In United States v. Murphy, No. 17-5118 (10th Cir. Aug. 24, 2018) the Tenth Circuit issued its first-ever published opinion on U.S.S.G. § 2D1.1(b)(12), the guideline adjustment for maintaining a premises for purposes of drug distribution. Although the circuit affirmed the application of the adjustment, it made some useful law on how the adjustment applies when the premises at issue is the defendant’s own residence.
Section 2D1.1(b)(12) provides for a two-level increase if “the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance.” The commentary adds that while drug activity need not be the “sole purpose” of the premises, it must be a one of the “primary or principal uses” of the premises and not an “incidental or collateral” use. § 2D1.1 cmt. n.17.
In many cases, like this one, the premises at issue is the defendant’s own home. And that situation raises the question of what it means for drug activity to be a “primary” use of a premises that is constantly used for legitimate activities too? Mr. Murphy argued that drug activity must be “pervasive and persistent” to qualify for the adjustment. Op. at 8. The court rejected that test but ultimately adopted a very similar one: drug activity “must not only be frequent but also substantial.” Op. at 10.
The court also set out a number of factors to consider: “(1) the frequency and number of drugs sales occurring at the home; (2) the quantities of drugs bought, sold, manufactured, or stored in the home; (3) whether drug proceeds, employees, customers, and tools of the drug trade (firearms, digital scales, laboratory equipment, and packaging materials) are present in the home, and (4) the significance of the premises to the drug venture.”
Takeaway: Mr. Murphy lost under this test because the evidence suggested that he had used his home to sell drugs for a long time. But in general, this test should be hard to meet, and in most cases you can challenge the enhancement.