                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4358


UNITED STATES OF AMERICA,

                    Plaintiff – Appellee,

             v.

BOLIVAR HERNANDEZ CARBAJAL,

                    Defendant – Appellant.


Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. James A. Beaty, Jr., Senior District Judge. (1:15-cr-00364-JAB-5)


Argued: October 26, 2017                                      Decided: January 31, 2018


Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and SHEDD, Senior Circuit
Judge.


Affirmed in part, vacated in part, and remanded by unpublished opinion. Chief Judge
Gregory wrote the opinion, in which Judge Keenan and Senior Judge Shedd concur.


ARGUED: Wallace H. Jordan, Jr., WALLACE H. JORDAN, JR., PC, Florence, South
Carolina, for Appellant. Sandra Jane Hairston, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Ripley Rand,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Chief Judge:

       In January 2016, Bolivar Hernandez Carbajal pleaded guilty to a single count of

conspiracy to distribute cocaine. The district court found that under the U.S. Sentencing

Guidelines (“Guidelines”), Carbajal had a total offense level of 29 and a criminal history

category of I, which resulted in an imprisonment range of 87 to 108 months. The district

court sentenced Carbajal to 98 months in prison. Carbajal now appeals his sentence.

       First, he challenges the district court’s grant of a two-level enhancement for

maintaining an apartment in Durham, North Carolina, for the purpose of manufacturing or

distributing drugs.   Because the record contained evidence sufficient to support the

conclusion that Carbajal controlled access to and activities at the apartment, we affirm the

district court’s application of the enhancement.

       Second, Carbajal challenges the district court’s denial of a two-level reduction for

being a minor participant in the conspiracy.        In November 2015, the Sentencing

Commission issued Amendment 794, which clarified the standard that courts should use

when applying the minor-participant reduction. Because the record is unclear as to whether

the district court considered the factors required by the amended standard, we vacate in

part and remand for resentencing.



                                             I.

       The government stumbled across Carbajal while investigating illegal drug

trafficking by Abel Espinoza Garcia in Siler City, North Carolina. Drug Enforcement

Administration (“DEA”) agents determined that Garcia received multiple kilograms of

                                             2
cocaine from shipments transported by Marcos Perez Doval. Doval frequently delivered

large amounts of money to a cocaine supplier in Texas and Mexico and regularly brought

back cocaine to 3300 Shannon Road, Apartment 8A, in Durham, North Carolina

(“Apartment 8A”).

       Carbajal drove a silver Volkswagen Jetta, which DEA agents first spotted at

Apartment 8A in March or April 2015. Doval and Carbajal were the individuals most

frequently seen at the apartment. Using a utility pole surveillance camera, the agents

observed Doval and Carbajal at the apartment at least five or ten times between April and

mid-May 2015. On numerous occasions they carried coolers. Phillip Richard, a lieutenant

with the Chatham County Sheriff’s Office assigned to the DEA’s task force in Greensboro,

testified at sentencing that drug traffickers commonly use coolers to transport drugs and

money. Carbajal went in and out of Apartment 8A freely, left his car out front from one

day to the next, and opened the apartment door for other people from the inside. Only

Carbajal was seen carrying suitcases into Apartment 8A.

       The record is unclear about who owned or leased Apartment 8A, but it is undisputed

that the lessee was not Carbajal, who lived at the time in Elgin, Illinois. There is also no

evidence that Carbajal had a key to the apartment or actually spent the night there.

       On May 16, 2015, DEA agents watched Carbajal drive his silver Jetta from

Apartment 8A to a nearby garage that Doval used to store his car. Carbajal met Doval and

an unidentified woman, who placed a cooler and a suitcase in Carbajal’s car. Then Carbajal

drove Doval and the woman back to Apartment 8A. There, DEA agents detained Doval,

Carbajal, and the woman while a K-9 walked around Carbajal’s car. After a positive alert,

                                             3
the agents searched the car and located 8.98 kilograms of cocaine in the cooler, as well as

the garage door opener for the nearby garage.

