                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                            April 30, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-2063
                                                   (D.C. No. 1:15-CR-00619-JAP-1)
 REY A. DOMINGUEZ-PEREZ,                                       (D.N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MORITZ, KELLY, and EID, Circuit Judges.
                  _________________________________

      Rey Dominguez-Perez pleaded guilty to one count of conspiracy and three

counts of possession with intent to distribute a controlled substance. The district

court imposed a 180-month prison sentence. Dominguez-Perez appeals, arguing the

district court improperly enhanced his sentence, denied him a downward adjustment,

and imposed a substantively unreasonable sentence. For the reasons discussed below,

we affirm in part, reverse in part, and remand for further proceedings.




      *
        This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
                                     Background

      This appeal arises out of a conspiracy between Dominguez-Perez and his

former wife, Rosann Tercero, to possess methamphetamine, heroin, and marijuana

with the intent to distribute. During a search of Dominguez-Perez and Tercero’s

house, law enforcement discovered distribution-level quantities of those controlled

substances in various rooms, as well as two firearms. Dominguez-Perez ultimately

pleaded guilty to one count of conspiracy, three counts of possessing a controlled

substance with the intent to distribute, and one count of unlawfully possessing a

firearm.1

      Based on a total offense level of 40 and a criminal-history category of I, the

presentence investigation report (PSR) calculated a sentencing range of 292 to 365

months in prison under the United States Sentencing Guidelines (the Guidelines). As

relevant to this appeal, the total offense level included a two-level enhancement

under U.S.S.G. § 2D1.1(b)(1) for possessing a firearm, a two-level enhancement

under § 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or

distributing a controlled substance, and a two-level enhancement under § 3C1.1 for

obstructing justice. It did not include a downward adjustment for accepting

responsibility under § 3E1.1.

      Dominguez-Perez didn’t file objections to the PSR. Instead, in his sentencing

memorandum, he asked the district court to “deviate . . . downward” from the


      1
        The district court later allowed Dominguez-Perez to withdraw his plea to the
firearm charge and dismissed that count without prejudice.
                                           2
Guidelines and sentence him to time served. App. vol. 2, 455. Specifically,

Dominguez-Perez argued that the enhancement for obstructing justice was “not

warranted.” Id. at 456. Additionally, he suggested he was entitled to a downward

adjustment for accepting responsibility because he “clearly accepted responsibility

. . . by pleading to the indictment.” Id. at 455. He then pointed to the firearm

enhancement and argued for a two-level downward deviation because the district

“[c]ourt suppressed the firearm[] charges.” Id. He also referenced the drug-premises

enhancement and suggested that a two-level downward deviation was warranted

because “the main purpose of the house was for [Tercero], her three children[,] and

[Dominguez-Perez] to reside in.” Id. At no point, however, did Dominguez-Perez

suggest that the PSR improperly applied these two enhancements.

      The government surmised that despite Dominguez-Perez’s failure to object to

the PSR, Dominguez-Perez was nevertheless “obliquely disput[ing]” his assessed

offense level via the arguments he presented in his sentencing memorandum. Id.

at 460. In response to those arguments, the government advocated for the

obstructing-justice enhancement and against the accepting-responsibility adjustment.

Additionally, it insisted that the PSR properly assessed the firearm enhancement

because the firearms remained “[r]elevant [c]onduct,” even though the district court

ultimately suppressed all evidence of them. Id. at 461. Further, the government

argued that the PSR properly assessed the drug-premises enhancement because the

evidence showed that processing and storing controlled substances for distribution

was also “a principal use of the premises.” Id. at 468.

                                            3
      At the sentencing hearing, defense counsel expressly denied that there were

any “disputed facts” that might warrant an evidentiary hearing. Id. at 489. Thus, the

district court adopted the PSR’s factual findings. The district court then asked

Dominguez-Perez to explain his objections to the PSR’s calculations. In response,

Dominguez-Perez argued against the enhancement for obstructing justice. He further

argued that in lieu of a downward adjustment for accepting responsibility, the district

court should grant him a “downward departure.” Id. at 498. But at no point during the

sentencing hearing did Dominguez-Perez suggest that he objected to applying the

firearm enhancement or the drug-premises enhancement. Indeed, he remained silent

even when, in response to the district court’s questions, the government

(1) confirmed that law enforcement found firearms in the common area of the house

and (2) verified that Dominguez-Perez rented the house at issue with Tercero and her

children.

