United States Court of Appeals For the First Circuit
No. 21-1688
UNITED STATES OF AMERICA,
Appellee,
v.
ANDY MELENDEZ-ROSADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Gelpí, Selya, and Thompson, Circuit Judges.
Allan Amir Rivera-Fernández on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Maarja T. Luhtaru, Assistant United States Attorney, on brief for appellee.
January 9, 2023 SELYA, Circuit Judge. This sentencing appeal presents
an issue of first impression in this circuit: may the so-called
stash-house enhancement, see USSG §2D1.1(b)(12), be imposed in
circumstances in which a particular dwelling is both the residence
of the defendant and his family and a place where drug-distribution
activities regularly occur? We answer this question in the
affirmative, concluding that a particular premises may have more
than one principal use. To complete our task, we uphold the
district court's factual findings, dispose of the defendant's
other claims of error, and affirm the challenged sentence.
I
We briefly rehearse the relevant facts and travel of the
case. "Where, as here, a sentencing appeal follows a guilty plea,
we glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the record of the disposition hearing." United States
v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).
In June of 2020, Puerto Rico police officers began
investigating possible drug-related activity at the Los Mirtos
Public Housing Project in Carolina, Puerto Rico. This
investigation was sparked by information provided by a
confidential informant. According to the informant, the person
living in Unit 97 was selling drugs for defendant-appellant Andy
Melendez-Rosado (who lived in Unit 85).
- 2 - On July 2, the officers observed an individual receiving
a fanny pack on the balcony of Unit 85. That individual then
carried out two suspected drug sales: one on his way to Unit 97
and another on the balcony of Unit 97. The next day, a suspected
drug user went to Unit 97 and gave an adult occupant cash. The
occupant asked that person to wait, went to the balcony of Unit
85, interacted there with an unidentified person, received a bag,
and returned to Unit 97 to complete a drug sale.
About a week later, the officers executed a search
warrant for Unit 85. The defendant lived in the unit with two of
his children, and the three of them (along with two other children)
were on the premises at the time of the search. The officers saw
crack cocaine on a kitchen counter and in a cooking strainer. They
found two sets of scales and a black bag containing (among other
things) heroin, drug paraphernalia, and plastic baggies of the
sort used to package drugs. They also found $705 in cash. In the
bathroom, the officers discovered three magazines fully loaded
with .40-caliber ammunition. In one bedroom, they turned up
baggies containing heroin and fentanyl. And in another bedroom,
they turned up a .40-caliber firearm equipped with a full magazine.
The total drugs seized included 682 baggies of heroin, two bags of
crack cocaine, two bags of marijuana, and a quantity of fentanyl.
After waiving his Miranda rights, see Miranda v.
Arizona, 384 U.S. 436, 444-45 (1966), the defendant admitted owning
- 3 - both the drugs and the firearm seized during the search. What is
more, he admitted that he controlled a drug point and that he
possessed the firearm in furtherance of his drug-related
activities.
The seized drugs were tested and weighed. The drug
quantities amounted to 43.2 grams of heroin, 30.4 grams of crack
cocaine, 67.47 grams of fentanyl, and 31.11 grams of marijuana.
In due course, a federal grand jury sitting in the
District of Puerto Rico returned a five-count indictment, which
charged the defendant with possession with intent to distribute
marijuana (count 1), see 21 U.S.C. § 841(a)(1); possession with
intent to distribute cocaine base (count 2), see id.; possession
with intent to distribute heroin (count 3), see id.; possession of
a firearm in furtherance of a drug trafficking crime (count 4),
see 18 U.S.C. § 924(c)(1)(A); and possession of a firearm and
ammunition as a convicted felon (count 5), see id. § 922(g)(1).
Although the defendant initially maintained his innocence, he
later entered into a plea agreement with the government and pleaded
guilty to counts 2 and 4.
After accepting his guilty plea, the district court
ordered the preparation of a PSI Report. When received, the PSI
Report recommended, as relevant here, a two-level stash-house
enhancement for "maintain[ing] a premises for the purpose of
manufacturing or distributing a controlled substance." USSG
- 4 - §2D1.1(b)(12). The defendant objected to this enhancement because
it was based on "[a]n assumption" and lacking in factual support.