       The DEA agents obtained a search warrant and searched Apartment 8A that same

day. Richard participated in the search and testified at sentencing that the apartment

appeared to be a stash house: it contained packaging materials consistent with

manufacturing and packaging drugs but almost no furniture, and it was not set up “for

living conditions.” J.A. 26. The DEA agents also located documents in the names of Doval

and Carbajal, and a suitcase containing unidentified male clothing. Under a second

warrant, the agents searched the nearby garage, where they located shrink wrap packaging

and Doval’s car, which had a hidden compartment along the entire length of the dashboard.

       In October 2015, a federal grand jury indicted Carbajal, Doval, and five other

codefendants for a single count of distributing cocaine in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(C), and 846. Garcia and six other related defendants were indicted

separately. Carbajal pleaded guilty on January 5, 2016.

       In the presentence report, the probation officer concluded that Carbajal was

accountable for the 8.98 kilograms of cocaine recovered on May 16, 2016, and thus had a

base offense level of 30. The probation officer applied a two-level increase for maintaining

a premises for the purpose of distributing drugs (U.S. Sentencing Guidelines Manual §

2D1.1(b)(12) (U.S. Sentencing Comm’n 2015)), and a three-level decrease for accepting

responsibility (U.S. Sentencing Guidelines Manual §§ 3E1.1(a), (b) (U.S. Sentencing

Comm’n 2015)). With a total offense level of 29 and a criminal history category of I, the

Guidelines recommended a sentence of 87 to 108 months. Carbajal objected to the two-

                                             4
level increase and also contended that he qualified for a two-level decrease for playing only

a minor role in the offense (U.S. Sentencing Guidelines Manual §3B1.2(b) (U.S.

Sentencing Comm’n 2015)).

       The district court held a sentencing hearing on May 11, 2016, and denied both of

Carbajal’s challenges. The court sentenced Carbajal to 98 months imprisonment, the same

sentence the court imposed earlier that day on Doval.



                                             II.

       This Court has jurisdiction under 28 U.S.C. § 1291. “We review the sentence

imposed by a district court under a ‘deferential abuse-of-discretion standard.’ We review

factual findings for clear error, and legal conclusions de novo.” United States v. Davis,

679 F.3d 177, 182 (4th Cir. 2012) (quoting Gall v. United States, 552 U.S. 38, 40 (2007)).

                                             A.

       First, Carbajal challenges the application of a two-level enhancement for

“maintain[ing] a premises for the purpose of manufacturing or distributing a controlled

substance.”   §2D1.1(b)(12) (the “premises enhancement”).          Carbajal argues that the

government has not met its burden to show by preponderance of the evidence that he

maintained Apartment 8A.        See U.S. Sentencing Guidelines §6A1.3(a) cmt. (U.S.

Sentencing Comm’n 2015).

       To determine whether a defendant “maintained” a premises, a court should consider

“(A) whether the defendant held a possessory interest in (e.g., owned or rented) the

premises and (B) the extent to which the defendant controlled access to, or activities at, the

                                              5
premises.” §2D1.1 cmt. n.17. “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[.]” Id. “Maintaining” a premises encompasses storing a

controlled substance “for the purpose of distribution.” Id. The sentencing 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.” Id.

       Here, both sides agree that Carbajal did not have a possessory interest in the

apartment. Carbajal also does not dispute that the primary use—indeed, the sole use—of

Apartment 8A was for the storage and distribution of drugs. Thus, the only question this

Court must answer is whether the district court erred in finding that Carbajal “knowingly

maintain[ed]” Apartment 8A by “controll[ing] access to, or activities at, the premises.” Id.

       This Court has not issued a published opinion construing the premises enhancement,

so we look to our unpublished cases for persuasive authority. Several of these cases suggest

that application of the premises enhancement is a fact-specific inquiry that considers the

totality of the circumstances. In United States v. Clark, for example, this Court upheld the

application of the premises enhancement even though the apartment was owned and rented

by others, Clark lived in a different state, and there was no evidence that she had a key.

