         Case: 17-13725   Date Filed: 04/04/2019   Page: 1 of 26


                                                        [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 17-13725
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 5:16-cr-00017-MTT-CHW-3



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus

CURTIS HOLMES,
a.k.a. CJ,

                                                        Defendant-Appellant.


                     ________________________

                           No. 17-13728
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 5:16-cr-00017-MTT-CHW-1



UNITED STATES OF AMERICA,
          Case: 17-13725   Date Filed: 04/04/2019   Page: 2 of 26


                                                              Plaintiff-Appellee,

                                 versus

GEOFFREY LARRY,
a.k.a. Jeff,

                                                         Defendant-Appellant.


                      ________________________

                            No. 17-13931
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 5:16-cr-00017-MTT-CHW-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

NICHOLAS J. LARRY,
a.k.a. Nick,

                                                         Defendant-Appellant.

                      ________________________

              Appeals from the United States District Court
                  for the Middle District of Georgia
                     ________________________

                             (April 4, 2019)



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Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Geoffrey Larry, Nicholas Larry, and Curtis Holmes appeal on several

grounds their sentences imposed by the district court after they each pleaded guilty

to one count of distributing cocaine base. Geoffrey, Nicholas, and Holmes argue

that the district court erred in calculating their base offense levels under U.S.S.G.

§ 2D1.1 by including drug quantities based on information provided by unreliable

confidential informants. Geoffrey and Holmes challenge the district court’s

application of a two-level enhancement under § 2D1.1(b)(12) for maintaining a

premises for the purpose of manufacturing or distributing a controlled substance

(“premises enhancement”). Geoffrey also argues that the district court erred by

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

the offense (“firearm enhancement”) and by assigning him two additional criminal

history points under § 4A1.1(d) for committing the instant offense during a prior

sentence of probation. After careful consideration of the briefs and the record, we

affirm.

                                I.     BACKGROUND

      Geoffrey, Nicholas, and Holmes came to the attention of state and federal

law enforcement after local authorities identified them as individuals suspected of

being involved in a drug distribution organization. During the resulting


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investigation, state agents interviewed a county jail inmate who told them that

Geoffrey was a main provider of cocaine in the Macon County, Georgia area who

supplied his brother Nicholas and others with cocaine for distribution. The

informant stated that Nicholas sold cocaine from a house on MLK Jr. Drive in

Montezuma, Georgia, which was called the “Pink House.” Doc. 143 at 10 ¶ 12. 1

Authorities also received reports of the smell of marijuana coming from inside an

apartment located on Vienna Road in Montezuma (“Vienna Road apartment”),

where Geoffrey and his sister lived.

      Law enforcement used confidential informants to purchase crack cocaine

from Geoffrey and Nicholas on several occasions. Informants purchased crack

from Nicholas and Geoffrey at a convenience store and at a home located at 312

River Road in Montezuma (“River Road house”). According to these informants,

Holmes was present for at least two of these purchases at the River Road house.

The informants also reported that during the purchases multiple firearms sat on a

table near where Nicholas and Holmes had been sitting.

      Law enforcement eventually executed search and arrest warrants at the River

Road house, the Vienna Road apartment, and other locations.2 At the River Road

house, agents discovered powder cocaine, crack cocaine, and marijuana, among


      1
          Citations to “Doc. #” refer to numbered entries on the district court’s docket.
      2
          The Pink House suffered severe fire damage before the search warrants were executed.

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other things. At the Vienna Road apartment, law enforcement found a kitchen

cabinet containing powder cocaine, various items commonly used to turn powder

cocaine into crack, and Geoffrey’s driver’s license. The searches produced a total

of 80.73 grams of cocaine base, 68 grams of powder cocaine, 25 grams of

marijuana, and four firearms. Geoffrey, Nicholas, and Holmes were indicted for

several offenses; each pleaded guilty to one count of distributing cocaine base.

