[00:01:14] Speaker 02: maintained in order to fulfill his very basic needs for a place to live, eat, sleep, bathe, so on. [00:01:22] Speaker 02: Nearly every drug defendant brings some work home with them, but the enhancement is not for the collateral uses that drug defendants make of homes that they would be maintaining anyway. [00:01:32] Speaker 02: In fact, even significant use of a home for the drug trade is not sufficient. [00:01:36] Speaker 02: The enhancement only applies [00:01:39] Speaker 02: where the drug distribution activity has become at least as important a purpose for having the space as the basic need for a home. [00:01:46] Speaker 01: Can you just tell us how the district court went wrong in interpreting the guideline? [00:01:51] Speaker 01: Because it seemed to me that the district court interpreted it exactly as you wanted, and that maybe you're quibbling with her finding of facts, but I'm not sure. [00:02:00] Speaker 02: Sure, Your Honor. [00:02:04] Speaker 02: Well, to get into that, I kind of need to say what I think principal or primary means, because the district court does go ahead and say principal and primary, but I don't think it's enough for the court to say just the magic words. [00:02:14] Speaker 02: It actually has to give meaning to those words that fits the meaning that those words have. [00:02:22] Speaker 02: So we know from the Mancuso case, from Shetler, that significance is not enough. [00:02:29] Speaker 02: In Mancuso, for instance, this court reverses a conviction under 21 U.S.C. [00:02:34] Speaker 02: 856, which is the companion statute, with nearly identical language, because the jury was instructed significant purpose. [00:02:43] Speaker 02: and but what's required is principal or primary. [00:02:46] Speaker 02: And for me, the difference between principal and primary and on the one hand and significant on the other is really this idea of a comparison. [00:02:53] Speaker 02: You can look at a stack of something and say, oh, that's a significant amount of this or that. [00:02:57] Speaker 02: But if you want to talk about something principal or primary, those are comparative superlatives. [00:03:02] Speaker 02: They mean, both of them mean, first or highest in rank and importance. [00:03:06] Speaker 02: And so you can't really be first in importance without looking at what the other options are. [00:03:12] Speaker 02: So if the drug import purpose is significant, but less important than another use, like residential use, it can't be a primary purpose, it can't support the enhancement. [00:03:24] Speaker 03: Let me ask you, here's a hypothetical, so understand it's a hypothetical, although there's some truth to it. [00:03:30] Speaker 03: The woman across the street from me runs an exercise business out of her garage. [00:03:36] Speaker 03: And so from like nine to six, they're doing [00:03:40] Speaker 03: jazz or jazz. [00:03:41] Speaker 03: I don't know what it is, but they're doing something over there. [00:03:43] Speaker 03: Right. [00:03:44] Speaker 03: Okay. [00:03:44] Speaker 03: And so cars are coming and going and people are coming in and out of the garage, but it's their home garage. [00:03:49] Speaker 03: Now she lives in the house, but there's a lot of activity. [00:03:54] Speaker 03: I don't think it's drug activity. [00:03:55] Speaker 03: I think it's exercise activity, but there's a lot of activity out there. [00:03:59] Speaker 03: If someone were to ask me, well, what's the purpose of her house? [00:04:03] Speaker 03: I would say, well, I don't know. [00:04:04] Speaker 03: I'd say, I think she lives there, but boy, there's a lot of traffic. [00:04:08] Speaker 03: There are a lot of people exercising in that house. [00:04:11] Speaker 03: So use that example. [00:04:13] Speaker 03: What would that be? [00:04:14] Speaker 02: What I see in your hypothetical is someone who's in some sense compromising the residential purpose of their house. [00:04:20] Speaker 02: in favor of this exercise purpose as opposed to drug purpose, but they've turned their garage over to that purpose. [00:04:26] Speaker 02: I assume they have some equipment in there. [00:04:29] Speaker 02: It's not going to be used for resident like that. [00:04:33] Speaker 02: You know, a premise can be an enclosure or a room, right? [00:04:36] Speaker 02: So