665 F. App’x 298, 301, 303 (4th Cir. 2016) (per curiam). The panel concluded that

“Clark’s regular stays at the Ocean View apartment, her plenary access thereto, and her

integral participation in the rampant drug activity therein is enough to confirm that she

                                             6
‘controlled’ the premises and thus ‘maintained’ it for drug-related purposes.” Id. at 303–

04 (listing eight pieces of evidence). Likewise, in United States v. Christian, this Court

upheld application of the enhancement even though Christian did not own, lease, or pay

expenses for the apartment, nor live there exclusively. 544 F. App’x 188, 190–91 (4th Cir.

2013) (per curiam). The panel found sufficient evidence of control because Christian (1)

regularly travelled between the apartment and the place where he distributed drugs; (2) had

a key to the apartment and stayed there regularly; and (3) “‘controlled’ a chest and a safe

in the master bedroom, which contained a great deal of money and drugs, as well as two

firearms.” Id.

       The other federal circuit courts have likewise employed a fact-specific, totality-of-

the-circumstances approach to applying the premises enhancement. E.g., United States v.

George, 872 F.3d 1197, 1205–06 (11th Cir. 2017) (collecting cases); United States v.

Jones, 778 F.3d 375, 385–86 (1st Cir. 2015) (upholding application of the enhancement to

an apartment in which Jones lacked a possessory interest because Jones (1) had a key; (2)

“came and went at will”; (3) “slept there whenever he pleased”; (4) was the only person to

keep clothes and toiletries there; (5) furnished a key to his coconspirator; and (6) delivered

rent payments); United States v. Garcia, 774 F.3d 472, 475 (8th Cir. 2014) (per curiam)

(upholding application of the enhancement to a house in which Garcia lacked a possessory

interest because he had free access to the premises, mowed the lawn, took out the garbage,

and regularly used the garage to store materials necessary for the drug conspiracy); United

States v. Flores-Olague, 717 F.3d 526, 532–34 (7th Cir. 2013) (considering a variety of

factors, including the “frequency and significance of the illicit activities,” the storage of

                                              7
drug paraphernalia, and the authoritarian treatment of the home’s co-residents, to conclude

that Flores-Olague used his home for drug-related purposes); United States v. Miller, 698

F.3d 699, 705–07 (8th Cir. 2012) (considering a variety of factors, including the

maintenance of business records, interactions with customers, acceptance of payment, and

number of drug transactions, to determine that the principal use of a residence was drug

trafficking).

       Carbajal challenges the district court’s conclusion by distinguishing the facts of his

case from the evidence that several of the other federal circuit courts have considered

sufficient to warrant application of the premises enhancement. Appellant Br. 7–8, 9–10

(citing Jones, 778 F.3d at 385; Garcia, 774 F.3d at 475; United States v. Bell, 766 F.3d 634

(6th Cir. 2014)). But Carbajal’s argument is unavailing for the very reason articulated by

the Sixth Circuit in Bell: although a court might find some facts sufficient to support

application of the enhancement in one case, those same facts do not become necessary for

application of the enhancement in every case. 766 F.3d at 637–38.

       Here, the facts presented to the district court are sufficient to conclude that Carbajal

“controlled access to, or activities at, the premises,” §2D1.1 cmt. n.17: (1) Carbajal went

in and out of the apartment freely, and sometimes opened the door for others from inside;

(2) he was seen at the apartment five to ten times between April and mid-May 2015; (3) he

and Doval carried coolers, which are often used to transport drugs, into and out of the

apartment numerous times; (4) he was the only person seen carrying a suitcase into the

apartment, and DEA agents located a suitcase with male clothing in the apartment; (5) he



                                              8
parked his car in front of the apartment overnight; and (6) at least one document with

Carbajal’s name on it was in the apartment.

       While none of these facts alone is dispositive, the sum total of the evidence reveals

that the district court did not clearly err in concluding that Carbajal “maintained”

Apartment 8A “for the purpose of manufacturing or distributing a controlled substance.”

