     Case: 16-10881      Document: 00514144613         Page: 1    Date Filed: 09/06/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals

                                      No. 16-10881
                                                                                 Fifth Circuit

                                                                               FILED
                                                                       September 6, 2017

UNITED STATES OF AMERICA,                                                 Lyle W. Cayce
                                                                               Clerk
              Plaintiff - Appellee

v.

ARNULFO RODRIGUEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:16-CR-29


Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge: ∗
       Arnulfo Rodriguez pleaded guilty to conspiracy to possess with intent to
distribute cocaine—that he committed that crime and the facts of the offense
are not in dispute. Instead our question today involves the application of a
sentencing enhancement, recommended in the Presentence Investigation
Report (“PSR”), for maintaining a premises for the purpose of manufacturing
or distributing a controlled substance. Our review of the record reveals, at best,


       ∗
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 16-10881

weak evidence that Rodriguez was using his family home as a “stash house”—
the evil the disputed enhancement was enacted to combat. However, because
the district court stated clearly that the sentence was one it would otherwise
impose, we conclude any error was harmless.
                                        I.
      In November of 2015, Rodriguez’s three co-conspirators attempted to sell
approximately 2.2 kilograms of cocaine to an undercover Forth Worth police
officer. After being arrested, the three fingered Rodriguez as the source of the
drugs. A federal warrant issued, and Rodriguez was taken into custody on
January 28, 2016. Post-arrest, Rodriguez told officers that he had stored the
drugs at his home—for which he was to be paid $1,000—and that he kept two
handguns and a small quantity of cocaine for personal use at his residence,
consenting to a search of the premises.
      Officers transported Rodriguez to his home, where he led them to a closet
containing a small baggie of cocaine and a handgun. A further search revealed
$25,500 in cash, deemed drug proceeds. Rodriguez stated that the cash was
intended to pay for one kilogram of cocaine, and that over the previous six years
he had obtained approximately 30 kilograms from the same source.
      At sentencing, the PSR recommended a base offense level of 26 for
possession with intent to distribute of at least 2 kilograms but less than 3.5
kilograms of cocaine, a 2 level enhancement because the offense involved
firearms, a 2 level enhancement because “the defendant stored and maintained
a premises for the purpose of distributing a controlled substance,” and a 3 level
reduction for acceptance of responsibility, for a total offense level of 27. The
United States did not object to the PSR; Rodriguez initially filed ten objections.
However, after the PSR addendum suggested that Rodriguez’s objections could
be construed as not accepting responsibility for his offense, Rodriguez


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withdrew “all his original fact-based objections to the PSR” while reserving
“the right to argue, on a legal basis only,” against the enhancement for
maintaining a premises for drug distribution.
      At the sentencing hearing, Rodriguez argued, as he does on appeal, that
the facts in the PSR are insufficient as a matter of law to support the 2 level
enhancement for maintaining a premises for the purposes of distributing a
controlled substance. The trial court overruled that objection. The court
discussed letters Rodriguez submitted from his wife, his mother, and others,
and how it had considered all of them in reaching its decision. Rodriguez’s
mother spoke at sentencing, asking the court for mercy. Rodriguez himself
addressed the court, apologizing for his crime and expressing remorse. Based
on the total offense level of 27, the court calculated a sentencing range of 70 to
87 months. The court “stat[ed] the sentence [was] determined pursuant to
Title 18 U.S.C. § 3553 treating the Sentencing Guidelines as advisory only”
and “arriv[ed] at a reasonable sentence” of 77 months in prison, no fine, no civil
forfeiture, a mandatory special assessment of $100, and supervised release for
3 years following release from prison. Rodriguez objected to the sentence on
the basis of its reasonableness, to which the court responded:
      Very good. I will overrule that objection. I’ve considered the
      guidelines. I believe I have properly calculated the guidelines. I
      have determined this level of sentencing after consulting with
      those guidelines and then considering the 3553 factors. In
      particular, I have considered the quantity of drugs involved in this
      case as well as the cash found as well as the other facts involved
      in the PSR.

