UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AARON WILKIE MURPHY, Defendant - Appellant.
No. 17-5118
United States Court of Appeals, Tenth Circuit
August 24, 2018
PUBLISH
Before TYMKOVICH, Chief Judge, O‘BRIEN, and MATHESON, Circuit Judges.
Submitted on the briefs:*
Virginia L. Grady, Federal Public Defender, and O. Dean Sanderford, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, Colorado, for Defendant - Appellant.
R. Trent Shores, United States Attorney, and Richard M. Cella, Assistant United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See
Aaron Wilkie Murphy is a convicted drug dealer and admitted addict. He used his home for drug-related activity. The only issue is whether that use of his home was enough to warrant an enhancement to his sentence under
I. Background
In late 2015, local law enforcement officers targeted Murphy in an investigation involving the sale of stolen property. They executed a search warrant at his residence in Broken Arrow, Oklahoma, on November 3, 2015. He was not home at the time of the search, which uncovered multiple stolen items as well as 32.5 grams of heroin, $2,391 in cash, digital scales, and a handgun. Officers obtained a warrant for Murphy‘s arrest.
Several weeks later, on November 25, 2015, officers found and arrested Murphy at his residence, which they again searched pursuant to a warrant. In a safe, they found 42.15 grams of heroin and $33,900 in cash, comprised solely of $50 and $100 bills. They also seized 28.55 grams of methamphetamine and multiple stolen items. The state court released Murphy on bond on November 27, 2015.
In January 2016, officers received information from an individual who had been in Murphy‘s residence that approximately one pound of methamphetamine would be found
On February 18, 2016, officers traveled to Murphy‘s residence to execute a search warrant.2 On the way, they found Murphy in his vehicle and arrested him. Inside the vehicle was 118 grams of methamphetamine and his cellular telephone. The telephone contained text messages of drug transactions. The search of his residence revealed, among other things, heroin residue, a bullet proof vest, digital scales with residue, drug paraphernalia, and keys to a storage unit rented by Murphy in which a rifle was later found. Curiously, the state court again released Murphy on bond on March 29, 2016.
On November 22, 2016, officers, with a warrant in hand, searched Murphy‘s residence a fourth time. As they approached the residence, they observed surveillance cameras. Their search of the home revealed a baggie, which turned out to contain heroin,
Murphy was indicted for two counts of possession with intent to distribute heroin (Counts 2 and 5), two counts of possession with intent to distribute methamphetamine (Counts 4 and 6), two counts of being a felon in possession of a firearm (Counts 1 and 7), and one count of possession of a firearm in furtherance of a drug-trafficking crime (Count 3). He pled guilty to all counts except Count 3, which the government dismissed in exchange for his guilty plea.4
The Presentence Investigation Report (PSR), which was based upon the 2016 version of the United States Sentencing Guidelines Manual, concluded the offense
Murphy objected to the
The district judge would have none of it:
In this case, the defendant distributed methamphetamine from his home on at least two occasions. He also used his home for storage of large quantities of methamphetamine and heroin, proceeds obtained from illegal activities, and distribution materials, including digital scales and baggies on at least four occasions when his home was searched by law enforcement.
Further, law enforcement observed the defendant traveling directly from his residence to complete drug transactions also implying ongoing storage at his residence.
[T]he defendant cites two cases in which the court determined that the enhancement was not proper. In United States vs. Job, 851 F.3d, 889, 909, Ninth Circuit, 2017, there was no evidence that the defendant had ever distributed methamphetamine out of his home.
And in U.S. vs. Ortiz, 807 F.Supp.2d, 746, Northern District of Illinois, 2011, the use of the residence to receive a single shipment of drugs was found insufficient to support the enhancement.
The court finds that the actions by the defendant in the instant offense go beyond the actions of the defendants in both Job and Ortiz; therefore, the court finds that the defendant‘s residence was used by the defendant for substantial drug trafficking purposes on an ongoing basis and drug trafficking was a primary use for the premises.
(Supp. R. Vol. 1 at 19-20.) She did decide, however, that a four-level downward departure was appropriate,7 resulting in a total offense level of 23 and an advisory guideline range of 70-87 months. In toto, she sentenced Murphy to 70 months
II. Discussion
Murphy does not quarrel about whether he “maintained” the premises. Instead, he argues his “maintenance” of it was not “for the purpose of manufacturing or distributing a controlled substance.” Because he does not dispute the underlying facts found by the district judge for purposes of this appeal, our review is de novo. See United States v. Cherry, 572 F.3d 829, 831 (10th Cir. 2009) (“We review de novo whether the facts found by the court support the application of the guideline it selected.“).
A. Interpretation of the Guideline
The commentary to
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.