      The district court ultimately rejected Dominguez-Perez’s requests and

proposed a sentence of 180 months’ imprisonment. Three times, it asked the parties

to comment on the proposed sentence. Each time, defense counsel declined to do so.

The district court then imposed the 180-month sentence. Dominguez-Perez appeals.2


      2
         We agree with the parties that we have jurisdiction over this appeal. See
KCOM, Inc. v. Emp’rs Mut. Cas. Co., 829 F.3d 1192, 1196 (10th Cir. 2016) (noting our
“obligation to examine our own subject[-]matter jurisdiction”). It’s true that (1) the
district court entered an order dismissing, without prejudice, one count of the
indictment against Dominguez-Perez and (2) such an order isn’t usually an
appealable final order. See United States v. Tsosie, 966 F.2d 1357, 1360–61 (10th
Cir. 1992) (holding that dismissal of indictment without prejudice based on speedy-
trial violation isn’t immediately appealable). But Dominguez-Perez doesn’t appeal
                                           4
                                        Analysis

      Dominguez-Perez argues the district court improperly enhanced his sentence

for obstructing justice, for possessing a firearm, and for maintaining a premises for

the purpose of manufacturing or distributing a controlled substance. See

§§ 2D1.1(b)(1), (12), 3C1.1. He also argues that the district court wrongly denied

him a downward adjustment for accepting responsibility. See § 3E1.1. Additionally,

he contends that his sentence is substantively unreasonable.

      The government concedes that the district court must make additional findings

to support the obstructing-justice enhancement. See United States v. Dunnigan, 507

U.S. 87, 95 (1993) (explaining that before imposing § 3C1.1 enhancement, district

court must find that defendant attempted to willfully impede or obstruct justice).

Further, given the “interdependency” of the obstructing-justice enhancement and the

accepting-responsibility adjustment, the government also concedes that if we accept

its concession regarding the former, the district court must also reconsider the latter.

Aplee. Br. 10. We therefore reverse and remand to the district court for further

findings on the obstructing-justice enhancement and the accepting-responsibility

adjustment. And in light of this remand, we agree with the parties that we need not

address the substantive reasonableness of Dominguez-Perez’s sentence at this time.



the order dismissing that count; he appeals from the judgment against him, which
became a final appealable order when the district court imposed the sentence and
dismissed the remaining count without prejudice. See United States v. Kaufmann, 985
F.2d 884, 891 (7th Cir. 1993) (finding conviction on one count of indictment was
final and appealable even though other counts were dismissed without prejudice).
                                            5
      That leaves Dominguez-Perez’s challenges to the firearm enhancement and the

drug-premises enhancement. We review legal questions regarding the Guidelines de

novo and review any factual findings for clear error. See United States v. Craig, 808

F.3d 1249, 1255 (10th Cir. 2015). We address each enhancement in turn.

I.    Firearm Enhancement

      Dominguez-Perez contends there was an insufficient nexus between the

firearms found in his house and the drug activity that occurred there to support the

firearm enhancement. Cf. § 2D1.1(b)(1) (providing for two-level increase if

“dangerous weapon (including a firearm) was possessed”); § 2D1.1 cmt. n.11(A)

(noting enhancement isn’t warranted if “it is clearly improbable that the weapon was

connected with the offense”). But the government asserts that Dominguez-Perez’s

nexus argument is a factual challenge that Dominguez-Perez failed to raise below. As

such, the government argues that Dominguez-Perez waived this argument. Compare

United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012) (noting that when

appellant attempts to advance argument on appeal that he or she failed to raise below,

we typically deem argument forfeited and review it only for plain error), with United

States v. Deninno, 29 F.3d 573, 580 (10th Cir. 1994) (distinguishing between

unpreserved legal arguments and unpreserved factual arguments; explaining that we

treat unpreserved factual arguments as waived—rather than forfeited—and therefore

won’t consider them at all, even for plain error); see, e.g., United States v.