      Before sentencing, a probation officer prepared presentence investigation

reports for Geoffrey, Nicholas, and Holmes. For Sentencing Guidelines purposes,

the probation officer determined that the drug quantity for all three defendants

included 25 grams of marijuana, 68 grams of cocaine, and 80.73 grams of crack

cocaine, which equated to approximately 302 kilograms of marijuana. The

probation officer assigned each defendant a base offense level of 24 under

U.S.S.G. § 2D1.1(a)(5), (c)(8) for an offense involving at least 100 kilograms but

less than 400 kilograms of marijuana. The defendants each received a two-level

enhancement pursuant to § 2D1.1(b)(1) for possession of a dangerous weapon.

The probation officer also added a two-level enhancement for each defendant

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

or distributing a controlled substance. Each defendant’s offense level was reduced

by three levels for acceptance of responsibility under § 3E1.1, rendering a total

offense level of 25.

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      For Geoffrey, the probation officer calculated three criminal history points

based on his prior convictions. Because the instant offense was committed while

Geoffrey was on probation for a 2014 conviction for driving under the influence of

alcohol and driving with a suspended license, the probation officer added two

points under U.S.S.G. § 4A1.1(d). Geoffrey’s five criminal history points placed

him in a criminal history category of III. With a total offense level of 25 and a

criminal history category of III, his advisory guideline range was 70 to 87 months’

imprisonment.

      For Nicholas, the probation officer calculated three criminal history points

based on his prior convictions, placing him in criminal history category II. With a

total offense level of 25 and a criminal history category of II, Nicholas’s advisory

guideline range was 63 to 78 months’ imprisonment.

      For Holmes, the probation officer calculated seven criminal history points

based on his prior convictions. Because Holmes committed the instant offense

while on probation for a 2004 conviction for selling marijuana, the probation

officer added two points under § 4A1.1(d). Holmes’s nine criminal history points

placed him in criminal history category IV. With a total offense level of 25 and a

criminal history category of IV, Holmes’ advisory guideline range was 84 to 105

months’ imprisonment.




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      The government objected to the probation officer’s base offense level

calculation for each defendant on the ground that the probation officer failed to

include drug quantities from various drug sales to confidential informants. At

sentencing, the district court held an evidentiary hearing where the government

presented testimony supporting its objections. The government called as witnesses

law enforcement officers who testified about additional drug sales the defendants

allegedly made to confidential informants outside the officers’ presences. Brian

Queener, an agent with the federal Bureau of Alcohol, Tobacco, Firearms, and

Explosives, testified that one of these informants, CI-1, told Queener that the

informant had met Nicholas and Geoffrey through CI-1’s girlfriend. According to

CI-1, his girlfriend bought a total of 23 ounces of crack cocaine from the brothers’

father over a three-month period in 2015; Geoffrey would supply the drugs to his

father each time. Queener also testified that CI-1 stated that at some point CI-1’s

girlfriend began to deal with Nicholas, who sold her 18 additional ounces of crack

cocaine; Queener was unsure whether this occurred in one purchase or was the

aggregate of several smaller purchases. CI-1 informed Queener that he also

purchased a total of 9 ounces of crack directly from Geoffrey in a series of small

transactions. Queener testified he was aware that CI-1 had a felony conviction and

that the GBI paid him in small amounts.




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      Queener testified that he also spoke with a second confidential informant,

CI-2. CI-2 told Queener that he had previously purchased drugs from the Larry

brothers for personal use. CI-2 also told Queener that throughout 2014 he

purchased one ounce of crack cocaine per week for another person. For half of

2015, CI-2 continued buying one ounce of crack cocaine per week for this person;

CI-2 also purchased an extra half-ounce each week to give to a second person.

      On cross-examination, Queener testified that CI-1 told him about CI-1’s

history with the Larry brothers and Holmes five months after Geoffrey had been

arrested. Queener also stated that to protect CI-1’s safety he did not corroborate

CI-1’s accounts with the girlfriend; nor did Queener check the girlfriend’s phone

records to confirm that she in fact had set up the purchases. Queener noted that

there was no surveillance of these transactions. He admitted that he did not

personally review CI-1’s criminal history, but he knew that the informant had

provided other reliable information. Queener further stated that although CI-2 said

he was not buying crack for himself, agents never drug tested him while he served

as an informant.