The probation office held firm: although it
acknowledged that the defendant and his family had lived in Unit
85 for about a year, it noted various facts linking Unit 85 to the
drug-distribution business. Among other things, surveillance
records showed that an individual had gone to the defendant's
apartment (Unit 85) "and received drugs for further
sale/distribution"; a lawful search of the apartment disclosed
that the defendant had significant quantities of drugs and drug
paraphernalia, along with a firearm; and the defendant himself had
"admitted [that] he control[led] a drug point."
The PSI Report also attributed a criminal history score
of six points to the defendant, which placed him in criminal
history category (CHC) III. The defendant objected to this score,
challenging the attribution of a single criminal history point for
a 2012 arrest for possession of cocaine with intent to distribute.
The defendant claimed that he had successfully completed a
diversionary program and that there had been no admission of guilt.
Once again, the probation office disagreed with the defendant's
objection, asserting that it had secured documentary proof to the
effect that "the defendant entered a plea of guilty on January 23,
2013."
- 5 - Once the dust had settled, the probation office compiled
an amended PSI Report and recommended a total offense level of
twenty-seven and a CHC of III. These recommendations yielded a
guideline sentencing range of eighty-seven to 108 months for count
2. The guideline sentencing range for count 4 was sixty months —
the statutory mandatory minimum. See 18 U.S.C. § 924(c)(1)(A)(i).
Additionally, the probation office cautioned that the sentence on
count 4 had to be imposed to run consecutively to the sentence on
count 2. See id. § 924(c)(1)(D)(ii).
At the disposition hearing, defense counsel sought a
sentence of sixty months on count 2, to be followed by a
consecutive sentence of sixty months on count 4. The government
joined this recommendation (as it had promised to do in the plea
agreement). After hearing the arguments of counsel and the
defendant's allocution, the district court adopted the guideline
calculations limned in the amended PSI Report. The court then
turned to the sentencing factors adumbrated in 18 U.S.C. § 3553(a).
The court considered, among other things, the defendant's age,
education, employment, history of marijuana use, and offense
conduct.
In the end, the court determined that an eighty-seven-
month term of immurement on count 2, followed by a sixty-month
term of immurement on count 4, comprised the appropriate sentence.
- 6 - The court imposed that sentence and dismissed the remaining counts.
This timely appeal ensued.
II
"Appellate review of claims of sentencing error entails
a two-step pavane." United States v. Matos-de-Jesús, 856 F.3d
174, 177 (1st Cir. 2017). Under this bifurcated framework, we
first assay any claims of procedural error. See id. If the
sentence passes procedural muster, we then assay any claim of
substantive unreasonableness. See id.
At both steps of this pavane, "we review preserved claims
of error for abuse of discretion." United States v. Rivera-
Morales, 961 F.3d 1, 15 (1st Cir. 2020). "The abuse-of-discretion
standard is not monolithic: within it, we review the sentencing
court's findings of fact for clear error and questions of
law . . . de novo." Id.
A
We start with the defendant's claims of procedural
error. The first such claim targets the district court's
deployment of the two-level stash-house enhancement. See USSG
§2D1.1(b)(12). Although the parties quibble over whether this
claim of error was appropriately raised below, we need not resolve
that disagreement. Instead, we assume — favorably to the defendant
— that the claim was preserved and that review is therefore for
abuse of discretion.
- 7 - The stash-house enhancement provides that a defendant's
base offense level shall be increased by two levels "[i]f the
defendant maintained a premises for the purpose of manufacturing
or distributing a controlled substance." Id. An application note
explains that this enhancement "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 application note further explains
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." Id.
Here, the defendant does not seriously contest that he
maintained the premises (that is, the apartment). Nor could he:
the record is pellucid that the defendant rented the apartment
(Unit 85) and resided in it with his two children. Moreover, he
conceded that he owned numerous items of personal property kept in
the apartment (such as the drugs, the drug paraphernalia, the
firearm, and the ammunition). A defendant who — like this
defendant — occupies and controls a particular premises for a
significant period of time maintains those premises within the
- 8 - meaning of the stash-house enhancement. See United States v. Soto-
Villar, 40 F.4th 27, 35-36 (1st Cir. 2022).
Even so, the defendant hotly contests whether he
maintained the apartment "for the purpose of manufacturing or
distributing a controlled substance." The principal use of the
apartment, he asserts, was as a familial residence.