they've kind of taken their garage and turned it into an exercise. [00:04:39] Speaker 03: Now, sometimes they park the cars in there too, but fair enough. [00:04:42] Speaker 03: I see where you're going. [00:04:42] Speaker 03: So you think in that situation that they've kind of commandeered the house in a way that did not happen in this case. [00:04:46] Speaker 02: Right. [00:04:47] Speaker 02: And I mean, and you're describing like daily constant activity, which again is not not something we see in this case. [00:04:52] Speaker 02: In this case, you see a drug sale. [00:04:55] Speaker 02: I think they had 54 over 28 months, which is one every little less than one every two weeks. [00:05:01] Speaker 02: So it's it's, you know, to me, you're describing a situation where, yes, this has really become a big purpose of the House. [00:05:09] Speaker 02: I don't know if it's primary principle, but it's certainly closer than this one. [00:05:12] Speaker 04: Can I ask you about that? [00:05:13] Speaker 04: Because even in the circuit, in the [00:05:16] Speaker 04: In the example that Judge Owens gave, even then, if I knew that the person lived in the house, I would still have trouble saying that no matter how much they're exercising, you still think, well, the primary purpose has got to be living there. [00:05:29] Speaker 04: So if you kind of think of it that way, then under your test, where you just rank order things, when would it [00:05:38] Speaker 04: when would a home ever be ever fit the guidelines? [00:05:42] Speaker 02: I agree with you that it is a high bar, because living in a place is such a fundamental human need. [00:05:48] Speaker 02: We all need a place to live. [00:05:50] Speaker 02: So it should be a high bar, but there are certainly cases that reach it. [00:05:53] Speaker 02: I think the Florence Elagui case, which the Seventh Circuit case that the government cites, that's a good example. [00:05:59] Speaker 02: There, the defendant totally compromised the residential purposes of his home. [00:06:04] Speaker 02: He puts no limit on the use of [00:06:06] Speaker 02: the house for drug distribution. [00:06:08] Speaker 02: He's selling daily out of the house. [00:06:10] Speaker 02: He's selling only from that location. [00:06:12] Speaker 02: I think importantly, when his drug associates come over, he's forcing his wife and son to hide in his son's room. [00:06:18] Speaker 02: So he's taking certainly their residential. [00:06:21] Speaker 04: Even in that circumstance, if he's sleeping there, he's sleeping there daily. [00:06:25] Speaker 04: He's presumably making coffee and meals and all this. [00:06:29] Speaker 04: And so it just seems to me it'd be hard to say in some abstract theoretical sense that [00:06:35] Speaker 04: that is still more than the residential use of the home. [00:06:39] Speaker 04: So it seems like those kind of cases would seem to support that you can have multiple primary or purposes. [00:06:45] Speaker 02: You certainly can have multiple primary purposes. [00:06:47] Speaker 02: So I'm not saying it has to be greater, but it has to, I mean, it has to be on the same level. [00:06:52] Speaker 02: And, and I mean, if he's again, forcing his wife to cower in a room while his drug associates are there, and that's happening on a daily basis, his wife's not getting the residential use of her home. [00:07:04] Speaker 01: drug dealing is as much as he is sleeping or eating. [00:07:08] Speaker 02: Exactly. [00:07:08] Speaker 02: That's how I'm thinking of it. [00:07:10] Speaker 02: And then just to give another example, the Shetler case, which is an 856 case, but again, it's the same standard. [00:07:18] Speaker 02: There, the defendant turns his garage into a meth lab. [00:07:20] Speaker 02: He makes an enclosure in the garage, installs a meth lab in there. [00:07:25] Speaker 02: The garage is no longer. [00:07:26] Speaker 02: So he's taken that space. [00:07:27] Speaker 02: I mean, the rest of the house, who knows, but he's taken that space [00:07:31] Speaker 02: and turn that piece of his property, that premises, into a meth lab. [00:07:36] Speaker 02: So it's where he's made a dedicated space out of it. [00:07:39] Speaker 02: The rest of the family home may still be for living, but there is a premises in the family property that is for