§2D1.1(b)(12). As in Clark, neither the fact that Carbajal did not own or lease the

apartment nor the lack of evidence that he had a key are dispositive. See 665 F. App’x at

303; §2D1.1 cmt. n.17. Instead, the totality of the evidence shows that Carbajal had free

access to and control over Apartment 8A. See Clark, 665 F. App’x at 303; Jones, 778 F.3d

at 385–86; Garcia, 774 F.3d at 475; Christian, 544 F. App’x at 191. And critically, the

apartment to which Carbajal had free access and over which he had control was used

frequently and exclusively for drug storage and distribution. See §2D1.1 cmt. n.17. As a

result, the district court did not err in granting the premises enhancement.

                                              B.

       Second, Carbajal challenges the district court’s denial of a two-level reduction for

being “a minor participant in any criminal activity.” §3B1.2(b) (the “minor-participant

reduction”). A minor participant is one who “is less culpable than most other participants

in the criminal activity, but whose role could not be described as minimal.” * §3B1.2 cmt.

5. Application of the minor-participant reduction is a fact-specific determination “based



       *
        A minimal participant receives a four-level decrease for lacking “knowledge or
understanding of the scope and structure of the enterprise and of the activities of others.”
§3B1.2 cmt. 4.
                                              9
on the totality of the circumstances.” §3B1.2 cmt. 3(C). Carbajal “bears ‘the burden of

proving, by a preponderance of the evidence, that he is entitled to a mitigating role

adjustment in sentencing.’” United States v. Powell, 680 F.3d 350, 358–59 (4th Cir. 2012)

(quoting United States v. Pratt, 239 F.3d 640, 645 (4th Cir. 2001)). This Court reviews

“for clear error the district court’s determination” that a defendant “failed to show his

entitlement to such an adjustment.” Id.

       The minor-participant reduction can be applied to convictions for concerted

criminal activity so long as the defendant “is accountable under § 1B1.3 (Relevant

Conduct) only for the conduct in which the defendant personally was involved” and

“perform[ed] a limited function in the criminal activity.” § 3B1.2 cmt. 3(A). The

Sentencing Commission has specifically noted that “a defendant who is convicted of a drug

trafficking offense, whose participation in that offense was limited to transporting or

storing drugs and who is accountable under § 1B1.3 only for the quantity of drugs the

defendant personally transported or stored may receive an adjustment under this

guideline.” Id. Here, Carbajal was indicted for one count of conspiracy to distribute

cocaine. Although the conspiracy was large, Carbajal is accountable under § 1B1.3 for

only the 8.98 kilograms of cocaine that he personally helped transport on May 16, 2016.

As a result, he is eligible for the minor-participant reduction. § 3B1.2 cmt. 3(A). The only

question for this Court is whether the district court erred by denying it.

       In Powell, the Fourth Circuit’s most recent published opinion construing the minor-

participant reduction, this Court held that “the ‘critical inquiry’ for a sentencing court, in

considering a § 3B1.2 adjustment, is ‘not just whether the defendant has done fewer “bad

                                             10
acts” than his codefendants, but whether the defendant’s conduct is material or essential to

committing the offense.’” 680 F.3d at 359 (quoting Pratt, 239 F.3d at 646). We required

district courts to “measure the defendant’s ‘individual acts and relative culpability against

the elements of the offense of conviction,’ not merely against the criminal enterprise as a

whole.” Id. (quoting Pratt, 239 F.3d at 646).

       But on November 1, 2015, the Sentencing Commission issued Amendment 794,

which implicitly rejected the Powell standard and clarified how the minor-participant

reduction should be applied.        The Commission announced Amendment 794 after

conducting a survey and discovering that the “mitigating role is applied inconsistently and

more sparingly than the Commission intended.” U.S. Sentencing Guidelines Manual, app.

C, amend. 794, at 117 (U.S. Sentencing Comm’n Supp. Nov. 1, 2015). The Commission

noted that at least four federal circuit courts had “denied a mitigating role adjustment solely

because [the defendant] was ‘integral’ or ‘indispensable’ to the commission of the offense.”

Id. at 118.

       Amendment 794 made three key changes to the Guidelines commentary for § 3B1.2.

First, the Commission clarified that whether “a defendant performs an essential or

indispensable role in the criminal activity is not determinative.” § 3B1.2 cmt. 3(C).