The baseline understanding upon which this argument
rests is faulty. The argument assumes that there is only one
primary or principal use for a premises. The application note,
however, does not set up an either/or proposition. Rather, it
speaks in terms of "one of the defendant's primary or principal
uses." USSG §2D1.1, cmt. n.17 (emphasis supplied). That language
unmistakably signifies that there may be more than one primary or
principal use for a premises. See United States v. Galicia, 983
F.3d 842, 844 (5th Cir. 2020); United States v. Sanchez, 710 F.3d
724, 729 (7th Cir.), vacated on other grounds, 134 S. Ct. 146
(2013). Consequently, a premises that principally serves as a
family residence may also principally serve as a site for the
manufacturing or distribution of a controlled substance.
In concluding that a premises may have two or more
primary or principal uses — for example, as a family residence and
as a drug distribution facility — we do not write on a pristine
page. Other courts have held that the stash-house enhancement is
applicable because a premises has principal uses both as a
- 9 - residence and as a site for the distribution of drugs. See, e.g.,
Galicia, 983 F.3d at 844; United States v. Lozano, 921 F.3d 942,
946 (10th Cir. 2019); Sanchez, 710 F.3d at 729-30; United States
v. Miller, 698 F.3d 699, 707 (8th Cir. 2012). Seen in this light,
the question before us reduces to whether it was appropriate for
the district court to find that distributing controlled substances
was a principal use of the defendant's apartment.
Whether the distribution of controlled substances
constitutes a principal use of a premises is a fact-sensitive
question. Ordinarily, the answer to this question "may be inferred
from the totality of the circumstances." United States v. Jones,
778 F.3d 375, 385 (1st Cir. 2015). Pertinent circumstances
typically include the activities observed, the quantity of drugs
discovered, and the presence or absence of drug paraphernalia and
tools of the trade. See id. Relatedly, application note 17
suggests consideration of "how frequently the premises was used by
the defendant for . . . distributing a controlled substance and
how frequently the premises was used by the defendant for lawful
purposes."1 USSG §2D1.1, cmt. n.17.
1 Like the Eighth Circuit, we are "somewhat baffled" by the application note's instruction to compare the frequency of lawful and unlawful uses when the particular premises is the defendant's residence. Miller, 698 F.3d at 707. As the Eighth Circuit observed "[w]hen the premises in question [i]s the defendant's family home, by definition it [i]s used for that lawful purpose 100% of the time." Id. For this reason, the Eighth Circuit gives greater weight to other factors (such as the type of activities
- 10 - In the case at hand, the district court's factfinding
(including its adoption of the PSI Report's account of the offense
of conviction) convincingly established that a principal use of
the apartment was for the distribution of drugs. The court noted
that a search of the apartment revealed, among other things,
quantities of heroin, cocaine, fentanyl, and marijuana. These
quantities included a retail-sized inventory of heroin: 682
baggies. Moreover, the search revealed crack cocaine being cooked
in the kitchen, an abundance of drug paraphernalia (including two
sets of scales and a pile of plastic baggies), and a sizeable
amount of cash. Then, too, the search turned up a fully loaded
firearm, widely regarded as a tool of the drug-distribution trade.
See United States v. Ramirez-Frechel, 23 F.4th 69, 75 (1st Cir.),
cert. denied, 142 S. Ct. 2828 (2022). Relatedly, the search
yielded three loaded magazines.
The district court's finding that one of the principal
uses of the apartment was as a site for the distribution of drugs
is strongly supported by several pieces of evidence. For instance,
the finding derives support from the variety and quantity of drugs
(reminiscent of a supermarket for drug sales); the presence of
drug paraphernalia, cash, and tools of the trade; the defendant's
admission that he owned the entire inventory of drugs kept in the
observed on the premises). See id. at 706-07. We adopt the same approach.
- 11 - apartment; his admission that he possessed the firearm in
furtherance of drug-related activities; and his admission that he
controlled a drug point, which the court reasonably could infer
was being run out of the apartment. We discern no clear error in
the district court's finding that one principal use of the
apartment was for drug distribution.
To complete the picture, we note that this finding was
bolstered by the evidence adduced through surveillance of the
apartment complex. Over a span of two days, officers observed
three sales of controlled substances that originated from the
defendant's apartment. The third sale is especially informative:
a buyer went to Unit 97 to purchase a controlled substance; the
Unit 97 occupant asked the buyer to wait while he went to the
defendant's apartment and retrieved a bag; and the occupant then
returned to complete the sale. The court reasonably could infer
that the seller went to the defendant's apartment to obtain the
drugs needed to complete the sale.