      After hearing this evidence and the parties’ arguments, the district court

agreed with the government that the drug quantity used to calculate the defendants’

base offense level should have been higher. Based on CI-1’s reports of purchasing

50 ounces of crack cocaine from the defendants, the court accepted the

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government’s proposal that 25 out of the 50 ounces should be included in the drug

quantity. Based on CI-2’s account, the court determined that he bought 91 ounces

of crack cocaine from the defendants. The district court accepted the government’s

proposal to include 45 of the 91 ounces in the drug quantity. The court also found

that the total drug quantity was attributable to each defendant.

      In sentencing Geoffrey, Nicholas, and Holmes, the court determined that the

drug quantity for each defendant, based on the equivalent amount of marijuana for

the drugs at issue, was 7,305.6 kilograms; this resulted in a base offense level of 32

for an offense involving between 3,000 and 10,000 kilograms of marijuana.

Applying the premises and firearm enhancements and a reduction for acceptance of

responsibility for all three defendants, the district court calculated the total offense

level as 33 for each defendant. After determining that Geoffrey’s advisory

guideline range was 168 to 210 months’ imprisonment, the court sentenced

Geoffrey to 170 months. The court calculated Nicholas’s guideline range as 151 to

188 months’ imprisonment and sentenced Nicholas to 155 months. After

calculating Holmes’s range as 188 to 235 months’ imprisonment, the court varied

downwards and imposed a 170-month sentence.

                           II.    STANDARD OF REVIEW

      We review the district court’s interpretation of the Sentencing Guidelines de

novo and its factual findings for clear error. United States v. Torrealba, 339 F.3d

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1238, 1242 (11th Cir. 2003). Clear error arises only where “we are left with a

definite and firm conviction that a mistake has been committed.” United States v.

Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (internal quotation marks

omitted).

                                 III.   DISCUSSION

      Geoffrey, Nicholas, and Holmes appeal their sentences on several grounds.

They each argue that the district court erred in calculating their base offense levels

by improperly relying on the officers’ hearsay testimony relaying statements made

by CI-1 and CI-2. Geoffrey and Holmes appeal the district court’s application of

the premises enhancement. Geoffrey also appeals the application of the firearm

enhancement. In addition, Geoffrey appeals the district court’s calculation of his

criminal history category, specifically the court’s finding that he committed the

instant offense while serving a prior sentence.

      We first discuss the district court’s consideration of the hearsay testimony

relaying the information from the confidential informants. We then discuss the

court’s application of the premises enhancement, followed by the firearm

enhancement. We lastly turn to the district court’s calculation of Geoffrey’s

criminal history.




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A.    The District Court Did Not Clearly Err in Considering Hearsay
      Testimony to Calculate the Drug Amounts.

      Geoffrey, Nicholas, and Holmes argue that the district court erred in relying

on the officers’ hearsay testimony about CI-1 and CI-2 to calculate their base

offense levels. They contend the district court erred by failing to explicitly find

that CI-1 and CI-2 were credible and by concluding that the information provided

by the confidential informants was corroborated by the record. Nicholas and

Holmes argue that CI-1’s failure to provide details about whether his girlfriend was

with him or whether the drug sales happened in one transaction or multiple showed

a lack of credibility. Nicholas and Holmes also argue that CI-2’s crack cocaine

addiction and criminal history, including a past conviction for fraud or theft,

undermined his credibility.

      The government responds that the district court twice explicitly found the

confidential informants credible. The government further contends that regardless

of whether the district court explicitly found the confidential informants credible,

the court did not err in relying on the hearsay testimony because the informants’

accounts were supported by the record.

      When a defendant objects to the drug quantity, the government bears the

burden of proving the disputed amount by a preponderance of the evidence.

