UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-4576
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRUCE CLARK GILLESPIE,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Anderson. Timothy M. Cain, District Judge. (8:16-cr-00297-TMC-1)
Submitted: March 22, 2018 Decided: March 29, 2018
Before GREGORY, Chief Judge, and WYNN and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Jamie L. Schoen, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Bruce Gillespie appeals from his conviction and 151-month sentence entered
pursuant to his guilty plea to possession of methamphetamine with intent to distribute.
On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), averring that there are no meritorious issues for appeal but questioning whether
Gillespie’s sentence was properly enhanced for maintaining a premises for drug
trafficking purposes and whether Gillespie’s sentence was substantively reasonable.
Neither the Government nor Gillespie has filed a brief. We affirm.
Counsel first argues that the district court erred in enhancing his sentence for
“maintain[ing] a premises for the purpose of manufacturing or distributing a controlled
substance . . . .” U.S. Sentencing Guidelines Manual § 2D1.1(b)(12) (2012).
Specifically, counsel avers that the presentence report (PSR) only stated that two
controlled buys took place in Gillespie’s home and that these two sales alone were
insufficient to support an enhancement. However, counsel concludes that any error
would be harmless given the court’s stated alternative sentence.
Section 2D1.1(b)(12) “applies to a defendant who knowingly maintains a premises
. . . for the purpose of manufacturing or distributing a controlled substance, including
storage of a controlled substance for the purpose of distribution.” USSG § 2D1.1 cmt.
n.17. The Guideline applies to buildings used for other purposes, so long as the drug
activity was one of the “primary” purposes. See 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
2 residences as safe havens from being drug-production premises.”); United States v.
Sanchez, 710 F.3d 724, 729 (7th Cir. 2013) (“[T]he enhancement clearly contemplates
that premises can have more than one principal use. . . . [T]he proper inquiry is whether
the drug transactions were a second primary use of the premises or were instead merely a
collateral use.”), rev’d on other grounds, 134 S. Ct. 146 (2013); United States v. Miller,
698 F.3d 699, 707 (8th Cir. 2012) (holding enhancement 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”).
We find that the district court did not err in concluding that one of the primary
purposes of Gillespie’s residence was drug storage, distribution, and manufacturing. As
counsel correctly points out, the PSR does not explicitly specify that the bulk of the drug
trafficking took place at the residence. However, the Government stated at sentencing
that Gillespie’s home was, indeed, the location of the trafficking. The probation officer
also informed the court that Gillespie’s drug transactions historically took place in his
residence. Gillespie’s counsel, in response, did not dispute the location of the
transactions; instead, Gillespie argued that, because “in virtually every case” transactions
occur out of the seller’s home, such should not be the basis for an enhancement. Further,
while counsel challenged the enhancement on the basis that the lab found on premises
was not “active,” counsel did not challenge the other basis for the enhancement, which
was that the property was used to store and sell methamphetamine. Given the failure to
dispute at sentencing that the bulk of Gillespie’s drug transactions took place in his home
and given that Gillespie distributed large quantities of methamphetamine over a period of
3 numerous months, stored drugs at his home, and had a lab on the premises, * the district
court did not err in enhancing Gillespie’s sentence under § 2D1.1(b)(12).
Counsel next argues that the district court substantively erred by failing to
consider Gillespie’s good works in the neighborhood and support of his neighbors and
friends. We review the district court’s sentence, “whether inside, just outside, or
significantly outside the Guidelines range,” under a “deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In conducting this review, we
first ensure “that the district court committed no significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [2012] factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. at 51. “When rendering a sentence, the district court must make an
individualized assessment based on the facts presented,” applying the “relevant § 3553(a)
factors to the specific circumstances of the case before it.” United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted). The
court must also “state in open court the particular reasons supporting its chosen sentence”
and “set forth enough to satisfy” this court that it has “considered the parties’ arguments
and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Id.
(internal quotation marks omitted).
* We recognize Gillespie’s undisputed argument below that the lab was not active at the time of the execution of the search warrant. Nonetheless, the lab was still relevant as it contained products for the manufacture of methamphetamine.
4 If the sentence is free from procedural error, we then review it for substantive
reasonableness. Gall, 552 U.S. at 51. “Substantive reasonableness review entails taking
into account the ‘totality of the circumstances, including the extent of any variance from
the Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007)
(quoting Gall, 552 U.S. at 51). Even if this Court would have imposed a different
sentence, “this fact alone is ‘insufficient to justify reversal of the district court.’” Id. at
474 (quoting Gall, 552 U.S. at 51). We apply a presumption on appeal that a sentence
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-4576
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRUCE CLARK GILLESPIE,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Anderson. Timothy M. Cain, District Judge. (8:16-cr-00297-TMC-1)
Submitted: March 22, 2018 Decided: March 29, 2018
Before GREGORY, Chief Judge, and WYNN and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Jamie L. Schoen, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Bruce Gillespie appeals from his conviction and 151-month sentence entered
pursuant to his guilty plea to possession of methamphetamine with intent to distribute.
On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), averring that there are no meritorious issues for appeal but questioning whether
Gillespie’s sentence was properly enhanced for maintaining a premises for drug
trafficking purposes and whether Gillespie’s sentence was substantively reasonable.
Neither the Government nor Gillespie has filed a brief. We affirm.
Counsel first argues that the district court erred in enhancing his sentence for
“maintain[ing] a premises for the purpose of manufacturing or distributing a controlled
substance . . . .” U.S. Sentencing Guidelines Manual § 2D1.1(b)(12) (2012).
