In United States v. Vinales, No. 22-331-cr (Aug. 29, 2023), the panel (Lynch, Lohier, and Bianco) issued a per curiam opinion affirming application of the drug-distribution premises enhancement of U.S.S.G. § 2D1.1(b)(12).
Vinales was charged with selling drugs out of an apartment where he had once resided, but no longer did at the time of arrest. On appeal, he argued that the two-point enhancement should not apply because he did not maintain the premises after moving out “for the purpose of manufacturing or distributing a controlled substance.” In its first published opinion on this enhancement, the Circuit relied on guidelines commentary to endorse the “totality-of-the-circumstances” test employed below. It held the enhancement was applicable, reasoning that Vinales maintained the apartment and continued to sell drugs from it once he moved out. Thus, even if he still socialized there after moving out, the district court properly determined that, at his arrest, the premises “was by then used as a drug house rather than a residence.”
The panel declined the government’s invitation to more broadly hold, as other Circuits have, “that a defendant’s use of a premises as a home does not categorically bar application of the enhancement.” Something to keep an eye on, however: the Circuit did signal its approval. “The rule the Government and our sister courts espouse makes sense.”