United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). If the amount of

contraband seized does not reflect the scale of the offense, a sentencing court must
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“approximate the quantity of the controlled substance.” Id. (internal quotation

marks omitted). The court may base its calculation “on evidence showing the

average frequency and amount of a defendant’s drug sales over a given period of

time.” Id. (internal quotation marks omitted). “Although sentencing may be based

on fair, accurate, and conservative estimates of the quantity of drugs attributable to

a defendant, sentencing cannot be based on calculations of drug quantities that are

merely speculative.” United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir.

1998).

      A sentencing court may consider evidence in the form of hearsay in

determining whether to enhance a defendant’s sentence. United States v. Ghertler,

605 F.3d 1256, 1269 (11th Cir. 2010). Nonetheless, the evidence must have

sufficient indicia of reliability, the district court generally must make explicit

credibility findings, and the defendant must have an opportunity to rebut the

evidence. Id. Even when a district court does not make explicit credibility

findings, “the absence of such findings does not necessarily require reversal or

remand where the reliability of the statements is apparent from the record.” United

States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000).

      Here, the district court made two statements at sentencing about the

confidential informants’ credibility. First, in overruling an objection to their

credibility, the court stated that “looking at the evidence overall, the accounts of

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the confidential informants are consistent with the other evidence obtained during

the course of the investigation.” Doc 195 at 180. Second, the district court

observed:

      So accepting that there’s credibility issues with regard to confidential
      informants always, we all know where the government gets confidential
      informants from. They don’t come in squeaky clean. And I accept that.
      And I take the credibility issues into account. But there is corroboration
      here of precisely what these two CIs reported from all the other
      evidence that we’ve heard and is detailed in the presentence report.

Doc. 195 at 241. These statements were sufficient to satisfy the requirement that

the district court make explicit credibility findings regarding the informants’

accounts.

      We next consider whether the court erred in finding that the informants’

accounts were sufficiently reliable. The Sentencing Guidelines allow a district

court to “consider relevant information without regard to its admissibility under the

rules of evidence applicable at trial, provided that the information has sufficient

indicia of reliability to support its probable accuracy.” United States v. Docampo,

573 F.3d 1091, 1098 (11th Cir. 2009) (quoting U.S.S.G. § 6A1.3(a)). Where, as

here, a defendant has an opportunity to refute the evidence, a sentencing court may

consider hearsay testimony bearing “minimal indicia of reliability.” United States

v. Bourne, 130 F.3d 1444, 1447 (11th Cir. 1997) (internal quotation marks

omitted). To establish that hearsay evidence lacks minimal indicia of reliability, “a

defendant must show (1) that the challenged evidence is materially false or
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unreliable and (2) that it actually served as the basis for the sentence.” Ghertler,

605 F.3d at 1269.

      We conclude that the hearsay testimony regarding the accounts of CI-1 and

CI-2 bore at least minimal indicia of reliability because the record corroborates the

informants’ accounts. The informants’ accounts of regularly purchasing

approximately an ounce of crack cocaine at a time, over an extended period,

matched the information that law enforcement had gathered over the nearly two-

year investigation. Law enforcement used the informants to purchase around an

ounce of crack cocaine on multiple occasions. The searches of the River Road

house, the Vienna Road apartment, and other homes produced more than 80 grams

of crack cocaine, 68 grams of powder cocaine, and materials used to turn powder

cocaine into crack. Although Nicholas and Holmes argue that CI-2 was unreliable

because of his past drug use and criminal history, these circumstances alone are

insufficient to render CI-2 unreliable, absent some evidence presented by the

defendants showing that CI-2’s memory was faulty due to a drug addiction or past

dishonesty. See United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997)

(“[T]he fact that the witness has consistently lied in the past, engaged in various

criminal activities, and thought that his testimony would benefit him . . . does not

make his testimony incredible.” (alterations adopted) (internal quotation marks

omitted)), modified on other grounds by United States v. Toler, 144 F.3d 1423,

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1426-28 (11th Cir. 1998); United States v. Lee, 68 F.3d 1267, 1276 (11th Cir.

