United States v. Wilson ( 2021 )

Case: 19-11312 Document: 00515693046 Page: 1 Date Filed: 01/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 4, 2021
No. 19-11312 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Murrell Wilson,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-152-1
Before Graves, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Murrell Wilson challenges his 72-month sentence for conspiring to
deal methamphetamine. That sentence is well below his advisory Guidelines
range of 168 to 210 months. Wilson argues he should not have received a
two-point enhancement for maintaining a premises for the purpose of
distributing a controlled substance. See U.S.S.G. § 2D1.1(b)(12). Although
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-11312
removing that enhancement would still have had resulted in a Guidelines
range much higher than the sentence Wilson received, he contends the
reduced range might have led to a lower sentence.
Wilson’s principal argument is that that the district court improperly
applied the “maintaining a premises” enhancement as a matter of relevant
conduct based on the conduct of his co-conspirator who owned the house.
While recognizing that relevant conduct is the default rule for Guidelines
enhancements, see U.S.S.G. § 1B1.3(a), Wilson argues it does not apply to the
premises enhancement because it focuses on the “defendant” rather than
the “offense.” Id. § 2D1.1(b)(12).
We need not decide whether relevant conduct applies to the premises
enhancement. In overruling Wilson’s objection to the enhancement, the
district court did mention the conduct of his co-conspirator. But it also
recited Wilson’s own connections to the house, which would have been
unnecessary if the court were relying solely on relevant conduct in imposing
the enhancement.
We thus consider whether the district court clearly erred in applying
the premises enhancement based on Wilson’s own conduct. United States v.
Guzman-Reyes, 853 F.3d 260, 263 (5th Cir. 2017) (applying clearly erroneous
standard to finding that defendant maintained a premises for purpose of drug
trafficking). Under that standard, we must affirm if the finding is “plausible
in light of the record as a whole.” Id.It was plausible to apply the enhancement. The premises was a stash
house; the only dispute involves Wilson’s role in maintaining it. He had lived
at the home for about a year. He was allowed to live there rent-free in
exchange for distributing narcotics and conducting home repairs. Substantial
amounts of the drugs Wilson dealt were stored at the house. Wilson did not
just deliver the drugs that were stored in the home; he also helped obtain the
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drugs in the first place. In January 2019, for example, he went with his
codefendant to obtain “2 to 3 pounds of methamphetamine.” Given that
Wilson had a role in the drug operation both before and after the drugs would
be stored in the residence, it was reasonable to conclude that he had access
to the drugs when they were in the home even if they were not stored in his
bedroom. Indeed, Wilson did not rebut the statement in the Presentence
Report, which was adopted by the district court, that he had “control and
access to the residence.” The length of his residing in the home and his job
doing home repairs also are at odds with the view that his access and control
were limited to his own bedroom. Wilson’s possession of a firearm in the
home is also consistent with his control over the residence where valuable
drugs and drug proceeds were stored. For these reasons, it was reasonable
for the district court to conclude that Wilson exercised sufficient dominion
and control over the house that was the base for the drug dealing conspiracy
he was part of. U.S.S.G. § 2D1.1(b)(12), note 17.
AFFIRMED.
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James E. Graves, Jr., Circuit Judge, dissenting:
Because I would conclude that the district court clearly erred in
applying the premises enhancement, I respectfully dissent.
Murrell Wilson pleaded guilty to conspiracy to possess with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
and 21 U.S.C. § 846. At the time, Wilson was living with his niece, Shelly
Norrell, and her common-law husband, Anthony Lucio, at Lucio’s house.1
Wilson lived in the home rent-free in exchange for doing remodeling on the
residence and delivering drugs for Lucio. The record does not indicate the
amount of time Wilson spent remodeling the house or how often he delivered
drugs for Lucio. Upon searching the home, authorities discovered 619 grams
of methamphetamine, 1,269 grams of cocaine, three firearms, ammunition, a
digital scale, five cell phones and $13,568 in the bedroom shared by Norrell
and Lucio. Authorities also discovered a handgun in Wilson’s bedroom.2
Wilson’s total offense level of 35 included a two-level increase for
maintaining a premises for the purposes of drug distribution under U.S.S.G.