That ends this aspect of the matter. When all is said
and done, sentencing courts are entitled to draw common-sense
inferences from the evidence adduced. Because the district court
supportably found both that the defendant maintained the apartment
and that one of its principal uses was as the hub of a drug-
distribution business, we have little difficulty in upholding the
district court's application of the stash-house enhancement.
- 12 - The defendant resists this conclusion. He contends that
the only real evidence of drug distribution is a footnote in the
amended PSI Report (footnote 7). But the defendant is looking at
the record through rose-colored glasses.
The only portion of footnote 7 challenged by the
defendant contains the probation office's explanation that
"surveillance records reflected two incidents in which" an
individual had gone to the defendant's apartment "and received
drugs for further sale/distribution." The defendant attempts to
debunk these surveillance records, contending that "a review of
the documents on the record provide [sic] no mention of where did
the probation officer retrieved this information of a surveillance
record." And because there was insufficient evidence to support
the probation office's factual finding regarding the surveillance
of his apartment, the defendant's thesis runs, the district court
should not have relied on that finding.
It is at least arguable that this claim of error has
been waived. Although the defendant objected to the inclusion of
footnote 7 in the original PSI Report, the probation office
overruled that objection and included the footnote in the amended
PSI Report. The defendant did not advance any objection to any
portion of footnote 7 before the district court. That failure to
register a timely objection may well portend a waiver. See United
States v. Rondón-Garcia, 886 F.3d 14, 25 (1st Cir. 2018) (holding
- 13 - that failure timely to object constitutes a waiver); United States
v. Hester, 140 F.3d 753, 762 (8th Cir. 1998) (holding that
defendant waived certain objections to PSI Report by failing to
renew them during disposition hearing); cf. United States v.
Franklin, 51 F.4th 391, 399-400 (1st Cir. 2022) (holding — in
proceeding on revocation of supervised release — that objection
raised at preliminary hearing but not renewed at revocation hearing
was not preserved).
Here, however, we need not decide whether the defendant
waived his claim of error. Even if we assume, favorably to the
defendant, that the claim of error was not waived but merely
forfeited, it cannot succeed. Appellate review of a forfeited
claim is only for plain error. See United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). The district court's reliance on the
PSI Report's characterization of the surveillance records was not
plain error. First, the claimed error — if error at all — was not
"clear or obvious." Id. Second, the claimed error did not affect
the defendant's substantial rights. After all, the plethora of
other evidence produced at sentencing, taken without regard to the
surveillance evidence, was more than sufficient to ensure a finding
that a principal use of the apartment was for drug distribution
and that, therefore, the stash-house enhancement applied.
We summarize succinctly. We hold that a premises that
serves both as a family's place of residence and as the hub of a
- 14 - drug-distribution enterprise has two principal uses. The fact
that one principal use is for drug distribution permits a
sentencing court to impose the stash-house enhancement. And given
the district court's supportable factfinding, we conclude that the
court did not abuse its discretion in imposing the stash-house
enhancement here.
B
The defendant's second claim of procedural error
involves his criminal history score. Specifically, he complains
that the district court erred by adding one criminal history point
under USSG §4A1.2 for a prior offense — to which he allegedly
pleaded guilty — that was dismissed under a diversionary program.
We need not resolve this claim of error. The PSI Report
assigned six criminal history points to the defendant, placing him
in CHC III. The district court accepted that placement. The
defendant admits that his score includes five properly awarded
criminal history points. Because five criminal history points are
sufficient to place a defendant in CHC III, see USSG ch. 5, pt. A,
it is evident that the disputed criminal history point played no
part in establishing either the defendant's CHC or his guideline
sentencing range. Any error in assigning the sixth criminal
history point would, therefore, appear to be harmless. See, e.g.,
United States v. Battle, 637 F.3d 44, 51 (1st Cir. 2011).
- 15 - We use that tentative language ("appear to be") because
"an appellate court may only deem such an error harmless 'if, after
reviewing the entire record, it is sure that the error did not
affect the sentence imposed.'" United States v. Graham, 976 F.3d
59, 62 (1st Cir. 2020) (quoting United States v. Alphas, 785 F.3d
775, 780 (1st Cir. 2015)). We have undertaken such an examination,
and we are confident that the disputed criminal history point
played no part in the district court's formulation of the sentence.