Second, the Commission clarified that a defendant should receive the reduction if she is

“substantially less culpable than the average participant in the criminal activity.” Id.

(emphasis added). In other words, a sentencing court must compare the culpability of the

defendant to her codefendants in the criminal enterprise for which she has been convicted,

not other defendants convicted of the same offense generally. U.S. Sentencing Guidelines

                                              11
Manual, app. C, amend. 794, at 117. Finally, the Commission added five non-exhaustive

factors that courts should consider when applying § 3B1.2:

       (i)     the degree to which the defendant understood the scope and structure
               of the criminal activity;

       (ii)    the degree to which the defendant participated in planning or
               organizing the criminal activity;

       (iii)   the degree to which the defendant exercised decision-making
               authority or influenced the exercise of decision-making authority;

       (iv)    the nature and extent of the defendant’s participation in the
               commission of the criminal activity, including the acts the defendant
               performed and the responsibility and discretion the defendant had in
               performing those acts;

       (v)     the degree to which the defendant stood to benefit from the criminal
               activity.

§ 3B1.2 cmt. 3(C).

       Amendment 794 abrogates our prior holding in Powell. It is well established in this

Circuit that the Sentencing Commission has “power to override our precedent through

amendments to the Guidelines.” United States v. Williams, 808 F.3d 253, 258 (4th Cir.

2015) (collecting cases). “When the circuits have split on the application of a Guidelines

provision, the Commission typically resolves such a disagreement by promulgating a

‘clarifying amendment,’ which does not alter ‘the legal effect of the guidelines, but merely

clarifies what the Commission deems the guidelines to have already meant.’” Id. (quoting

United States v. Goines, 357 F.3d 469, 474 (4th Cir. 2004)). “[I]f a clarifying amendment

‘conflicts with our precedent,’ we recognize that it has ‘the effect of changing the law in

this circuit.’” Id. (quoting Goines, 357 F.3d at 474). By resolving a split in the circuits

and explaining how § 3B1.2 should be applied, Amendment 794 is just such a clarifying

                                            12
amendment and has therefore changed how sentencing courts in this circuit apply the

minor-participant reduction.

       In light of Amendment 794, “the ‘critical inquiry’ for a sentencing court, in

considering a § 3B1.2 adjustment,” Powell, 680 F.3d at 359, is whether the defendant was

“substantially less culpable than the average participant” in the broader “criminal activity”

for which he was convicted. § 3B1.2 cmt. 3(C). The court measures relative culpability

by examining the five factors identified by the Commission, along with any other factors

the court might consider relevant. The five factors are not exclusive, and no single factor

is dispositive. The sentencing court “may grant a minor role reduction even if some of the

factors weigh against doing so, and it may deny a minor role reduction even if some of the

factors weigh in favor of granting a reduction.” United States v. Quintero-Leyva, 823 F.3d

519, 523 (9th Cir. 2016). The defendant bears the burden of defining (by preponderance

of the evidence) his culpability as compared to the culpability of the “average participant.”

The defendant also bears the burden of defining the scope of the “criminal activity” against

which he is to be compared.

       At sentencing and in his briefs before this Court, Carbajal argues that he was merely

a courier and therefore substantially less culpable than Doval, his local co-conspirator. J.A.

15–17, Appellant Br. 12–13.        Although Amendment 794’s clarifications applied to

Carbajal’s request for a minor-participant reduction, we cannot determine from the record

whether the district court analyzed Carbajal’s culpability relative to the average participant

in the conspiracy or considered the factors now listed in the commentary to § 3B1.2. Thus,

we believe the most prudent step is to vacate and remand for resentencing, as several of

                                             13
the other federal circuit courts have done. See Quintero-Leyva, 823 F.3d at 523–24

(reversing and remanding for resentencing where “the record is unclear as to whether the

court considered all the factors”); United States v. Cruickshank, 837 F.3d 1182, 1195 (11th

Cir. 2016) (reversing and remanding for the district court to take into account the factors

laid out in Amendment 794).



                                            III.

       For the foregoing reasons, the judgment of the district court is



                         AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




                                             14