drugs. [00:07:45] Speaker 02: And you don't see anything like that here. [00:07:49] Speaker 04: Yeah, that makes, there I think you could say, well, you definitely have, you know, you're using 24 hours a day as a meth lab when you're sleeping eight hours a day or something. [00:07:58] Speaker 04: So that, but other, [00:08:00] Speaker 04: manufacturing, I suppose. [00:08:02] Speaker 04: But as far as the distribution aspect of it, I have trouble thinking that I guess maybe some people only sleep three hours a night and maybe they deal, you know, 15 hours a day. [00:08:12] Speaker 04: I don't know. [00:08:12] Speaker 04: But it just seems to me most of the time it'd be tough to say one is actually greater. [00:08:16] Speaker 02: Again, I think it's tough. [00:08:17] Speaker 02: I mean, I'll point to another case. [00:08:19] Speaker 02: I think Johnson from the Sixth Circuit. [00:08:20] Speaker 02: And in pointing to these cases, I'm not – their discussions of the standards in the other circuits are different from here because they have a different conception of significant versus principal or primary. [00:08:32] Speaker 02: But just the facts of that case, that guy had like a three-bedroom house, and he just turned one of those bedrooms into a space to keep [00:08:39] Speaker 02: 250 pounds of marijuana and a gun and some other stuff. [00:08:43] Speaker 02: So it's, you know, that entire bedroom is like the drug bedroom. [00:08:46] Speaker 02: That's, you know, off limits to non-drug visitors. [00:08:50] Speaker 02: And that's, again, just not something you see here. [00:08:52] Speaker 03: Do you want to reserve? [00:08:53] Speaker 02: I would. [00:08:54] Speaker 02: Thank you. [00:09:18] Speaker 00: Good morning, Your Honors. [00:09:19] Speaker 00: May it please the Court, Kelly Ng on behalf of the United States. [00:09:23] Speaker 00: Getting to Judge Thomas's question that she first asked to Cola, the District Court cited the correct standard here, and that is why it did not legally err. [00:09:34] Speaker 00: It cited the standard that distributing a controlled substance must be one of the defendant's primary or principal uses for the premises, and after raising the correct standard, [00:09:46] Speaker 00: It found that there was ample and substantial evidence in the record supporting that enhancement and then listed those facts. [00:09:54] Speaker 00: The district court also did not abuse its discretion when weighing the voluminous record in finding that that record supported the enhancement. [00:10:02] Speaker 00: And even if this were [00:10:03] Speaker 00: this court were to adopt this frequency, this numerical frequency analysis that the defendant is putting forth, then defendant's use of the premises would still meet that standard. [00:10:15] Speaker 00: In this case, determining whether a drug premises enhancement applies, it is a very fact-intensive inquiry. [00:10:21] Speaker 00: And it is clear that the district court in this case grappled with those facts. [00:10:26] Speaker 00: It said numerous times throughout the hearing how extensive the government's record was. [00:10:30] Speaker 00: There was about 700 pages of materials that it said that it had to digest, and it listened to arguments for about two and a half hours. [00:10:39] Speaker 00: And one of the, what Defendant was focusing on right now is about the actual number of transactions, and that is important too, but it's important here that that first sentence in the guidelines commentary also says [00:10:53] Speaker 00: Storage for the purpose of distribution is something that is to be taken into consideration. [00:10:59] Speaker 00: And here we can look at defendant's own admissions. [00:11:02] Speaker 00: For example, at PSR 583, defendant admitted that the safe in his bedroom closet was primarily used to store drugs and drug proceeds. [00:11:15] Speaker 00: He also admitted that the 13 PSR page 583 that the drug that $13,000 were drug proceeds and looking at the district court didn't just look at the criminal livelihood or the time that he had been a drug dealer. [00:11:30] Speaker 00: It looked at the actual drugs found in defendant's bedroom. [00:11:33] Speaker 00: He had approximately 687 fentanyl pills that were disguised as prescription M30s. [00:11:40] Speaker 00: He had about 458 grams of