1995) (“[T]he mere fact that these witnesses were drug users does not

automatically prove that they are unreliable. [The defendant] has pointed to no

evidence [that] indicates that these witnesses were addicts with impaired

memories, which would call their testimony into question.”). Because the

informants’ accounts were sufficiently reliable, the district court did not clearly err

in relying on the hearsay statements to calculate the drug quantities attributable to

Geoffrey, Nicholas, and Holmes. 3

       In support of their argument that the informants’ accounts were unreliable,

Geoffrey, Nicholas, and Holmes cite United States v. Frazier, 89 F.3d 1501 (11th

Cir. 1996). In Frazier, we reviewed a district court’s findings as to the quantity of

drugs attributable to three co-defendants who had been convicted of narcotics and

firearms violations. Frazier, 89 F.3d at 1503, 1505-07. The district court had

attributed increased drug quantities to these individuals based on a witness’s

testimony that the three had repeatedly sold an undetermined amount of drugs over

an extended period of time. Id. at 1505-07. This witness testified that one of the

individuals was “selling cocaine on a daily basis”; the witness also testified that the


       3
         The government argues that because no defendant raised before the district court the
arguments they each raise on appeal concerning the district court’s drug-quantity finding, this
issue should be reviewed for plain error. We disagree. All the defendants raised the issue of the
informants’ credibility at sentencing.


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two remaining co-defendants “sold cocaine base two or three days per week during

the summer.” Id. at 1506-07. We noted that the witness did not testify to the

specific amounts of drugs each co-defendant sold, nor did the court make specific

findings as to the amount of drugs involved in each transaction or the number of

transactions that occurred. Id. We vacated the district court’s calculation of the

co-defendants’ sentences based on this witness’s testimony because the testimony

was insufficiently specific. Id.

       Frazier does not compel us to vacate the district court’s calculation of the

drug quantities attributable to Geoffrey, Nicholas, or Holmes. Unlike in Frazier,

the informants in this case, CI-1 and CI-2, testified to purchasing specific

quantities of drugs from the three defendants over defined periods of time. The

district court in this case thus relied on evidence that was more specific than the

evidence before the district court in Frazier. The appellants’ reliance on Frazier is

therefore misplaced. 4




       4
         The defendants also rely on United States v. Singleton, 545 F.3d 932 (11th Cir. 2008).
In Singleton, a defendant challenged a district court’s calculation of the drug quantity used to
calculate his sentence. Singleton, 545 F.3d at 934. Law enforcement had found powder cocaine
and baking soda in the defendant’s motel room. Id. at 935. The district court in calculating the
drug quantity attributable to the defendant assumed that all the powder cocaine could be
converted to crack cocaine. Id. We concluded that the district court’s calculation of the drug
quantity was impermissibly speculative because the district court found that law enforcement had
recovered an insufficient amount of baking soda to convert all the powder cocaine to crack
cocaine. Id. Singleton does not disturb our conclusion because it is factually distinct.

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B.    The District Court Did Not Err in Applying the Premises Enhancement.

      We next discuss the challenges to the district court’s application of the two-

level premises enhancement under U.S.S.G. § 2D1.1(b)(12) brought by Geoffrey

and Holmes. Geoffrey contends that the language of § 2D1.1(b)(12) and the

guidelines’ commentary required the district court to rely on evidence tying him

directly to manufacturing or distributing drugs in or from the houses, rather than

relying on the reasonably foreseeable conduct of co-conspirators. Holmes argues

that the enhancement should not have applied because the River Road house was

primarily used as a residence and only collaterally used for drug sales.