      I’ve compared those with what I consider to be very thoughtful
      letters from the defendant’s wife and mother and then what was a
      -- as I mentioned, a well-articulated, expressed letter from his son.
      In balancing those facts with the 3553(a) factors, I believe this is
      the appropriate sentence in that it is sufficient, but not greater
      than necessary, to comply with the statutory purposes of

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       sentencing and even if I am wrong as to my calculations of the
       Sentencing Guidelines this is the sentence I otherwise would
       impose.

This appeal followed.
                                              II.
       Rodriguez preserved this issue for review by contemporaneously
objecting to the application of the enhancement, and thus our review of the
“district court’s application of § 2D1.1(b)(12) is a factual finding reviewed for
clear error.” 1 “There is no clear error if the district court’s finding is plausible
in light of the record as a whole.” 2 Additionally, even where we find an error in
calculating a guidelines range:
       We will not vacate and remand for resentencing . . . if the
       guidelines calculation error is harmless—that is the error “did not
       affect the district court’s selection of the sentence imposed.” Even
       if a court did not consider the correct range, an error in the
       guidelines calculation can still be considered harmless if the
       proponent of the sentence “convincingly demonstrates both (1) that
       the district court would have imposed the same sentence had it not
       made the error, and (2) that it would have done so for the same
       reasons it gave at the prior sentencing.” 3

                                             III.
       Rodriguez argues that the district court erred in applying the Section
2D1.1(B)(12) enhancement because the undisputed facts in the record are
insufficient as a matter of law to support its application. The language of the
enhancement reads: “If the defendant maintained a premises for the purpose



       1 United States v. Haines, 803 F.3d 713, 744 (5th Cir. 2015) (citing United States v.
Barragan-Malfabon, 537 F. App’x 483, 484-85 (5th Cir. 2013) (per curiam); United States v.
Chagoya, 510 F. App’x 327, 328 (5th Cir. 2013) (per curiam)); see also United States v.
Guzman-Reyes, 853 F.3d 260, 263 (5th Cir. 2017).
       2 United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (quoting United

States v. Juarez Duarte, 513 F.3d 204, 208 (5th Cir. 2008) (per curiam)).
       3 United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012) (citations omitted).


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of manufacturing or distributing a controlled substance, increase by 2 levels.” 4
Comment 17 to the guideline explains:
       Subsection (b)(12) applies to a defendant who knowingly
       maintains a premises (i.e., a building, room, or enclosure) for the
       purpose of manufacturing or distributing a controlled substance,
       including storage of a controlled substance for the purpose of
       distribution.

       ...

       Manufacturing or 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. In making this determination, the
       court 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. 5

We have observed that this enhancement is based on 21 U.S.C. § 856, the so
called “stash house” statute. 6 As the colloquial name implies, § 856 and Section
2D1.1(b)(12) do not target the homes of casual users of illicit substances, but
rather facilities where a primary or principal purpose is the manufacture and
distribution of drugs. 7
       In Benitez, we held that the Section 2D1.1(b)(12) enhancement was
appropriate where the defendant received drug deliveries at the apartment
and where physical evidence found at the apartment included an air breathing


       4 USSG § 2D1.1(b)(12) (2015).
       5 USSG § 2D1.1(b)(12), comment 17.
       6 Guzman-Reyes, 853 F.3d at 264; see also United States v. Miller, 698 F.3d 699, 705

