United States v. Vinales

22-331-cr
United States v. Vinales
United States Court of Appeals
for the Second Circuit
August Term, 2022
(Submitted: June 28, 2023 Decided: August 29, 2023)
Docket No. 22-331-cr
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v.
BRYAN VINALES, aka TIANO,
Defendant-Appellant.
_____________________________________
Before:
LYNCH, LOHIER, and BIANCO, Circuit Judges.
In this sentencing appeal, Bryan Vinales challenges the District Court’s
application of a two-level enhancement under § 2D1.1(b)(12) of the United States
Sentencing Guidelines, which applies when a defendant has “maintained a
premises for the purpose of manufacturing or distributing a controlled
substance.” U.S.S.G. § 2D1.1(b)(12). The principal question presented is whether
the enhancement applies to defendants who use their personal residence to
manufacture or distribute a controlled substance. Here, Vinales maintained an
apartment where he had at one point lived for the purpose of distributing
controlled substances. We conclude that the commentary to § 2D1.1(b)(12)
supports the enhancement under the facts of this case. Vinales’s other challenges
to his sentence are unavailing. AFFIRMED.
Daniel E. Cummings, Sandra S. Glover, Assistant
United States Attorneys, for Vanessa Roberts Avery,
United States Attorney for the District of Connecticut,
New Haven, CT, for Appellee.
Elizabeth M. Johnson, New York, NY, for Defendant-
Appellant.
PER CURIAM:
Section 2D1.1(b)(12) of the United States Sentencing Guidelines requires 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). The appellant, Bryan Vinales, asks us to consider whether the
enhancement extends to the mixed use of a premise as both a personal residence
and a drug house. We need not do so to resolve this appeal because the record
supports the District Court’s finding that the relevant premises were used by
Vinales “for the purpose of manufacturing or distributing a controlled
substance” after he stopped residing there. Id. Vinales also argues that the
District Court improperly refused to give effect to the parties’ plea agreement by
departing downward from the applicable Guidelines range. We disagree and
conclude that the District Court could impose a sentence within the applicable
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range notwithstanding the parties’ lower Guidelines calculation as reflected in
the agreement. We therefore AFFIRM.
BACKGROUND
The Drug Enforcement Administration (DEA) began investigating a heroin
trafficking ring in Waterbury, Connecticut in 2019. As part of its investigation,
the DEA made six controlled drug buys between February 2020 and June 2020
from Vinales and from a minor working for Vinales. The buys took place at or
outside of an apartment on Willow Street in Waterbury (“the Willow Street
premises”). During each of these buys outside the Willow Street premises, DEA
agents or a confidential source working for the DEA saw Vinales or the minor
enter the apartment after meeting the buyer and before handing them the drugs.
The DEA later determined that Vinales was listed on utility bills as a resident of
the Willow Street premises.
On July 15, 2020, the DEA arrested Vinales at a different address. The
same day, the agency executed a search warrant at the Willow Street premises
and seized a large quantity of a mixture containing fentanyl and a digital scale,
which can be associated with illegal drug trafficking. Vinales admitted that he
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used to live at the Willow Street premises and sold heroin and crack cocaine
from there but explained that he had moved out by the time of his arrest.
Vinales eventually pleaded guilty to conspiracy to sell heroin and fentanyl.
His plea agreement with the Government included a Guidelines estimate of 57 to
71 months’ imprisonment.1 The Probation Office disagreed with the estimate,
pointing to Vinales’s use of the Willow Street premises. It recommended a two-
level enhancement to the offence level under § 2D1.1(b)(12) for “maintain[ing] a
premises for the purpose of manufacturing or distributing a controlled
substance,” which would result instead in a Guidelines range of 70 to 87 months
— higher than the parties’ agreed range.
At sentencing, Vinales argued that the drug-distribution premises
enhancement should not apply because, among other things, he had lived at the
Willow Street premises and no drugs were ever packaged or manufactured there.
The Government agreed, explaining that it did not seek the enhancement
because Vinales had “for a time” lived at the premises and the Government was
not “able to prove by a preponderance that [Vinales] was using [the premises]
exclusively or predominantly for the drug sales.” App’x 92–93.
1Vinales initially argued that he fell within a lower Criminal History Category, resulting
in a shorter Guidelines range. He later conceded otherwise.
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The United States District Court for the District of Connecticut (Bryant, J.)
rejected the parties’ arguments on this point and concluded that the two-level
enhancement applied, yielding a Guidelines range of 70 to 87 months. After
considering the factors listed in 18 U.S.C. § 3553(a), however, the District Court
imposed a non-Guidelines sentence of 60 months’ imprisonment followed by
three years of supervised release. Neither party objected to the sentence
imposed.
DISCUSSION
Both of Vinales’s arguments on appeal challenge his sentence as
procedurally unreasonable. “We review the procedural . . . reasonableness of a
sentence under a deferential abuse-of-discretion standard.” United States v.
Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018). “This standard incorporates de novo
review of questions of law, including our interpretation of the Guidelines, and
clear error review of questions of fact.” Id. “A sentence is procedurally
unreasonable if the district court fails to calculate (or improperly calculates) the
Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory,
fails to consider the § 3553(a) factors, selects a sentence based on clearly
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erroneous facts, or fails adequately to explain the chosen sentence.” United
States v. Singh, 877 F.3d 107, 115 (2d Cir. 2017) (quotation marks omitted).