cocaine, which is about a pound of cocaine. [00:11:45] Speaker 00: He had approximately 374 methamphetamine pills that were disguised as Adderall. [00:11:51] Speaker 00: He also had the tools, he had the 788 grams of cannabis flower. [00:11:57] Speaker 00: And he also had the tools of the trade in his bedroom, which the district court considered. [00:12:01] Speaker 00: He had the digital scales with residue. [00:12:05] Speaker 00: And Mr. Ticola admitted at PSR page 583 that he would use his bedroom to break apart drugs. [00:12:12] Speaker 00: And that's why he had the scales with residue in there as well as the packaging equipment. [00:12:18] Speaker 00: He had two different cell phones, one for drug dealing and one for regular use that sometimes bled into drug dealing. [00:12:26] Speaker 00: And there's no evidence in the record that he stored his drugs anywhere else [00:12:30] Speaker 00: other than his home. [00:12:34] Speaker 04: So if just just relying on the storage aspect, if somebody was very, you know, very disciplined and did all their dealing out of their house, but you know, use their house just for storage, you know, had a closet where they would that be enough to meet to meet this enhancement if they were just using it for storage? [00:12:55] Speaker 00: It would depend on the facts. [00:12:57] Speaker 00: For example, if you're also considering whether they would use, they would maybe cut drugs in their bedroom, break apart drugs in their bedroom, just storage only. [00:13:07] Speaker 04: I mean, they are helping with distribution, I guess, because you've got to store it somewhere. [00:13:12] Speaker 04: But I'm just wondering, does that make it a primary use? [00:13:19] Speaker 00: While this case has much more than that, we would agree that under the guidelines commentary that that fits because that first sentence in the guidelines commentary does state that that includes storage for the purposes of distributing a controlled substance. [00:13:33] Speaker 00: And if that's one of the defendant's primary or principal uses for the premises, [00:13:38] Speaker 00: Because in that case, is there any evidence that there's anywhere else that they could have stored drugs? [00:13:43] Speaker 00: But if that's what they're using the home for, if the home is a hub for drug trafficking activity, and that's what makes it possible to continue distributing drugs, then it's possible. [00:13:53] Speaker 00: Again, on the facts of this case, we have so much more than that. [00:13:57] Speaker 00: In addition to him admitting that he's continuously storing drugs there for an extended period of time, the government listed out numerous examples where he either is distributing controlled substances from his home, inviting people to come to his home for drug transactions or to pay off debts, [00:14:15] Speaker 00: When he is not home, that's the important part because drug trafficking can still continue in his absence because in the record, in the text messages that the district court considered is that he would rely on his roommates to either leave drugs out for him when he was not there. [00:14:31] Speaker 00: Sometimes he would also leave drugs out in the porch or in the back porch in a shoe and he would even note that there were, he would tell his customers to be sly by going to the back porch because the neighbor's kids were outside. [00:14:45] Speaker 03: That's and counsel, if I could just jump in. [00:14:47] Speaker 03: My understanding is part of the reason why the statute, not the guideline, but the statute was passed and the guideline followed was because there were documented cases where drugs were being held in homes and children got access to these drugs. [00:14:58] Speaker 03: I had a case back in August where an infant died from ingesting drugs that were kept in the house. [00:15:04] Speaker 03: So I would think if we go back to why the statute was passed, and again, there's legislative history or there's plain text, we don't need to do that in this case. [00:15:11] Speaker 03: But I guess my point is that if [00:15:14] Speaker 03: the purpose of this law or the guideline was to prevent children and families from being accessing narcotics or being robbed, people coming to steal the drugs and kids there, that having drugs in a home is inherently more