Templeton, 750 F. App’x 685, 685–86 (10th Cir. 2018) (unpublished) (finding nexus

argument waived because it was a factual challenge not raised below).

                                            6
      We agree with the government that Dominguez-Perez didn’t raise a nexus

argument below. Indeed, he admitted as much at oral argument. The only argument

he made below about the firearm enhancement was his suggestion that the district

court should “deviate [two] points downward” because it “suppressed the firearms

charges.” App. vol. 2. 455. And that’s not a nexus argument.

      We further agree with the government that the nexus argument is factual in

nature. For instance, Dominguez-Perez argues there’s no nexus because the record

doesn’t indicate (1) that “drugs were kept anywhere near firearms,” (2) that drug

manufacturing or distributing “happened in temporal or [spatial] relation” to the

firearms, (3) that he could “readily access[]” the firearms, or (4) that the firearms

were operable. Aplt. Br. 28. These are all factual assertions. And because

Dominguez-Perez failed to advance them below, we lack an adequate record against

which to review them. See United States v. Saucedo, 950 F.2d 1508, 1518 (10th Cir.

1991) (noting that “when a defendant fails to raise the issue below, we have no

factual record by which to review the application of the guidelines”), overruled in

part on other grounds by Stinson v. United States, 508 U.S. 36 (1993). Thus, we

conclude that Dominguez-Perez waived any factual objection to the firearm

enhancement. Cf. Templeton, 750 F. App’x at 688–89 (finding defendant waived

factual argument about physical proximity between marijuana and firearms for

purposes of § 2K2.1(b)(6)(B)’s four-level enhancement because he failed to raise that

challenge below).



                                            7
      Alternatively, we would find that Dominguez-Perez waived his firearm-

enhancement challenge even if we accepted his contention that this argument is legal,

rather than factual, in nature. In particular, Dominguez-Perez insists that rather than

challenging the accuracy of the facts contained in the PSR, he is instead asserting that

even assuming those facts are true, they are nevertheless legally “insufficient . . . to

support” the firearm enhancement. Rep. Br. 3–4. But Dominguez-Perez didn’t make

this legal argument below either. Instead, he merely asked the court to deviate

downward from the Guidelines range to account for its decision to suppress evidence

of the firearms.

      Thus, we conclude Dominguez-Perez forfeited his legal-sufficiency argument

by failing to fully and adequately present it below. See United States v. Winder, 557

F.3d 1129, 1136 (10th Cir. 2009) (explaining that to preserve argument for appeal,

objection must be “‘definite’ enough” to inform district court of “‘the precise ground’

for a party’s complaint” (quoting Neu v. Grant, 548 F.2d 281, 287 (10th Cir. 1977))).

And although we typically review forfeited arguments for plain error, Dominguez-

Perez makes no plain-error argument here. Accordingly, even assuming his challenge

to the firearm enhancement is a legal one, that legal challenge is also waived. See

United States v. Kearn, 863 F.3d 1299, 1313 (10th Cir. 2017) (holding that defendant

waived argument he forfeited below by failing to advance plain-error argument on

appeal).

      In sum, Dominguez-Perez waived any factual challenges to the firearm

enhancement by failing to make those challenges below. Further, to the extent that he

                                            8
presents a legal argument on appeal, he forfeited that argument below and waived it

on appeal by failing to argue for plain error. We therefore affirm the district court’s

decision to impose this enhancement.

II.   Drug-Premises Enhancement

      Next, Dominguez-Perez argues that the district court improperly applied the

drug-premises enhancement. Cf. § 2D1.1(b)(12) (providing for two-level increase if

“defendant maintained a premises for the purpose of manufacturing or distributing a

controlled substance”). In particular, he contends that the drug-premises enhancement

doesn’t apply because his use of the house for drug-trafficking purposes “was

incidental” to his use of the house as “a family home.” Aplt. Br. 31; see also § 2D1.1

cmt. n.17 (explaining that enhancement only applies when “[m]anufacturing or

distributing a controlled substance” 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”).

