                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          March 11, 2015
                                   TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff – Appellee,
                                                            No. 14-5025
 v.                                               (D.C. No. 4:13-CR-00149-JHP-1)
                                                            (N.D. Okla.)
 FORREST GENE HENDERSON, JR.,

        Defendant – Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, HOLMES, and PHILLIPS, Circuit Judges.


      Forrest Henderson, Jr., appeals his sentence. He challenges the district court’s

application of a two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(12) for

maintaining a premise for the purpose of distributing a controlled substance, and another

two-level enhancement under § 2D1.1(b)(1) for possessing a firearm. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm the § 2D1.1(b)(12) enhancement, reverse



      * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
the § 2D1.1(b)(1) enhancement, and remand for resentencing in accordance with this

order and judgment.

                                              I

       In 2012, Homeland Security Investigations (“HSI”) received information from a

confidential informant that Henderson was involved in illegal drug distribution. From

December 2012 through May 2013, HSI agents surveilled Henderson at his home and

observed multiple parties enter and exit the residence after short periods, which they

believed to be consistent with drug-trafficking activity. On February 1, 2013, the

informant conducted a controlled purchase of methamphetamine from Henderson at his

residence. Additional controlled purchases were completed on February 11 and April 4,

2013, each involving amounts of methamphetamine worth several hundred dollars.

       In July 2013, the informant told HSI agents that he had paid Henderson a $50

deposit toward the purchase of a handgun. HSI agents set up a controlled handgun

purchase a few days later. During the purchase of this firearm, the informant inquired

about purchasing methamphetamine. Henderson explained that he would not have any

methamphetamine until later that day. At that time, Henderson made arrangements on

his cell phone to receive methamphetamine from his supplier.

       Henderson was arrested and later pled guilty to one count of “knowingly and

intelligently conspir[ing] with others to possess with the intent to distribute and to

distribute 5 grams or more of methamphetamine.” The charge related to his conduct

between January 2013 and April 4, 2013. Henderson’s Presentence Investigation Report
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(“PSR”) calculated a total offense level of 27, which included a two-level increase

pursuant to § 2D1.1(b)(12) “because the defendant maintained a premise for the purpose

of distributing a controlled substance,” and a two-level increase pursuant to § 2D1.1(b)(1)

“because a firearm was possessed.”

       Henderson objected to these enhancements. He argued that the firearm

enhancement should not apply because he sold the handgun at issue several months after

the dates of the offense to which he pled guilty, and because there was no temporal or

spatial relationship between the weapon, the drug trafficking activity, and himself.

Henderson also objected to the premises enhancement, contending that his primary use of

the premises was as a residence and that the drug trafficking activities were merely

incidental or collateral uses. The district court rejected these arguments and imposed

both enhancements. Henderson timely appealed.

                                             II

       A district court commits procedural error when it fails to properly calculate the

correct Guidelines range. United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011).

“The government has the burden of proving by a preponderance of the evidence any

findings necessary to support a sentence enhancement.” United States v. Gambino-

Zavala, 539 F.3d 1221, 1228 (10th Cir. 2008). We review the factual determinations of

the district court for clear error, United States v. Gomez-Arrellano, 5 F.3d 464, 465 (10th

Cir. 1993), and “[w]e review de novo whether the facts found by the court support the

application of the guideline it selected,” United States v. Cherry, 572 F.3d 829, 831 (10th
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Cir. 2009).

                                             A

       Both parties agree that the district court erred when it imposed a two-level

increase for possessing a firearm pursuant to § 2D1.1(b)(1). This conclusion is

compelled by United States v. Castro-Perez, 749 F.3d 1209 (10th Cir. 2014). In that

case, the defendant sold a gun and cocaine to an undercover agent on the same day, but at

different times. Id. at 1210. The district court applied a § 2D1.1(b)(1) enhancement

because the sale of the firearm was negotiated at the same time as the drug transaction,

because of the temporal proximity of the two sales, and because the gun was sold to a

“known drug user.” Id. This court reversed, holding that the application of this

enhancement was error because “there was no physical relation between the weapon and

the drug trafficking activity.” Id. at 1211. We explicitly rejected the contention that

proof of an ongoing conspiracy excused the government from establishing that the

firearm was spatially close to specifically identifiable drug-trafficking activities. Id. As

the government concedes, the physical link between the firearm and drugs in

Henderson’s case is even more attenuated than in Castro-Perez. Accordingly, we

conclude that the district court erred in applying the firearm enhancement.