In examining the record, "we seek to distinguish between
a judge's reliance on facts in selecting an appropriate sentence
and a judge's reliance on the significance that the Guidelines
appear to assign to those facts in calculating, for example, the
total offense level or criminal history category." Id.; see United
States v. Goergen, 683 F.3d 1, 4 (1st Cir. 2012). Here, the record
makes manifest that the district court placed no particular weight
on either the diversionary disposition or the extra point in the
defendant's criminal history score when fashioning the defendant's
sentence. The court mentioned the diversionary disposition only
once (in its explanation of why the defendant was in CHC III).
When explicating its sentence, the court did not allude to that
disposition in any way. Because there is nothing in the record to
support an assertion that the defendant's sentence was affected by
the inclusion of the sixth criminal history point, we are satisfied
that any error in awarding that point was patently harmless.
- 16 - C
This brings us to the defendant's claim that his sentence
is substantively unreasonable. His main argument is that his
sentence is substantively unreasonable because the court
erroneously imposed the stash-house enhancement and, thus,
increased his base offense level by two levels. But as we already
have explained, see supra Part II(A), the court did not err in
imposing the enhancement.
The defendant also makes a more general claim of
unreasonableness. Our review of this claim is for abuse of
discretion. See Holguin-Hernandez v. United States, 140 S. Ct.
762, 766-67 (2020). We recognize that in criminal sentencing,
"reasonableness is a protean concept." United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008). As such, "[t]here is no one
reasonable sentence in any given case but, rather, a universe of
reasonable sentencing outcomes." United States v. Clogston, 662
F.3d 588, 592 (1st Cir. 2011). Our task, then, is "to determine
whether the [challenged] sentence falls within this broad
universe." Rivera-Morales, 961 F.3d at 21.
The defendant's sentence has two constituent parts: an
eighty-seven-month sentence on count 2 (the drug-distribution
count) and a consecutive sixty-month sentence on count 4 (the
firearms count). The latter sentence is a mandatory minimum
- 17 - sentence, see 18 U.S.C. § 924(c)(1)(A)(i), so the defendant's
challenge is necessarily directed to his sentence on count 2.
The defendant's sentence on count 2 is at the low end of
the guideline sentencing range for that count. Where, as here, a
challenged sentence falls within a properly calculated guideline
sentencing range, the defendant "faces a steep uphill climb to
show that the length of the sentence is unreasonable." United
States v. deJesús, 6 F.4th 141, 150 (1st Cir. 2021). That climb
becomes even steeper when — as in this case — the challenged
sentence is at the very bottom of the guideline range. See United
States v. Demers, 842 F.3d 8, 15 (1st Cir. 2016).
In the last analysis, a sentence will fall within the
universe of reasonable sentencing outcomes as long as it rests on
"a plausible rationale and . . . represents a defensible result."
Rivera-Morales, 961 F.3d at 21. The sentence challenged here rests
on a plausible rationale. The district court considered the
relevant section 3553(a) factors and the parties' sentencing
recommendations. The court determined "that the sentence
recommended by the parties d[id] not reflect the seriousness of
the offense, d[id] not promote respect for the law, d[id] not
protect the public from further crimes by [the defendant], and
d[id] not address the issues of deterrence and punishment."
Instead, the court concluded that the possession of heroin,
cocaine, fentanyl, and marijuana, the presence of a loaded firearm
- 18 - in a child's bedroom, and other evidence of drug distribution
warranted a sentence within the applicable guideline range. We
deem this rationale plausible.
In addition, the challenged sentence represents a
defensible result. The defendant was found in his apartment with
four children. Law enforcement officers retrieved quantities of
various drugs from the apartment. Officers also retrieved a loaded
firearm and several loaded magazines. The defendant admitted to
owning all of the drugs, the firearm, and the ammunition. Last —
but far from least — the defendant admitted that he controlled a
drug point in the housing project. Given these circumstances, a
sentence at the low end of the guideline sentencing range is wholly
defensible.
Because the challenged sentence rests on a plausible
rationale and reflects a defensible result, it is substantively
reasonable. The defendant's claim of error therefore fails.
III
We need go no further. For the reasons elucidated
above, the challenged sentence is
Affirmed.
- 19 -