      The government responds that Geoffrey’s narrow interpretation of

§ 2D1.1(b)(12) conflicts with the totality-of-the-circumstances approach

articulated by this Court. According to the government, although Geoffrey never

had a possessory interest in the houses, there was ample evidence that he supplied

the drugs that were used there. As an alternative basis for affirming the

enhancement’s application to Geoffrey, the government contends that he

maintained the Vienna Road apartment as a drug premises, as evidenced by his

exclusive control over and possession of the two kitchen cabinets that he used to

store drugs and materials for manufacturing cocaine base. The government further

argues that the § 2D1.1(b)(12) enhancement applied to Holmes because the drug

activity occurring at both houses was more than incidental or collateral.

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       We first consider Geoffrey’s argument that the district court erred in

applying the premises enhancement by considering the relevant conduct of other

members of the drug sale conspiracy. The question whether a sentencing court

misapplied the guidelines by enhancing a defendant’s sentence based on the jointly

undertaken criminal activity of a defendant’s co-conspirators involves an

interpretation of the guidelines that we review de novo. United States v. Salgado,

745 F.3d 1135, 1138 (11th Cir. 2014).

       Section 2D1.1(b)(12) of the guidelines adds a two-level enhancement “[i]f

the defendant maintained a premises for the purpose of manufacturing or

distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12). In calculating a

defendant’s guideline range, a sentencing court must consider all relevant conduct

in the offense, including in some cases the conduct of others acting in concert with

the defendant. United States v. Chavez, 584 F.3d 1354, 1367-68 (11th Cir. 2009)

(citing U.S.S.G. § 1B1.3(a)(1)). As a general matter, a court considering the

application of an enhancement under chapter two of the guidelines may hold a

defendant accountable for acts and omissions of other participants in a “jointly

undertaken criminal activity,” as long as the others’ conduct was (i) within the

scope of the joint activity, (ii) in furtherance of this criminal activity, and (iii)

reasonably foreseeable in connection with the criminal activity. U.S.S.G.

§ 1B1.3(a)(1)(B). As an exception to this general rule, a sentencing court must not

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enhance a defendant’s sentence based on the jointly undertaken criminal activity of

a defendant’s co-conspirators when a guideline specifies otherwise. Id. § 1B1.3(a).

      In determining whether the district court properly applied the premises

enhancement based on the conduct of Geoffrey’s co-conspirators, we are guided by

our decisions in United States v. Cook, 181 F.3d 1232 (11th Cir. 1999), and United

States v. McClain, 252 F.3d 1279 (11th Cir. 2001). In Cook, we considered

whether a sentencing court could enhance the sentences of two co-defendants

pursuant to U.S.S.G. § 3C1.2 based the conduct of other members of the

conspiracy. See Cook, 181 F.3d at 1234. Section 3C1.2 instructed sentencing

courts to apply a two-level enhancement “ ‘[i]f the defendant recklessly created a

substantial risk of death or serious bodily injury to another person in the course of

fleeing from a law enforcement officer.’ ” Id. at 1233 (quoting U.S.S.G. § 3C1.2).

An application note stated that “ ‘[u]nder this section, the defendant is accountable

for his own conduct and for conduct that he aided or abetted, counseled,

commanded, induced, procured, or willfully caused.’ ” Id. at 1233-34 (quoting

§ 3C1.2 cmt. n.5.). We concluded that the application note specified an exception

to the general rule found in § 1B1.3(a)(1)(B). Id. at 1235-36. We reasoned that

“[b]y limiting the responsibility for another’s actions to those instances when the

defendant ‘aided or abetted, counseled, commanded, induced, procured, or

willfully caused’ that person’s conduct, [the application note] establishes an

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exception to the general rule in § 1B1.3(a)(1)(B).” Id. at 1235 (quoting § 3C1.2

cmt. n.5). We thus held that the court could not consider the conduct of others

acting in concert with the defendant to determine whether § 3C1.2’s enhancement

applied. Id. at 1235-36.