                                              B

       The Guidelines provides for a two-level increase “[i]f the defendant maintained a

premises for the purpose of manufacturing or distributing a controlled substance.”

§ 2D1.1(b)(12). A comment on that Guideline explains that “[m]anufacturing or
                                             -4-
distributing a controlled substance need not be the sole purpose for which the premises

was maintained, but must be 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.” § 2D1.1 cmt. n.17. Courts applying the above-quoted language “should

consider how frequently the premises was used by the defendant for manufacturing or

distributing a controlled substance and how frequently the premises was used by the

defendant for lawful purposes.” Id. We treat a Guidelines comment as “authoritative

unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly

erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).

       Henderson contends the district court erred when it applied a two-level increase

under § 2D1.1(b)(12) because: (1) there was insufficient evidence to support the

increase; and (2) the district court failed to properly compare the frequency of licit and

illicit uses in reaching its determination.

       In support of his insufficient evidence claim, Henderson argues that the

government failed to establish that the drug purchases occurred inside, rather than

outside, the premises, and that the government failed to produce evidence relating to

“drug business” or “tools of the trade.” The PSR, however, explained that HSI agents

conducting surveillance at Henderson’s house between December 2012 and May 2013

observed “multiple parties” entering and exiting his residence in a manner that “they

believed to be consistent with drug trafficking activity.” And the presence of “tools of

the trade” is not required to support a § 2D1.1(b)(12) enhancement. Cf. United States v.
                                              -5-
Johnson, 737 F.3d 444, 448 (6th Cir. 2013) (explaining that facts found to be sufficient to

support an enhancement in one case may not be necessary to support that enhancement in

other cases). Moreover, the evidence shows that Henderson sold methamphetamine to a

confidential informant at or near his residence on three separate occasions and that he had

arranged for the delivery of an additional shipment of methamphetamine in August 2013.

See United States v. Verners, 53 F.3d 291, 296 (10th Cir. 1995) (concluding that 21

U.S.C. § 856(a)(1), a criminal statute parallel to § 2D1.1(b)(12), “was designed to punish

those who use their property to run drug businesses”). This evidence is sufficient to

support the inference that Henderson maintained the residence as a premise for the

purposes of distributing methamphetamine. Accordingly, we cannot say that the district

court clearly erred in so finding.

       A key distinction identified by Henderson between § 2D1.1(b)(12) and its parallel

criminal statute, § 856(a)(1), is that the commentary to the former explicitly directs courts

to compare the frequency of licit and illicit uses of the property. Henderson argues that

the district court failed to engage in this comparison, and that the unlawful uses of the

premises were incidental or collateral in comparison to the frequency with which the

property was used as a residence. We disagree. A review of the record indicates that the

district court properly understood that the unlawful use must have been “one of the

primary or princip[al] uses of the premises rather than an incidental or collateral use for

the premises,” and that it engaged in a comparison of the lawful and unlawful uses. The

court surveyed the evidence before it and concluded that, although the premises was used
                                             -6-
as a residence, the drug trafficking activities were frequent and substantial enough to

warrant the enhancement. Given the evidence discussed above, we cannot say that the

court failed to properly conduct a comparison of the uses of the property.

                                            III

       Henderson’s two-level enhancement pursuant to § 2D1.1(b)(12) is AFFIRMED.

His two-level enhancement pursuant to § 2D1.1(b)(1) is REVERSED. Accordingly, this

case is REMANDED for resentencing consistent with this order and judgment.



                                                  Entered for the Court


                                                  Carlos F. Lucero
                                                  Circuit Judge




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