United States v. Hubert Messer, 655 F. App'x 956

Messer pled guilty to conspiracy to distribute oxycodone (21 U.S.C. § 846) and possession of stolen firearms (18 U.S.C. §§ 922(j), 924(a)(2)) and was sentenced to 60 months.
Appellate counsel filed an Anders brief raising two sentencing-enhancement issues under the Sentencing Guidelines: § 2D1.1(b)(1) (possession of a dangerous weapon) and § 2D1.1(b)(12) (maintaining a premises for drug distribution).
Messer filed a pro se brief claiming ineffective assistance of plea counsel for failing to challenge the factual basis of the plea, and a pro se motion seeking resentencing based on Amendment 782 and Johnson.
Facts relevant to sentencing: Messer stored at least two stolen handguns and drugs (and drug proceeds) in the same barn; some drug transactions occurred there; the barn also housed horses.
The district court applied both two-level enhancements (§ 2D1.1(b)(1) and § 2D1.1(b)(12)); this court reviewed those applications for clear error and reviewed legal conclusions de novo.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2D1.1(b)(1) firearm enhancement applied	Messer argued the firearms were not connected to his drug trafficking	Government relied on proximity of guns to drugs, type of firearms, and established link between guns and drug activity	Court affirmed enhancement; guns (handguns) stored in same barn as drugs supported connection
Whether § 2D1.1(b)(12) premises-enhancement applied	Messer argued barn's primary purpose was legitimate (housing horses), not drug trafficking	Government pointed to storage of drugs, proceeds, firearms, and occasional transactions in barn showing primary use for trafficking	Court affirmed enhancement; drug storage/transactions showed a primary or co-primary use for distribution
Whether plea counsel was ineffective for not challenging factual basis	Messer argued counsel failed to challenge facts supporting plea	Government/record showed no conclusive record evidence of deficient performance on direct appeal	Claim not cognizable on direct appeal; should be raised under 28 U.S.C. § 2255 if at all
Whether Amendment 782 or Johnson entitled Messer to resentencing	Messer sought resentencing based on Amendment 782 and Johnson	Government maintained neither Amendment 782 nor Johnson applied to afford relief	Motion denied; neither Amendment 782 nor Johnson provided relief

White v. United States, 771 F.3d 225 (4th Cir. 2014) (standard of review for guideline application)
Manigan v. United States, 592 F.3d 621 (4th Cir. 2010) (firearm enhancement burden-shifting and relevant factors)
Easley v. Cromartie, 532 U.S. 234 (2001) (clear-error standard explanation)
Harris v. United States, 128 F.3d 850 (4th Cir. 1997) (upholding enhancement when guns and drugs found in same home)
Bell v. United States, 766 F.3d 634 (6th Cir. 2014) (drug storage and transactions on property usually suffice for premises enhancement)
Sanchez v. United States, 710 F.3d 724 (7th Cir.) (premises can have more than one primary use; inquiry whether drug use was a primary use)
Miller v. United States, 698 F.3d 699 (8th Cir. 2012) (enhancement applies when premises used for substantial trafficking even if also a family home)
Galloway v. United States, 749 F.3d 238 (4th Cir. 2014) (ineffective-assistance claims cognizable on direct appeal only if record conclusively shows ineffectiveness)
Strickland v. Washington, 466 U.S. 668 (1984) (standards for ineffective assistance of counsel)
Johnson v. United States, 135 S. Ct. 2551 (2015) (addressed by Messer but did not afford relief)