Specifically, counsel avers that the presentence report (PSR) only stated that two
controlled buys took place in Gillespie’s home and that these two sales alone were
insufficient to support an enhancement. However, counsel concludes that any error
would be harmless given the court’s stated alternative sentence.
Section 2D1.1(b)(12) “applies to a defendant who knowingly maintains a premises
. . . for the purpose of manufacturing or distributing a controlled substance, including
storage of a controlled substance for the purpose of distribution.” USSG § 2D1.1 cmt.
n.17. The Guideline applies to buildings used for other purposes, so long as the drug
activity was one of the “primary” purposes. See 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
2 residences as safe havens from being drug-production premises.”); United States v.
Sanchez, 710 F.3d 724, 729 (7th Cir. 2013) (“[T]he enhancement clearly contemplates
that premises can have more than one principal use. . . . [T]he proper inquiry is whether
the drug transactions were a second primary use of the premises or were instead merely a
collateral use.”), rev’d on other grounds, 134 S. Ct. 146 (2013); United States v. Miller,
698 F.3d 699, 707 (8th Cir. 2012) (holding enhancement 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”).
We find that the district court did not err in concluding that one of the primary
purposes of Gillespie’s residence was drug storage, distribution, and manufacturing. As
counsel correctly points out, the PSR does not explicitly specify that the bulk of the drug
trafficking took place at the residence. However, the Government stated at sentencing
that Gillespie’s home was, indeed, the location of the trafficking. The probation officer
also informed the court that Gillespie’s drug transactions historically took place in his
residence. Gillespie’s counsel, in response, did not dispute the location of the
transactions; instead, Gillespie argued that, because “in virtually every case” transactions
occur out of the seller’s home, such should not be the basis for an enhancement. Further,
while counsel challenged the enhancement on the basis that the lab found on premises
was not “active,” counsel did not challenge the other basis for the enhancement, which
was that the property was used to store and sell methamphetamine. Given the failure to
dispute at sentencing that the bulk of Gillespie’s drug transactions took place in his home
and given that Gillespie distributed large quantities of methamphetamine over a period of
3 numerous months, stored drugs at his home, and had a lab on the premises, * the district
court did not err in enhancing Gillespie’s sentence under § 2D1.1(b)(12).
Counsel next argues that the district court substantively erred by failing to
consider Gillespie’s good works in the neighborhood and support of his neighbors and
friends. We review the district court’s sentence, “whether inside, just outside, or
significantly outside the Guidelines range,” under a “deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In conducting this review, we
first ensure “that the district court committed no significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [2012] factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. at 51. “When rendering a sentence, the district court must make an
individualized assessment based on the facts presented,” applying the “relevant § 3553(a)
factors to the specific circumstances of the case before it.” United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted). The
court must also “state in open court the particular reasons supporting its chosen sentence”
and “set forth enough to satisfy” this court that it has “considered the parties’ arguments
and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Id.
(internal quotation marks omitted).
* We recognize Gillespie’s undisputed argument below that the lab was not active at the time of the execution of the search warrant. Nonetheless, the lab was still relevant as it contained products for the manufacture of methamphetamine.
4 If the sentence is free from procedural error, we then review it for substantive
reasonableness. Gall, 552 U.S. at 51. “Substantive reasonableness review entails taking
into account the ‘totality of the circumstances, including the extent of any variance from
the Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007)
(quoting Gall, 552 U.S. at 51). Even if this Court would have imposed a different
sentence, “this fact alone is ‘insufficient to justify reversal of the district court.’” Id. at
474 (quoting Gall, 552 U.S. at 51). We apply a presumption on appeal that a sentence
within or below a properly calculated Guidelines range is substantively reasonable.
United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Here, the district court properly calculated and considered the applicable
Guidelines range and heard argument from counsel and allocution from Gillespie.
Although the PSR, which the court adopted, calculated a higher sentencing range, the
court adopted the stipulations in the plea agreement and applied a lower range. In
imposing the sentence, the court explicitly considered the majority of the statutory
factors, including the circumstances of the crime, deterrence and just punishment. The
court was particularly concerned about the seriousness of the crime and referred to the
destructive nature of methamphetamine to individuals, family, and society. While the
court did not specifically mention that Gillespie had been helpful and supportive to his
neighbors and friends, the court did acknowledge his educational background, his age,
and his employment history.
While the district court did not directly address every fact raised by Gillespie, we
find that the court’s detailed reasoning did not contain procedural error. See United
5 States v. Helton, 782 F.3d 148, 154 (4th Cir. 2015) (“To require more explanation would
unnecessarily intrude upon the district court’s primary and unique role in the sentencing
process.”). Further, while Gillespie contends that his sentence was substantively
unreasonable because the district court relied too heavily on his criminal history, the
record shows that the court also considered the nature and circumstances of Gillespie’s
very serious crimes, the need to protect society, and other factors. Moreover, the court
rejected the PSR’s recommendation for an upward departure and, in fact, applied the
lower stipulated Guidelines range, despite the fact that the drugs involved in the offense
would have supported a higher base offense level. Thus, Gillespie’s sentence was
substantively reasonable. See id. at 155 (“It would be almost unprecedented to credit a
defendant’s challenge to a sentence as substantively unreasonable when the district court
actually reduced the term of imprisonment below the recommended Guidelines range.”).
In accordance with Anders, we have reviewed the record in this case and have
found no meritorious issues for appeal. We therefore affirm the district court’s judgment.
This Court requires that counsel inform Gillespie, in writing, of his right to petition the
Supreme Court of the United States for further review. If Gillespie requests that a
petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this Court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Gillespie. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this Court and argument would not aid the decisional process.
AFFIRMED