(8th Cir. 2012).
       7 See United States v. Roberts, 913 F.2d 211, 219-20 (5th Cir. 1990) (holding that the

evidence was sufficient to support a conviction under § 856 where premises contained “two
white envelopes containing thirty-two packs of crack cocaine, equipment required for the
manufacture and packaging of crack cocaine, forty-one white envelopes containing particles
of crack cocaine, and crack cocaine stored in a laundry bag in the bathroom.”).
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                                         No. 16-10881

mask, a cutting agent, a metal strainer, and drugs themselves. 8 In Carrillo, an
unpublished opinion decided earlier this year, we upheld the application of
Section 2D1.1(b)(12) based on “the large quantity of methamphetamine stored
in [the defendant’s] garage, as well as the over $12,000 in drug proceeds also
stored there and various other containers with methamphetamine residue. The
PSR further contained evidence suggesting that, in addition to the garage, [the
defendant] also used his former residence as a premises for drug distribution
and likely for storage, and he conducted drug transactions in the parking lot of
that residence on multiple occasions.” 9 As these decisions demonstrate, the
evidentiary bar for “primary or principal use” has not been set high.
         In fact, the parties have not directed us to, and we have not found, a
decision by a United States Court of Appeals reversing the application of
Section 2D1.1(b)(12). But that does not mean the enhancement is automatic
any time a home or other dwelling under the control of the defendant is
implicated in a drug crime—the enhancement does not apply where drug
distribution is a mere “incidental or collateral use[] for the premises.” 10 Here,
the United States argues that the district court could plausibly conclude that
drug distribution was a primary use of Rodriguez’s residence based on: (1) the
admission that 2.2 kilograms of cocaine, worth approximately $60,000, was
stored at the home at some point; (2) the baggie of cocaine in the closet; (3) the
firearm in the closet; (4) the drug proceeds found at the home; and (5) the PSR’s
undisputed finding that Rodriguez was a repeat drug dealer who his friends
turned to for large amounts of cocaine. Rodriguez argues the evidence does not




         8   United States v. Benitez, 809 F.3d 243, 250 (5th Cir. 2015).
         9   United States v. Carrillo, No. 16-10885, 2017 WL 2126348, at *1 (5th Cir. May 15,
2017).
         10   USSG § 2D1.1(b)(12), comment 17.
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support more than a one-time use of the premises for storing cocaine intended
for distribution.
      This evidence presents a close case as to whether the district court
committed clear error in determining that the Section 2D1.1(b)(12)
enhancement was warranted. The evidence in the PSR only establishes that
drugs intended for distribution were present in the Rodriguez home once—
when the 2.2 kilograms that served as the basis for his co-conspirators’ arrest
were briefly stored there. The fact that Rodriguez was a repeat drug dealer
who kept large quantities of cash and a firearm in his home makes it more
probable that he had previously stored drugs on site, but we are skeptical those
facts are sufficient—even taken with the incident that led to this conviction—
to support such an inference. Ultimately, however, we need not further pursue
the matter here, because we conclude that any error in applying the
enhancement was harmless.
                                          IV.
      Rodriguez argues that, without the 2 level enhancement, the total
offense level would have been 25, resulting in a Guidelines range of 57-71
months instead of the 70-87 months dictated by the level 27 range the district
court used. Assuming a middle of the Guidelines sentence, as he received from
the district court under the level 27 Guidelines range, Rodriguez urges that he
would have expected a sentence of approximately 64 months, a net difference
of 13 months. 11 This, Rodriguez argues, shows that the district court’s error in
applying the Section 2D1.1(b)(12) enhancement was not harmless.


      11 Rodriguez also cites to Gall for the proposition that re-sentencing is required
because “the Guidelines should be the starting point and the initial benchmark.” The Gall
Court goes on to say that “The Guidelines are not the only consideration, however.
Accordingly, after giving both parties an opportunity to argue for whatever sentence they
deem appropriate, the district judge should then consider all of the § 3553(a) factors to
determine whether they support the sentence requested by a party.” Gall v. United States,
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                                       No. 16-10881

       A sentence is harmless if the Government “convincingly demonstrates
both (1) that the district court would have imposed the same sentence had it
not made the error, and (2) that it would have done so for the same reasons it
gave at the prior sentencing.” 12 In evaluating whether the district court would
impose the same sentence regardless of the guidelines error, “[w]e take the
district court at its clear and plain word.” 13
       Here, in imposing the sentence, the district court stated:
       I’ve considered the guidelines. I believe I have properly calculated
       the guidelines. I have determined this level of sentencing after
       consulting with those guidelines and then considering the 3553
       factors. In particular, I have considered the quantity of drugs
       involved in this case as well as the cash found as well as the other
       facts involved in the PSR . . . . [E]ven if I am wrong as to my
       calculations of the Sentencing Guidelines this is the sentence I
       otherwise would impose.