       In McClain, we considered whether U.S.S.G. § 3B1.4’s enhancement could

be imposed based on the jointly undertaken criminal activity of a defendant’s co-

conspirators. McClain, 252 F.3d at 1287. Section 3B1.4 provides for a two-level

enhancement “ ‘[i]f the defendant used or attempted to use a person less than

eighteen years of age to commit the offense or assist in avoiding detection of, or

apprehension for, the offense.’ ” McClain, 252 F.3d at 1285 (quoting § 3B1.4).

The defendant argued that the enhancement could not apply based on co-

conspirators’ conduct because such a construction would render the enhancement

applicable on a strict-liability basis. See id. at 1287. We held, however, that

§ 3B1.4’s enhancement could properly be imposed based on the jointly undertaken

criminal activity of co-conspirators. Id. at 1288. We reasoned that this

construction of § 3B1.4 would not allow the enhancement to apply on a strict-

liability basis because § 1B1.3(a)(1)(B) allows co-conspirators’ conduct to serve as

the basis for imposing the enhancement only when the co-conspirators’ conduct

was reasonably foreseeable. Id. at 1287-88.




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      Nothing in § 2D1.1(b)(12) prohibits a sentencing court from imposing the

premises enhancement based on the jointly undertaken criminal activity of co-

conspirators. Section 2D1.1(b)(12) differs from the guideline provision at issue in

Cook because § 2D1.1(b)(12) lacks an application note limiting the effect of

§ 1B1.3(a)(1)(B).

      Geoffrey argues that § 2D1.1(b)(12) cannot be imposed based on the jointly

undertaken criminal activity of a co-conspirator because § 2D1.1(b)(12) explicitly

applies “[i]f the defendant maintained a premises for the purpose of manufacturing

or distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12) (emphasis added).

But McClain implicitly rejected this argument. Section 3B1.4 also applies “[i]f the

defendant” engages in certain conduct, id. § 3B1.4, yet this language was

insufficient for the court to conclude in McClain that § 3B1.4 cannot apply based

on a co-conspirator’s reasonably foreseeable conduct. We therefore conclude that

the district court did not err in imposing the premises enhancement based on the

jointly undertaken criminal activity of co-conspirators.

      We next consider Holmes’s argument that the district court should not have

imposed the premises enhancement because the River Road house was primarily

used as a residence and only collaterally used for drug sales. We review a

sentencing court’s factual finding that a defendant maintained a premises for the

manufacture or distribution of drugs for clear error. United States v. George, 872

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F.3d 1197, 1205 (11th Cir. 2017). An application note to § 2D1.1(b)(12) provides

that a sentencing court may impose the premises enhancement if the premises was

used for more than just drug-related activity:

      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.

U.S.S.G. § 2D1.1 cmt. n.17. To determine whether a defendant maintained a

premises for drug distribution or manufacture, [a] sentencing court applies a

totality-of-the-circumstances approach. See George, 872 F.3d at 1205-06.

      Here, law enforcement used an informant to purchase crack from Nicholas at

the River Road house twice while Holmes was present. During a search of the

River Road house, the officers recovered two bags of suspected crack cocaine,

several bags of suspected marijuana, a dish with a razor blade, ziplock bags, and

two digital scales. Based on this evidence, the district court did not clearly err in

concluding that drug activity was more than an incidental or collateral use of the

River Road house. See id. at 1206 (concluding that “one of the primary purposes

of [an] apartment was for the distribution of drugs” when someone “purchased

multiple pounds of marijuana” in the apartment and it contained “packaging



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equipment, scales, heat-sealing machines, and firearms”). The district court thus

did not err in imposing the premises enhancement on Holmes.

C.    The District Court Did Not Err in Applying the Firearm Enhancement.

      Geoffrey argues that the district court erred in applying the firearm

enhancement under U.S.S.G. § 2D1.1(b)(1) because there was no evidence that he

possessed a firearm or that his co-defendants’ firearm possession was reasonably

foreseeable to him. The government responds that multiple guns were found inside

the houses and in the driver’s seat of the car that Geoffrey drove regularly.

According to the government, the informants reported that all three co-defendants

kept firearms nearby during drug exchanges.

