United States v. Thompson

Opinion

23-6007 United States v. Thompson

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of July, two thousand twenty-four.

PRESENT:

DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges, MARK A. BARNETT, Judge. * ______________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-6007

DWAYNE THOMPSON,

Defendant-Appellant. † ______________________________________

*Chief Judge Mark A. Barnett, of the United States Court of International Trade, sitting by designation.

† The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Defendant-Appellant: Elizabeth M. Johnson, New York, NY.

For Appellee: Daniel George, Conor M. Reardon, Assistant United States Attorneys, for Vanessa Roberts Avery, United States Attorney for the District of Connecticut, New Haven, CT.

Appeal from a judgment of the United States District Court for the District

of Connecticut (Alvin W. Thompson, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the December 27, 2022 judgment of the

district court is AFFIRMED.

Dwayne Thompson appeals from the district court’s judgment following his

conviction after a bench trial on one count of conspiracy to distribute and to

possess with intent to distribute heroin, and one count of attempting to possess

with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(i), and 846. The district court sentenced Thompson to

156 months’ imprisonment on each count, to be served concurrently, which was

well below the range of 235 to 293 months prescribed by the United States

Sentencing Guidelines (“U.S.S.G.”). On appeal, Thompson argues that his

2 sentence was procedurally and substantively unreasonable. We assume the

parties’ familiarity with the facts, procedural history, and issues on appeal.

Thompson first argues that his sentence was procedurally unreasonable

because the district court erred in increasing his offense level by two levels under

the drug-premises enhancement of U.S.S.G. § 2D1.1(b)(12), which applies where a

defendant “maintained a premises for the purpose of manufacturing or

distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12). Thompson

objected to the drug-premises enhancement at sentencing, and so our review is for

abuse of discretion. See United States v. Sims, 92 F.4th 115, 122 (2d Cir. 2024).

“The abuse-of-discretion standard incorporates de novo review of questions of law

(including interpretation of the Guidelines) and clear-error review of questions of

fact.” United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008).

Determining whether section 2D1.1(b)(12) applies is a “fact-intensive”

inquiry requiring consideration of the totality of the circumstances, United States

v. Vinales, 78 F.4th 550, 552–53 (2d Cir. 2023), and a “district court’s factual findings

at sentencing need be supported only by a preponderance of the evidence,” United

States v. Norman, 776 F.3d 67, 76 (2d Cir. 2015). For purposes of section

2D1.1(b)(12), a premises can be a “a building, room, or enclosure.” U.S.S.G.

3 § 2D1.1 cmt. n.17. “Manufacturing or distributing a controlled substance need

not be the sole purpose for which the premises was maintained” so long as it was

“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.; see United

States v. Esteras, 102 F.4th 98, 105 (2d Cir. 2024) (holding that a single premises can

be primarily used as both a residence and a narcotics distribution point).

The district court did not abuse its discretion in applying the section

2D1.1(b)(12) enhancement when calculating Thompson’s offense level. The

record shows that Thompson and his coconspirator Jose Carrasquillo opened a

business called “Blackout Tints” several months before their arrests, operating out

of a building in Wethersfield, Connecticut. The building was not just for their

nascent car detailing business – they also used it for their more-established drug-

trafficking operations. Specifically, as the fact-finder at Thompson’s bench trial,

the district court found pursuant to Federal Rule of Criminal Procedure 23(c) that

“Thompson had a heroin source in California; that Thompson and Carrasquillo

pooled money to purchase heroin from Thompson’s source; that the two of them

stored the heroin at Blackout Tints and at Carrasquillo’s house; that Carrasquillo was

responsible for distributing it to customers and [that] Thompson was responsible

4 for sending payments to the source.” Thompson App’x at 70–71 (emphasis

added).

At sentencing, the district court adopted the factual findings of the

presentence report, which detailed how Thompson and Carrasquillo maintained

exclusive access to the office space at Blackout Tints, where an employee of

Blackout Tints had built secret compartments to store narcotics. In response to

Thompson’s objection to the drug-premises enhancement, the district court

specifically emphasized the fact that “only Mr. Thompson and Mr. Carrasquillo

had access and possessed keys to the office area which had the secret

compartments to build and store narcotics.” Thompson App’x at 123. The

presentence report further noted that, on the day of the planned three-kilogram

transaction, Thompson, Carrasquillo, and other coconspirators held a pre-

transaction meeting at Blackout Tints.