dangerous. [00:15:26] Speaker 03: And so it seems to me to, not to answer the question, but I will, maintaining the drugs it would seem to be is essential. [00:15:34] Speaker 03: I mean, if you keep the drugs in the house, it almost seems that that alone would satisfy the guideline because the purpose of it is to prevent children from [00:15:42] Speaker 03: Ingesting the drugs or being having people do a home invasion and they're being children house I mean am I am I right about that? [00:15:49] Speaker 00: We agree your honor that that was part of the purposes of passing This is to protect children and the inherent danger to the community that maintaining a drug premises brings with that [00:15:58] Speaker 00: And there were numerous people that came to defendant's home to complete drug transactions. [00:16:03] Speaker 00: And there are kids next door. [00:16:05] Speaker 00: So that is concerning. [00:16:06] Speaker 00: Nobody wants their kids living next door when random drug customers go to the backyard to pick up drugs from a shoe. [00:16:12] Speaker 00: And in this case, again, he had lots of different types of drugs in his bedroom so that there's an inherent risk of danger that can bring to any community in case anyone wanted to steal drugs from his apartment. [00:16:25] Speaker 00: As the district court noted that he had a variety of drugs in his bedroom that made him basically more marketable to a variety of different people in the community. [00:16:34] Speaker 00: And certainly with drugs like fentanyl, a small amount can kill someone. [00:16:38] Speaker 00: So if kids who are playing next door can potentially have access where it's in the back porch, it's hidden in the barbecue, it's in the front porch on a stand, it's easily accessible. [00:16:49] Speaker 00: And that's something that just creates more danger to the neighborhood. [00:16:54] Speaker 03: And conceivably, if you turn the apartment over to someone, you're not cleaning it all out of the fentanyl that might be inside. [00:16:59] Speaker 03: So I mean, anyway, you got two minutes. [00:17:11] Speaker 00: Does the court have any additional questions? [00:17:15] Speaker 03: I don't think so. [00:17:16] Speaker 00: Well, I will take the court's instruction at the very beginning. [00:17:20] Speaker 03: Hold on, hold on. [00:17:20] Speaker 03: It was advice, not an instruction now. [00:17:24] Speaker 03: But fair enough, counsel. [00:17:25] Speaker 03: Thank you. [00:17:27] Speaker 00: Thank you, Your Honor. [00:17:28] Speaker 03: Thank you. [00:17:44] Speaker 02: Court have any questions or should I jump in? [00:17:48] Speaker 02: Okay, a few things. [00:17:49] Speaker 02: I mean, the government council mentioned comparison. [00:17:53] Speaker 02: One issue here is that I don't think the district court did a comparison. [00:17:56] Speaker 02: The only mention the district court makes of the residential purposes is this very dismissive language about the only lawful purpose I've heard is that he lived there at these premises, as if that's not a big deal. [00:18:10] Speaker 02: And then it never returns that factor. [00:18:12] Speaker 02: We never see well, I've waited out and on balance, you know, these are these are matching those in terms of the Drugs and scales in the home that kind of stuff. [00:18:23] Speaker 02: He's really taking over small portions of his closet I think there might have been a couple things in a desk drawer There's no sense that the bedroom was compromised as a bedroom that he had trouble using the bedroom as a bedroom because he's doing this and [00:18:35] Speaker 02: Um, and just pushing back a little factually, we're not talking about numerous people in and out. [00:18:40] Speaker 02: It's a few, I mean, it's, you know, it's not ideal, but it's a few trusted customers. [00:18:45] Speaker 02: This isn't a constant stream of people. [00:18:47] Speaker 02: It's 54 over 54 instances over 28 months. [00:18:51] Speaker 02: Um, some of them are double counted as we talk about and, um, uh, it's the same players again and again, not a, not a random stream. [00:19:02] Speaker 02: Thank you very much. [00:19:04] Speaker 03: Thank you both for your briefing and argument in this very interesting case. [00:19:07] Speaker 03: We appreciate your efforts here. [00:19:09] Speaker 03: This matter is submitted.