       We have held that similar statements by a court during sentencing
indicate any error from an improper Guidelines range calculation is harmless.
In Castro-Alfonso, the district court stated that:
       In imposing [the 46–month] sentence the Court has considered all
       the 3553(a) factors. The Court believes that its ruling on the
       objection is correct. But if the Court is in error, the Court,
       nonetheless, would impose the same sentence noting that it’s
       reflected in the transcript itself, the offense was one that involved
       burglary of a dwelling. So the Court would impose the same
       sentence even if it is in error as to the enhancement here. 14



552 U.S. 38, 49 (2007). As discussed supra and infra, the district court here stated that it had
considered the 3553(a) factors in reaching its decision.
       12 United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010); accord United

States v. Sanchez, 850 F.3d 767, 769 (5th Cir 2017) (“Even when a district court does not
consider the correct guidelines range, an error is harmless if the district court would have
imposed the same sentence for the same reasons, regardless of an erroneous Guidelines
calculation.”) (citing Ibarra-Luna, 628 F.3d at 714).
       13 United States v. Castro-Alfonso, 841 F.3d 292, 298 (5th Cir. 2016).
       14 Id. (emphasis in original).


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Because “[t]he district judge was firm, plain, and clear in expressing the court’s
reasoning and we take him at his word,” we held “that to the extent that error
may have occurred, it was harmless.” 15 In Sanchez, “the district court stated
‘to the extent that I erred in application of the enhancement of plus six, the
sentence would still be the same.’” 16 Assuming arguendo that the district court
erred, we affirmed, holding that “[t]he district court made it abundantly clear
that it would have imposed this sentence, regardless of whether it improperly
calculated the appropriate Guidelines range by including the six-level
enhancement.” 17 And in Richardson, “[t]he district court stated that even if its
calculation under the Guidelines was incorrect, it would still impose the same
sentence,” 18 which we held indicated that “any error in calculating the total
offense level was harmless.” 19
      Here, the district court, treating the sentencing guidelines as advisory
only, stated that the facts of the case before it—in particular the quantity of
drugs involved—required a sentence of 77 months, “the appropriate sentence
in that it is sufficient, but not greater than necessary, to comply with the
statutory purposes of sentencing.” In reaching that sentence, the district court
considered letters from Rodriguez’s family, heard testimony from Rodriguez’s
mother, and heard Rodriguez himself apologize for his conduct. While we are
skeptical that the Section 2D1.1(b)(12) enhancement was appropriate based on
the record before us, we take the district court at its plain word—any error in
applying the enhancement was harmless.
                                           ****
      AFFIRMED.

      15 Id. at 298-99.
      16 Sanchez, 850 F.3d at 769.
      17 Id. at 770.
      18 United States v. Richardson, 713 F.3d 232, 234 (5th Cir. 2013).
      19 Id. at 237.


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                                 No. 16-10881

JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      Application of the Section 2D1.1(b)(12) enhancement in this case was
error. As the majority aptly states, “the record reveals, at best, weak evidence
that Rodriguez was using his family home as a ‘stash house.’” And even though
the majority expresses skepticism that the enhancement was appropriate, it
does not state that it was not.     But as the majority readily admits, the
enhancement is not automatic every time a defendant’s home is implicated in
a drug crime.    It does not apply where drug distribution is merely an
“incidental or collateral” use[] for the premises. U.S.S.G. § 2D1.1(b)(12) cmt.
17. That is all the evidence here establishes. The PSR establishes that drugs
intended for distribution were present in the Rodriguez home on a single
occasion.
      The Government asks us to infer that Rodriguez used his home
“primar[ily] or principal[ly]” to store drugs because he was “a repeat drug
dealer” who was found with a large amount of cash and a firearm in his home.
The Government’s label of “repeat drug dealer” is not based on Rodriguez’s
criminal history. In fact, the PSR indicates the “absence of any criminal
convictions,” no arrests, no pending charges, nor any “other criminal conduct.”
But even if Rodriguez had a criminal history, without additional evidence that
Rodriguez stored drugs at his home on other occasions, the inference that he
used his home primarily to store drugs is purely speculative. The addition of
years of incarceration cannot be based on mere speculation. In my view, the
court clearly erred by imposing the enhancement without sufficient evidence
to support it.
      I cannot agree with the majority that the error was harmless. It is the
Government’s “heavy burden” to prove harmlessness. United States v. Ibarra-
Luna, 628 F.3d 712, 717 (5th Cir. 2010). The Government carries this burden


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                                 No. 16-10881

only if it “convincingly demonstrates both (1) that the district court would have
imposed the same sentence had it not made the error, and (2) that it would
have done so for the same reasons it gave at the prior sentencing.” Id. at 714;
accord United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012). In other
words, the Government “must show that the . . . sentence the district court
imposed was not influenced in any way by the erroneous Guidelines
calculation.” Ibarra-Luna, 628 F.3d at 719.
      A district court’s incantation that ‘I would have applied the same
sentence anyway’ does not satisfy this burden if the record does not support
that statement. United States v. Martinez-Romero, 817 F.3d 917, 925–26 (5th
Cir. 2016); United States v. Cardenas, 598 F. App’x 264, 270 (5th Cir. 2015);
United States v. Morales-Sanchez, 609 F.3d 637, 641 (5th Cir. 2010). Here, the
record contains no evidence that the district court would have imposed the
same sentence, for the same reasons, had it not erred.
      Significantly, Rodriguez’s 77 month sentence represents an upward
departure from the correctly calculated Guidelines range. Had the district
court sustained his objection to the enhancement, Rodriguez’s Guidelines
range would have been 57 to 71 months. To support a 77-month sentence, the
district court would have been required to state in open court its “specific
reason for the imposition of a sentence different from [the Guideline range].”
18 U.S.C. § 3553(c); see also Ibarra-Luna, 628 F.3d at 717 (a court must “clearly
articulate” its reasons for departing from the Guidelines, including “why the
range would not serve the goals listed in [18 U.S.C.] Section 3553(a)”). The
district court’s reasons “must also be stated with specificity in [the] statement
of reasons form” accompanying judgment.          § 3553(c).   Neither of these
requirements were satisfied. This is reason enough to vacate and remand.




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                                 No. 16-10881

      Further, looking at what the district court did say leads to the
inescapable conclusion that its sentence was tethered to the incorrect
Guidelines range.    At sentencing, the district court stated its reasons for
imposing a sentence in the middle of the Guidelines range it designated: 70 to
87 months. The court stated, “I have determined this level of sentencing after
consulting with those guidelines and then considering the 3553 factors. In
particular, I have considered the quantity of drugs involved in this case as well
as the cash found as well as the other facts involved in the PSR.” It then
continued,
      I’ve compared those facts with what I consider to be very
      thoughtful letters from the defendant’s wife and mother and . . . a
      well-articulated, expressed letter from his son. In balancing those
      facts with the 3553(a) factors, I believe this is the appropriate
      sentence in that it is sufficient, but not greater than necessary, to
      comply with the statutory purposes of sentencing.
These statements neither explain nor justify an above-Guidelines sentence
under the correctly calculated range of 57 to 71 months. Simply put, “there is
no explanation for the sentence . . . that is not dependent on the erroneous”
Guidelines range. Cardenas, 598 F. App’x at 270; see also Martinez-Romero,
817 F.3d at 925–26; Morales-Sanchez, 609 F.3d at 642.
      The Government has not met its burden of convincingly demonstrating
harmless error. Consequently, we are required to vacate Rodriguez’s sentence
and remand for resentencing. Because we do not, I respectfully dissent.




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