All of these factual findings were well supported by testimony at trial,

which the district court was free to credit. See Anderson v. City of Bessemer, 470

U.S. 564, 575 (1985). The district court heard testimony that Thompson knew

about the secret compartments in the Blackout Tints office, which were designed

for the purpose of storing drugs imported from out of state. The district court

5 heard further testimony that only Carrasquillo and Thompson had keys to the

office, which they kept locked whenever they were not present, and where they

also stored a handgun for security – the same handgun Thompson brought with

him to the attempted drug transaction that ended with his arrest. Additionally,

the district court heard testimony that Thompson helped Carrasquillo cut the

heroin they purchased, that scales were kept at Blackout Tints, and that the heroin

packaging occurred at Blackout Tints. While Thompson insists that any prior

narcotics operations at Blackout Tints are unconnected to the attempted three-

kilogram transaction for which he was convicted, it strains credulity to suggest

that Thompson and Carrasquillo had stopped using Blackout Tints for their heroin

trafficking at the time of the planned three-kilogram transaction. Indeed, the

district court was shown surveillance footage from the day of that transaction,

which showed Carrasquillo, Thompson, and other coconspirators conducting

their pre-transaction rendezvous at Blackout Tints.

Given this record, we cannot say that the district court abused its discretion

in concluding that Thompson maintained a premises – Blackout Tints – for which

“one of [his] primary or principal uses” was manufacturing or distributing a

controlled substance. U.S.S.G. § 2D1.1 cmt. n.17.

6 Next, Thompson argues that his sentence was substantively unreasonable.

We review a sentence’s substantive reasonableness under the abuse of discretion

standard. See United States v. Spoor, 904 F.3d 141, 156 (2d Cir. 2018). “A

defendant challenging the substantive reasonableness of his or her sentence bears

a heavy burden because our review of a sentence for substantive reasonableness

is particularly deferential.” Id. (internal quotation marks omitted). A sentence

is substantively unreasonable when it would “damage the administration of

justice” because it is “shockingly high . . . or otherwise unsupportable as a matter

of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Because a

Guidelines sentence will be substantively reasonable in “the overwhelming

majority of cases,” it is “difficult to find that a below-Guidelines sentence is

unreasonable.” United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (internal

quotation marks omitted).

Thompson argues that his below-Guidelines sentence was substantively

unreasonable in light of his personal circumstances, including his lack of criminal

history, his service in the National Guard, his lawful employment, his support for

his family, and the fact that the “crime of conviction was one that involved no

actual drugs or danger to the community because the alleged seller of the drugs

7 was in fact an informant.” Thompson Br. at 13–14. But the particular weight

given to mitigating factors “is a matter firmly committed to the discretion of the

sentencing judge,” and we see no abuse of that discretion here. United States v.

Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (internal quotation marks omitted).

The record reflects that the district court carefully weighed the factors under 18

U.S.C. § 3553(a), choosing a well-below-Guidelines sentence after balancing the

severity of Thompson’s offense, which included bringing a handgun to a drug

transaction, with his personal circumstances. The district court specifically noted

that the offense of conviction was Thompson’s “first offense,” that he had “served

in the National Guard[, which] sa[id] something very positive about [him],” and

that Thompson had been a supportive father. Thompson App’x at 145; PSR

¶¶ 62–64. But the district court was clearly justified in considering the “very

substantial quantity of heroin” involved in the conspiracy, 3 “the impact that that

quantity of drugs [would have had] on the community” and “the families of

people who are addicted to heroin,” “[t]he presence of the gun” at the transaction

3 The trial testimony made clear, and Thompson does not now dispute, that Thompson was “not just” “involved in . . . one isolated incident but [had] a longstanding drug relationship with Mr. Carrasquillo[] involving the shipments of substantial quantities of heroin from California to Connecticut[,] and that Mr. Thompson used his businesses to help facilitate that drug activity.” Thompson App’x at 136.

8 on the day of Thompson’s arrest, and the fact that Thompson perjured himself at

trial, threatening “the integrity of court proceedings.” Thompson App’x at 145–

46. Reviewing for abuse of discretion, we cannot say that the district court’s

below-Guidelines sentence in this case was substantively unreasonable. See

United States v. Pope, 554 F.3d 240, 247 (2d Cir. 2009) (“[W]e will not second guess

the weight (or lack thereof) that the judge accorded to a given factor or to a specific

argument made pursuant to that factor.” (internal quotation marks omitted)).

We have considered Thompson’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court