I
We start with Vinales’s challenge to the District Court’s application of the
drug-distribution premises enhancement under § 2D1.1(b)(12). Vinales
acknowledges that he “maintained” the Willow Street premises, where he had
lived at some point prior to his arrest. But he claims not to have done so “for the
purpose of manufacturing or distributing a controlled substance.”
It is somewhat surprising that we have not directly addressed or
interpreted the drug-distribution premises enhancement under § 2D1.1(b)(12) in
a published opinion. In the absence of any precedent on the issue, we can decide
this case by relying on the commentary in the Guidelines manual that “interprets
or explains” § 2D1.1(b)(12). United States v. Alvarado, 720 F.3d 153, 158 n.2 (2d
Cir. 2013) (quotation marks omitted). That “commentary . . . is authoritative
unless it violates the Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Id. (quotation marks omitted)
Here, the commentary provides as follows:
Manufacturing or distributing a controlled substance
need not be the sole purpose for which the premises was
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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.17.2 As we explain below, the language confirms that the
District Court properly applied the drug-distribution premises enhancement
using a “totality of the circumstances” test, which is appropriate given the fact-
intensive nature of the inquiry. See United States v. Murphy, 901 F.3d 1185, 1191
(10th Cir. 2018); cf. Dish Network Corp. v. DBSD N. Am., Inc. (In re DBSD N.
Am., Inc.), 634 F.3d 79, 105 (2d Cir. 2011) (noting that the resolution of “a fact-
intensive question” should be “based on the totality of the circumstances”).
2
We have applied this commentary in a series of summary orders. In those cases, we
determined that a district court may apply the drug-distribution premises enhancement
based on either, or both, the presence of a large quantity of drugs and drug
paraphernalia or a demonstrated history of prior drug purchases or organizational
meetings at a premises. See United States v. Sampel, 860 F. App’x 789, 792 (2d Cir.
2021), cert. denied 142 S. Ct. 1216 (2022); United States v. Robtoy, 848 F. App’x 53, 54–55
(2d Cir. 2021); United States v. Cedeno-Martinez, 791 F. App'x 272, 276 (2d Cir. 2019);
United States v. Holley, 638 F. App’x 93, 98–99 (2d Cir. 2016). We conversely held in a
summary order that the enhancement does not apply where a defendant
“consummated no drug transactions on the premises” and his “storage” of drugs and
proceeds at the premises “was merely transient,” such as when those materials were
found in clothing. United States v. McDowell, 804 F. App’x 38, 40 (2d Cir. 2020).
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The District Court found that “at the time of [Vinales’s] arrest . . . he was
not living at Willow Street,” App’x 94, and that Vinales admitted to the arresting
officers that he was living elsewhere while “he used the Willow Street address to
sell drugs,” App’x 89. In other words, the District Court explained, Vinales
“didn’t give the [Willow Street] apartment up, he didn’t turn the utilities off, he
continued to sell drugs out of the premises by his own admission.” App’x 94–95.
Vinales’s admission was corroborated: Officers searching the Willow Street
premises on the day of Vinales’s arrest discovered a scale and several hundred
bags of narcotics. On these facts, the District Court determined that a primary or
principal use for the premises while Vinales lived elsewhere before his arrest was
to distribute drugs. App’x 95; U.S.S.G. § 2D1.1 cmt. n.17.
Vinales counters that there was an inadequate factual basis for the
application of the enhancement because the record did not show when Vinales
moved out of the Willow Street premises to a different primary residence. The
Government responds by inviting us to hold, along with our sister circuits, that a
defendant’s use of a premises as a home does not categorically bar application of
the enhancement. See, e.g., United States v. Gardner, 32 F.4th 504, 526 (6th Cir.
2022) (affirming the application of the enhancement where a defendant “used his
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home to receive, weigh, distribute, and cook cocaine”); Murphy, 901 F.3d at 1192(similar); United States v. George, 872 F.3d 1197, 1206 (11th Cir. 2017) (holding
that the enhancement could apply where a witness purchased multiple pounds
of marijuana and another witness saw “packaging equipment, scales, heat-
sealing machines, and firearms” at a defendant’s residence).
We decline the Government’s invitation. Although the rule the
Government and our sister courts espouse makes sense given the fact-intensive
inquiry that § 2D1.1 demands, we can resolve this appeal without it. Vinales
continued to sell drugs from the Willow Street premises even after he moved his
residence to a different location. At that point, the Willow Street premises may
have also been a place for Vinales and others to socialize. But the District Court
could permissibly determine that the Willow Street premises was by then used as
a drug house rather than a residence.
II
Vinales also challenges the District Court’s failure to consider a downward
departure from the Guidelines sentence in order to give effect to the parties’ plea
bargain. He claims that the court evidently misunderstood its authority to do so
under United States v. Fernandez, 877 F.2d 1138, 1144 (2d Cir. 1989). But we
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have held that “[a] district court’s silence concerning its refusal to depart
downward, generally, does not support an inference that the district court
misapprehended its scope of authority.” United States v. Scott, 387 F.3d 139, 143
(2d Cir. 2004). We see (and Vinales points to) nothing else suggesting that the
District Court did not grasp its authority under Fernandez. We therefore reject
Vinales’s argument that his sentence was procedurally unreasonable on this
ground.
CONCLUSION
We have considered Vinales’s remaining arguments and conclude that
they are without merit. For the foregoing reasons, the judgment of the District
Court is AFFIRMED.
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