United States v. Damian Lemont Hepburn

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 3, 2019
• Docket: 18-15300
• Status: Unpublished

Opinion

Case: 18-15300 Date Filed: 09/03/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15300 Non-Argument Calendar ________________________

D.C. Docket No. 3:18-cr-00059-RV-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAMIAN LEMONT HEPBURN, a.k.a. Anthony,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(September 3, 2019)

Before TJOFLAT, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

Damian Hepburn appeals his 188-month sentence imposed after he pled guilty to

one count of conspiracy to distribute and possess with intent to distribute hydromorphone Case: 18-15300 Date Filed: 09/03/2019 Page: 2 of 3

and oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 846, and two

counts of distribution of hydromorphone, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C). On appeal, he contends that the district court clearly erred in applying a two-

level enhancement, under U.S.S.G. § 2D1.1(b)(12), for maintaining premises for the

purpose of manufacturing or distributing controlled substances.

Where the district court determines that a defendant maintained a property for the

manufacture or distribution of drugs, we review that determination as a finding of fact

under the clear error standard. See United States v. George, 872 F.3d 1197, 1205–06 (11th

Cir. 2017). We will not reverse such a finding unless we are left with the “definite and

firm conviction that a mistaken has been committed.” United States v. Crawford, 407 F.3d

1174, 1177 (11th Cir. 2005).

As relevant here, § 2D1.1(b)(12) of the Guidelines adds a two-level enhancement

“[i]f the defendant maintained a premises for the purpose of manufacturing or distributing

a controlled substance,” including storage of a controlled substance for the purposes of

distribution. U.S.S.G. § 2D1.1(b)(12). The application note to § 2D1.1(b)(12) provides

that the court should consider “whether the defendant held a possessory interest in (e.g.,

owned or rented) the premises” and “the extent to which the defendant controlled access

to, or activities at, the premises.” § 2D1.1, cmt. (n.17). The application note further states

that

[m]anufacturing 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 2 Case: 18-15300 Date Filed: 09/03/2019 Page: 3 of 3

used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes.

Id.

Here, the district court did not clearly err by applying the two-level enhancement.

The evidence showed that Mr. Hepburn had a possessory interest in the hotel rooms and

controlled who came to his hotel room and what activities went on there. Further, the

evidence raised a reasonable inference that he frequently used the premises for drug

distribution. He frequently traveled to Destin, Florida, specifically to sell drugs, notified

his clients when he was in town, invited them to his hotel room, and, on two occasions,

sold drugs to law enforcement in controlled buys in his hotel room.

Further, investigators observed people entering and exiting Mr. Hepburn’s hotel

room “in a manner indicative of drug trafficking” while conducting surveillance. And a

confidential informant stated that people seeking to purchase drugs from Mr. Hepburn did

so in his hotel room. Indeed, one of the controlled buys was interrupted by an individual

arriving to purchase pills from Mr. Hepburn. There was also testimony that Mr. Hepburn

did not leave his hotel room to conduct drug transactions.

Based on the totality of the evidence, we conclude that the district court did not

clearly err in determining that one of the primary uses of Mr. Hepburn’s hotel room was

drug distribution. Accordingly, we affirm.

AFFIRMED.