of drugs for clear error. United States v. George, 872
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F.3d 1197, 1205 (11th Cir. 2017). An application note to § 2D1.1(b)(12) provides
that a sentencing court may impose the premises enhancement if the premises was
used for more than just drug-related activity:
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. In making this determination, the court should consider how
frequently the premises was used by the defendant for manufacturing
or distributing a controlled substance and how frequently the premises
was used by the defendant for lawful purposes.
U.S.S.G. § 2D1.1 cmt. n.17. To determine whether a defendant maintained a
premises for drug distribution or manufacture, [a] sentencing court applies a
totality-of-the-circumstances approach. See George, 872 F.3d at 1205-06.
Here, law enforcement used an informant to purchase crack from Nicholas at
the River Road house twice while Holmes was present. During a search of the
River Road house, the officers recovered two bags of suspected crack cocaine,
several bags of suspected marijuana, a dish with a razor blade, ziplock bags, and
two digital scales. Based on this evidence, the district court did not clearly err in
concluding that drug activity was more than an incidental or collateral use of the
River Road house. See id. at 1206 (concluding that “one of the primary purposes
of [an] apartment was for the distribution of drugs” when someone “purchased
multiple pounds of marijuana” in the apartment and it contained “packaging
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equipment, scales, heat-sealing machines, and firearms”). The district court thus
did not err in imposing the premises enhancement on Holmes.
C. The District Court Did Not Err in Applying the Firearm Enhancement.
Geoffrey argues that the district court erred in applying the firearm
enhancement under U.S.S.G. § 2D1.1(b)(1) because there was no evidence that he
possessed a firearm or that his co-defendants’ firearm possession was reasonably
foreseeable to him. The government responds that multiple guns were found inside
the houses and in the driver’s seat of the car that Geoffrey drove regularly.
According to the government, the informants reported that all three co-defendants
kept firearms nearby during drug exchanges.
The question whether a defendant possessed a firearm within the meaning of
§ 2D1.1(b)(1) is a finding of fact, which we review for clear error. George,
872 F.3d at 1204. Section 2D1.1(b)(1) provides for a two-point enhancement “[i]f
a dangerous weapon (including a firearm) is possessed.” U.S.S.G. § 2D1.1(b)(1).
The firearm enhancement “should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense.” Id.
§ 2D1.1cmt. n.11(A). The firearm enhancement applies “whenever a firearm is
possessed during conduct relevant to the offense of conviction.” United States v.
Smith, 127 F.3d 1388, 1390 (11th Cir. 1997). Further, the enhancement may be
applied to a defendant based on a co-conspirator’s firearm possession if the
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government shows by a preponderance of the evidence that “(1) the possessor of
the firearm was a co-conspirator, (2) the possession was in furtherance of the
conspiracy, (3) the defendant was a member of the conspiracy at the time of
possession, and (4) the co-conspirator possession was reasonably foreseeable by
the defendant.” United States v. Fields, 408 F.3d 1356, 1359 (11th Cir. 2005)
(emphasis and internal quotation marks omitted).
Here, Geoffrey disputes whether possession of firearms by other members of
the jointly undertaken criminal activity was reasonably foreseeable to him. A
search of the River Road house produced two pistols and a twelve-gauge shotgun.
Queener testified that, according to CI-1, Geoffrey was “the brains of the
operation.” Doc. 195 at 156. Queener also testified that Geoffrey would supply
Nicholas and Holmes with crack cocaine at the River Road house. Shannon
McCook, a special agent with the Georgia Bureau of Investigation, testified that
Geoffrey was seen at the River Road house “if not every day, every other day.”
Doc. 195 at 79. On these facts, we conclude that a factfinder could permissibly
conclude that possession of firearms by either Nicholas or Holmes at the River
Road house was reasonably foreseeable to Geoffrey. Therefore the district court
did not clearly err in applying the two-level firearm enhancement to Geoffrey.
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D. The District Court Did Not Clearly Err in Assigning Geoffrey’s
Criminal History Points.
Geoffrey argues that the district court clearly erred in assigning an additional
two criminal history points under U.S.S.G. § 4A1.1(d) because he was released
from his 12-month probation sentence in February 2015 and the instant offense did
not occur until November 3, 2015. The government responds that the district court
correctly added two criminal history points because the record showed that the
ongoing offense conduct occurred before the expiration of Geoffrey’s prior
sentence on February 5, 2015. The government contends the record showed that
CI-2 engaged in several transactions with Geoffrey before that date. Geoffrey and
the government thus agree that he was on probation until February 5, 2015; they
dispute whether any conduct relevant to the offense of conviction occurred before
this date.
Under U.S.S.G. § 4A1.1(d), a defendant receives two criminal history points
if he committed the instant offense while serving a prior sentence, including a
sentence of probation. § 4A1.1(d). Here, the district court did not clearly err in
finding that Geoffrey was serving his prior sentence of probation when he
committed the instant offense. According to Queener, CI-2 stated that Geoffrey
had been selling crack cocaine in roughly one-ounce quantities weekly throughout
2014. As explained above, the district court permissibly considered Queener’s
hearsay testimony relaying CI-2’s account. Therefore, the district court did not
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clearly err in finding that the instant offense occurred while Geoffrey was serving
his prior sentence.
IV. CONCLUSION
We conclude that the district court did not err in calculating Geoffrey’s,
Nicholas’s, and Holmes’s base offense levels. We further conclude that the court
committed no error in applying the premises enhancement to Geoffrey and
Holmes, in applying the firearm enhancement to Geoffrey, or in assigning
Geoffrey two additional criminal history points on the ground that he had been
serving a prior sentence while he committed conduct relevant to his offense of
conviction. We therefore affirm the sentences.
AFFIRMED.
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