      Again, the government contends that this incidental-use argument is a factual

challenge and that Dominguez-Perez waived it by failing to advance it below. Again,

Dominguez-Perez disagrees. This time, he points out that he requested a “[two-]point

downward deviation” to offset the drug-premises enhancement because “the main

purpose of the house was for [Tercero], her three children[,] and [Dominguez-Perez]

to reside in.” App. vol. 2, 455. And he contends that this request preserved his

incidental-use argument.



                                            9
      But a request for a downward deviation isn’t necessarily the same as an

argument that an enhancement doesn’t apply. Cf. United States v. Gallegos, 610 F.

App’x 786, 789 n.4 (10th Cir. 2015) (unpublished) (distinguishing between

(1) “enhancements” and “adjustments,” which are relevant for purposes of

calculating applicable Guidelines range, and (2) “variances” and “departures,” which

provide grounds for “deviat[ing]” from applicable Guidelines range once calculated).

      More importantly, the argument Dominguez-Perez made below (that he used

the house primarily for residential purposes) is distinct from the argument that he

makes on appeal (that he used the house incidentally for drug trafficking). This is so

because, as the government pointed out in its response to Dominguez-Perez’s

sentencing memorandum, a house may have more than one primary use. See § 2D1.1

cmt. n.17 (noting that drug-trafficking use “must be one of the defendant’s primary or

principal uses for the premises” (emphasis added)); United States v. Murphy, 901

F.3d 1185, 1190 (10th Cir. 2018) (explaining that drug-premises enhancement

“clearly contemplates a premises with more than one primary use”).

      Put differently, the house could have been used primarily for both residential

purposes and drug-trafficking purposes. See Murphy, 901 F.3d at 1191 (“[O]ne may

use his home (in the broad sense of the word) for lawful purposes 100% of the time

and also use it (in the same broad sense of the word) for unlawful drug activity 100%

of the time. In other words, both simultaneous uses may well be primary.”). Thus, an

argument that the primary use of a house was residential does not, on its own, amount

to a challenge that the drug-trafficking use was incidental to that primary, residential

                                           10
use. We therefore reject Dominguez-Perez’s contention that he raised his incidental-

use argument below.

      Further, Dominguez-Perez’s incidental-use argument is—like his nexus

argument—factual in nature. For instance, Dominguez-Perez asserts there is “no

evidence that a single drug transaction was carried out from” his house. Aplt. Br. 31.

He likewise points to the absence of evidence that “any customers or suppliers” came

to the home. Rep. Br. 10. And he characterizes the drug trafficking that occurred in

the house as “confined largely to an attic and garage areas.” Aplt. Br. 31. But because

Dominguez-Perez failed to advance these factual assertions below, the district court

didn’t develop a factual record against which we might review them. See Saucedo,

950 F.2d at 1518. We therefore conclude that he waived his incidental-use argument.

See Deninno, 29 F.3d at 580; Templeton, 750 F. App’x 688–89.

      Alternatively, we would again reach the same conclusion even if we accepted

Dominguez-Perez’s assertion that he is challenging the legal sufficiency of the PSR’s

facts, rather than the facts themselves. That’s because Dominguez-Perez’s request for

a downward deviation based on the house’s residential use wasn’t “‘definite’ enough

to indicate to the district court” that he was objecting to the drug-premises

enhancement on the ground that drug trafficking was an incidental use of the home.

See Winder, 557 F.3d at 1136 (quoting Neu, 548 F.2d at 287). Dominguez-Perez

therefore forfeited this legal argument by failing to raise it below. See id. And he

waived it by failing to argue for plain error on appeal. See Kearn, 863 F.3d at 1313.



                                           11
Thus, to the extent we construe Dominguez-Perez’s argument as presenting a purely

legal question, we decline to consider it on appeal.

                                      Conclusion

      We affirm the application of the firearm enhancement and the drug-premises

enhancement. But based on the government’s concessions, we reverse and remand to

the district court for further findings on the obstructing-justice enhancement and the

accepting-responsibility adjustment. In light of this remand, we decline to reach

Dominguez-Perez’s substantive-reasonableness challenge at this time.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




                                          12