§ 2D1.1(b)(12). Wilson objected to that enhancement, arguing that the PSR
did not establish that he had a possessory interest in or control over the
house. Further, he argued that the bedroom shared by Lucio and Norrell
should be considered the drug premises because that is where everything was
found, and he had no unrestricted access to that room. Wilson also asserted
1
The majority refers to the premises as a “stash house.” However, the PSR
repeatedly refers to the premises as Lucio’s residence, not a “stash house.” While the
enhancement considerations are similar to those of the “stash house” statute, 21 U.S.C. §
856, that does not make this a “stash house” for purposes of Wilson.
2
The record does not establish that this handgun was in any way connected to drug
activity. Further, the record in no way establishes that the presence of the firearm in
Wilson’s bedroom somehow gave him control over the entire premises.
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that the relevant conduct rule that a defendant is accountable for reasonably
foreseeable conduct of those involved in a jointly undertaken criminal act
does not apply to the drug premises enhancement. The probation officer
argued that the relevant conduct rule does apply, and that the enhancement
was proper because Wilson lived in the house, had unrestricted access to
come and go, and distributed drugs that were stored in Lucio’s room in
exchange for living there.
The district court overruled Wilson’s objection. In doing so, the
district court found that Lucio had control of the premises and that
information in the PSR indicated Wilson had control of the room he was
occupying. The court also concluded that Wilson was entitled to a downward
departure for substantial assistance. The court then sentenced Wilson to a
prison term of 72 months, which was 96 months below the bottom of the
guidelines range of 168-210 months, and three years of supervised release.
Wilson subsequently filed this appeal.
The majority concluded that it need not decide whether relevant
conduct applies to the premises enhancement because, “[i]n overruling
Wilson’s objection to the enhancement, the district court did mention the
conduct of his co-conspirator. But it also recited Wilson’s own connections
to the house, which would have been unnecessary if the court were relying
solely on relevant conduct in imposing the enhancement.” The majority
then concluded that the premises enhancement properly applied based on
Wilson’s own conduct and that it was reasonable for the district court to
conclude that Wilson exercised sufficient dominion and control over the
house. U.S.S.G. § 2D1.1(b)(12), note 17.
However, the majority’s conclusion is contradicted by both the
district court’s own findings and the record. Specifically, the district court
found that “I believe it's clear that co-offender Lucio had control of the premises,
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and the information in the presentence report indicates that [Wilson] had
control of the room he was occupying.” (Emphasis added). There were no drugs
or money found in Wilson’s room. Further, there was no evidence that
Wilson’s room was ever used for the storage or distribution of drugs. As the
district court found, Lucio had control of the premises.
The majority points to Wilson’s statement that he had accompanied
Lucio to obtain methamphetamine in January 2019 as somehow supporting
the conclusion that he had access to and control of the entire home.
However, there is no evidence that Wilson had control over the drugs Lucio
obtained, that Wilson took them back to the residence, that Wilson had
access to them in the home or that Wilson accompanying Lucio outside the
home somehow gave Wilson access to or control over the entire home.
Moreover, the incident in January 2019 occurred shortly before Wilson’s
arrest in February 2019. The fact that Wilson accompanied Lucio shortly
before being arrested in no way establishes that, for the year prior, Wilson
had somehow been maintaining Lucio’s residence for the purposes of drug
distribution. Additionally, the record does not indicate that Wilson dealt
substantial amounts of drugs, as the majority states. The record indicates
that Wilson delivered drugs for Lucio. The record does not specify how often
drugs were delivered or how much. The confiscated drugs were found in the
house, specifically in areas controlled by Lucio. The drugs were not
confiscated from transactions allegedly made by Wilson. The evidence is
insufficient to support the enhancement.
Without the enhancement, the applicable sentencing range would
have been 135-168 months. While that is above the imposed sentence of 72
months, the district court gave no indication that it would have imposed the
same sentence regardless of any error. United States v. Escalante, 933 F.3d
395, 405-06 (5th Cir. 2019). Instead, the district court determined that
Wilson deserved a “significant reduction in your sentence below the bottom
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of the advisory guideline range” based on his lack of criminal history,
substantial assistance to the government and other reasons. There is no
indication that the district court would not have also reduced Wilson’s
sentence under the correct range of 135-168 months.
For these reasons, I would reverse and remand. Thus, I respectfully
dissent.
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