The enhancement clearly contemplates a premises with more than one primary use. Therefore, as Murphy concedes, a multiple use approach is applicable to cases, like this one, where the premises at issue is the defendant‘s home. See United States v. Henderson, 604 F. App‘x 655, 658-59 (10th Cir. 2015) (unpublished) (applying enhancement where defendant used his home to distribute methamphetamine); see also United States v. Bell, 766 F.3d 634, 638 (6th Cir. 2014) (“Living in a residence and cooking drugs in it can both be relevant purposes under the guideline. . . . [P]recedents under the guideline do not carve out residences as safe havens from being drug-production premises.“); United States v. Miller, 698 F.3d 699, 707 (8th Cir. 2012) (“§ 2D1.1(b)(12) applies when a defendant uses the premises for the purpose of substantial drug-trafficking activities, even if the premises was also her family home at the times in question.“). Murphy proposes that when the subject premises is the defendant‘s home, the enhancement applies “only when the defendant pervasively and persistently used his home to further a drug business.” (Appellant‘s Op. Br. at 6.) His proposal finds no support in either the guideline or case law.
The commentary to the guideline requires drug-related activity to be one of the defendant‘s primary uses of the premises. It admits to no exception because the premises
Most people do not occupy their home 100% of the time; they spend much time at work, on vacation, running errands, pursuing social activities, etc. While a home may not be occupied 100% of the time, it is considered to be a home 100% of the time in that it is always available to the owner (or renter), it contains most of the owner‘s possessions, and it is a safe haven. That same reasoning is apt in multiple use situations. Actual drug dealing may not be a constant in a home, but the home may well serve as a safe place to
The commentary does not require a comparison of the frequency of lawful and unlawful activity at the premises. It requires only that a court “consider” such frequency in deciding whether drug-related activities were a primary, rather than incidental, use of the premises.8 While it requires consideration of the frequency of unlawful and lawful activity at the premises, it does not foreclose consideration of other factors. Our case law, and that of other circuits, instructs that for drug-related activity to constitute a primary use of the residence, it must not only be frequent but also substantial. Henderson, 604 F. App‘x at 659 (“[A]lthough the premises was used as a residence, the drug trafficking activities were frequent and substantial enough to warrant the enhancement.“); see also Contreras, 874 F.3d at 284 (“Instead of merely weighing the amount of legal activity against the illegal activity, the sentencing court should focus on both the frequency and significance of the illicit activities . . . .“); Bell, 766 F.3d at 637
A totality of the circumstances assessment includes: (1) the frequency and number of drugs sales occurring at the home; (2) the quantities of drugs bought, sold, manufactured, or stored in the home; (3) whether drug proceeds, employees, customers, and tools of the drug trade (firearms, digital scales, laboratory equipment, and packaging materials) are present in the home, and (4) the significance of the premises to the drug venture. See Henderson, 604 F. App‘x at 658; United States v. Verners, 53 F.3d 291, 296-97 (10th Cir. 1995);9 see also Contreras, 874 F.3d at 284-85; United States v.
Murphy objects, proposing his “pervasive and persistent” test is necessary because anything less “could lead to . . . application [of the enhancement] in nearly all cases under
Drug dealers and manufacturers invariably maintain a supply of drugs. And even those who do not always keep drugs in their own home will likely do so at least sometimes. To construe the [enhancement] to apply to episodic use of a home for drug-related purposes would effectively transform the provision from [one] intended to apply only in cases with a certain aggravating feature into a provision that elevates the offense level in nearly all
§ 2D1.1 cases.
(Id.) But looking to both the size and the scope of the drug-related use of the home alleviates this concern. It ensures the enhancement will not apply when that use is truly “incidental.”
That said and as we will now explain, Murphy‘s global concern is unwarranted here. His drug-related use of his home was chronic, not merely episodic, and even seemingly paltry amounts10 gain significance over time.
B. Application of the Guideline
maintain[ing] any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance.” Because we have interpreted the statute similar to the guideline, we find Verner‘s discussion of
Murphy admitted to having received and distributed pound quantities of methamphetamine and several ounces of heroin at one time. Consistent with his admissions, distribution quantities of heroin and methamphetamine were found in his home in November 2015 and one pound of methamphetamine was present in his home in January 2016. In February 2016, he was found in his vehicle “near his home” with a large quantity of methamphetamine, and in early 2016, he was observed selling methamphetamine in the parking lot of a “local” gym. (Supp. R. Vol. 2 at 5-6.) A reasonable inference from this evidence is that the methamphetamine found in his vehicle and sold in the parking lot was initially stored in and passed through his home, with his vehicle being the means by which he distributed drugs. Moreover, one or more tools of the drug trade (firearms, digital scales, bullet proof vest, baggies, and surveillance cameras) were found in all but one search of his residence. On two of those occasions, a large amount of cash was also found. Murphy also conducted at least two drug sales in his home.