      The question whether a defendant possessed a firearm within the meaning of

§ 2D1.1(b)(1) is a finding of fact, which we review for clear error. George,

872 F.3d at 1204. Section 2D1.1(b)(1) provides for a two-point enhancement “[i]f

a dangerous weapon (including a firearm) is possessed.” U.S.S.G. § 2D1.1(b)(1).

The firearm enhancement “should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense.” Id.

§ 2D1.1cmt. n.11(A). The firearm enhancement applies “whenever a firearm is

possessed during conduct relevant to the offense of conviction.” United States v.

Smith, 127 F.3d 1388, 1390 (11th Cir. 1997). Further, the enhancement may be

applied to a defendant based on a co-conspirator’s firearm possession if the

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government shows by a preponderance of the evidence that “(1) the possessor of

the firearm was a co-conspirator, (2) the possession was in furtherance of the

conspiracy, (3) the defendant was a member of the conspiracy at the time of

possession, and (4) the co-conspirator possession was reasonably foreseeable by

the defendant.” United States v. Fields, 408 F.3d 1356, 1359 (11th Cir. 2005)

(emphasis and internal quotation marks omitted).

      Here, Geoffrey disputes whether possession of firearms by other members of

the jointly undertaken criminal activity was reasonably foreseeable to him. A

search of the River Road house produced two pistols and a twelve-gauge shotgun.

Queener testified that, according to CI-1, Geoffrey was “the brains of the

operation.” Doc. 195 at 156. Queener also testified that Geoffrey would supply

Nicholas and Holmes with crack cocaine at the River Road house. Shannon

McCook, a special agent with the Georgia Bureau of Investigation, testified that

Geoffrey was seen at the River Road house “if not every day, every other day.”

Doc. 195 at 79. On these facts, we conclude that a factfinder could permissibly

conclude that possession of firearms by either Nicholas or Holmes at the River

Road house was reasonably foreseeable to Geoffrey. Therefore the district court

did not clearly err in applying the two-level firearm enhancement to Geoffrey.




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D.     The District Court Did Not Clearly Err in Assigning Geoffrey’s
       Criminal History Points.

       Geoffrey argues that the district court clearly erred in assigning an additional

two criminal history points under U.S.S.G. § 4A1.1(d) because he was released

from his 12-month probation sentence in February 2015 and the instant offense did

not occur until November 3, 2015. The government responds that the district court

correctly added two criminal history points because the record showed that the

ongoing offense conduct occurred before the expiration of Geoffrey’s prior

sentence on February 5, 2015. The government contends the record showed that

CI-2 engaged in several transactions with Geoffrey before that date. Geoffrey and

the government thus agree that he was on probation until February 5, 2015; they

dispute whether any conduct relevant to the offense of conviction occurred before

this date.

       Under U.S.S.G. § 4A1.1(d), a defendant receives two criminal history points

if he committed the instant offense while serving a prior sentence, including a

sentence of probation. § 4A1.1(d). Here, the district court did not clearly err in

finding that Geoffrey was serving his prior sentence of probation when he

committed the instant offense. According to Queener, CI-2 stated that Geoffrey

had been selling crack cocaine in roughly one-ounce quantities weekly throughout

2014. As explained above, the district court permissibly considered Queener’s

hearsay testimony relaying CI-2’s account. Therefore, the district court did not
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clearly err in finding that the instant offense occurred while Geoffrey was serving

his prior sentence.

                                IV.   CONCLUSION

      We conclude that the district court did not err in calculating Geoffrey’s,

Nicholas’s, and Holmes’s base offense levels. We further conclude that the court

committed no error in applying the premises enhancement to Geoffrey and

Holmes, in applying the firearm enhancement to Geoffrey, or in assigning

Geoffrey two additional criminal history points on the ground that he had been

serving a prior sentence while he committed conduct relevant to his offense of

conviction. We therefore affirm the sentences.

      AFFIRMED.




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