Any totality of the circumstances evaluation admits to, perhaps demands, reasonable inferences if drawn from known facts or common sense. Based on the amount
Citing no legal authority, Murphy claims we cannot rely on his admissions, the one pound of methamphetamine in his home in January 2016, or the surveillance cameras because the judge did not rely on them. But the judge found Murphy “used his home for storage of large quantities of methamphetamine . . . . on at least four occasions.” (Supp. R. Vol. 1 at 8-9 (emphasis added).) This finding does not preclude consideration of the one pound of methamphetamine in his home in January 2016. Nevertheless, the judge‘s failure to explicitly mention any of these items does not preclude us from relying on them. See United States v. Pulham, F. App‘x ---, No. 16-8019, 2018 WL 2374704, at *7-8 (10th Cir. May 24, 2018) (unpublished) (rejecting defendant‘s argument that we are legally precluded from considering certain facts in the sentencing record because the judge did not make specific findings adopting those facts in applying an enhancement);
Murphy conveniently admits to being a methamphetamine addict and offers his addiction as an explanation for many of the drugs and associated paraphernalia uncovered in his home or otherwise under his control. He also claims the evidence shows only that he stored drugs at his house for a short period of time. After all, he tells us, only two of the four searches of his residence (the November 3 and November 25, 2015 searches) uncovered distribution quantities of drugs or significant amounts of cash. And those searches occurred within weeks of each other. The next two searches turned up “only piddling amounts.” (Appellant‘s Reply Br. at 7.) But this argument ignores both his 1221, 1229 (10th Cir. 2013). The one pound of methamphetamine officers learned to be in his home is consistent with his admissions that he distributed methamphetamine and would receive it in one pound quantities.
He offers innocent explanations for the presence of digital scales, baggies, and surveillance cameras found in his residence. He claims digital scales can be used for personal use and he admitted he was a drug user. Similarly, empty baggies have legitimate purposes. And “just because [he] sometimes used baggies for drugs does not mean that the empty ones . . . were also intended to be used for drugs. [E]ven if they were, the [PSR] does not reveal how many empty baggies were found. Only a lot of baggies would be indicative of drug dealing.” (Appellant‘s Reply Br. at 6.) Finally, he tells us surveillance cameras are not necessarily tools of the drug trade. He says “[m]ethamphetamine users are often paranoid, and Mr. Murphy had been using [methamphetamine] on a daily basis.” (Appellant‘s Op. Br. at 13.)
The Supreme Court has rejected such “divide-and-conquer” approach in evaluating the totality of the circumstances. See United States v. Arvizu, 534 U.S. 266, 274 (2002) (whether reasonable suspicion exists to support a traffic stop must be based
Finally, Murphy argues many of the facts we and other circuits have found to support the enhancement are not present here. For instance, in Henderson, police officers surveilled the defendant‘s house for 5-6 months and observed multiple parties entering and exiting his residence in a manner they believed to be consistent with drug-trafficking activity. Id. at 656, 658. And a confidential informant made several controlled drug purchases from the defendant at or near his residence. Id. In United States v. Winfield, an informant bought drugs from the defendant at his residence four times in a twelve week period; each time the informant observed drugs and drug paraphernalia in the home. 846 F.3d 241, 243 (7th Cir. 2018). A subsequent search of
But “[w]hat is sufficient is not always necessary. That courts have found some facts sufficient to establish [that drug-related activity was a primary use of a premise] does not mean that those facts necessarily must be shown in every case.” Bell, 766 F.3d at 637-38 (quotation marks omitted). So too here. The enhancement was warranted in Henderson and Winfield due to the frequent and substantial drug sales and storage occurring in the defendants’ residences. The enhancement in this case was warranted because Murphy‘s use of his home to store drugs for the purpose of distribution was both frequent and substantial.
AFFIRMED.
Notes
Moreover, Murphy never objected in the district court to the reliability of the source of the information concerning the one pound of methamphetamine. Our review is for plain error. Murphy‘s failure to request plain error review on appeal, either in his opening or reply brief, “‘surely marks the end of the road for an argument for reversal not first presented to the district court.‘” United States v. Lamirand, 669 F.3d 1091, 1098 n.7 (10th Cir. 2012) (quoting Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011)); cf. United States v. Courtney, 816 F.3d 681, 684 (10th Cir. 2016) (reviewing argument for plain error in criminal appeal where appellant “argued plain error fully in his reply brief“). In any event, “in determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. Any information may be considered, so long as it has sufficient indicia of reliability to support its probable accuracy.” See