                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0401n.06

                                     Case Nos. 19-1638/1659

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                               Jul 13, 2020
UNITED STATES OF AMERICA,                            )                    DEBORAH S. HUNT, Clerk
          Plaintiff-Appellee,                        )
                                                     )
v.                                                   )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
DAVID RICHARD UMINN (19-1638);                       )       THE WESTERN DISTRICT OF
MICHAEL JOHN MARCON (19-1659),                       )       MICHIGAN
          Defendants-Appellants.                     )
                                                     )




     Before: SILER, MOORE, and NALBANDIAN, Circuit Judges.

        SILER, Circuit Judge. Appellants David Richard Uminn and Michael John Marcon

pleaded guilty for their respective roles in a methamphetamine distribution conspiracy. In this

consolidated appeal, Uminn and Marcon challenge their sentences.

        Uminn argues that the district court erred by applying the premises sentencing

enhancement, USSG § 2D1.1(b)(12), based on activity that occurred at his Dearborn Avenue

residence in Kalamazoo, Michigan (“Dearborn residence”). But, while this case presents a close

call and an atypical application of the premises enhancement, we affirm the district court under a

deferential standard of review. That is because: (1) there was evidence that Uminn was heavily

involved in methamphetamine distribution activity, (2) several codefendants recalled specific

instances of drug distribution activity at the residence, and (3) there appeared to be a distribution
Case Nos. 19-1638/1659
United States v. Uminn/Marcon

amount of methamphetamine at the Dearborn residence. As a result, Uminn’s sentence is

AFFIRMED.

       Marcon presents two issues for review. First, he contends that the district court erred in

sentencing him as a career offender. Second, he argues that the district court erred by relying on

codefendant Raymond Stovall’s post-Miranda statement to law enforcement—as opposed to

Marcon’s own proffer-protected statement—to determine the drug quantity attributable to Marcon.

The government concedes that the district court erred in sentencing Marcon as a career offender

in light of the decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc), which

was rendered after Marcon was sentenced. As a result, Marcon’s sentence is VACATED and the

matter is REMANDED to the district court for resentencing.

                                                I.

       Uminn and Marcon pleaded guilty to conspiracy to distribute and to possess with intent to

distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846. The

probation office prepared a presentence report (“PSR”) for both appellants.

       Uminn’s Sentence. Uminn’s PSR calculated a base offense level of 38 and added a two-

level enhancement for maintaining a premises for the purpose of manufacturing or distributing a

controlled substance for a total offense level of 40. Below, Uminn disputed the two-level

enhancement for maintaining a premises and the denial of credit for acceptance of responsibility.

He also moved for a downward variance.

       At sentencing, the district court noted that the case presented “a close call” but ultimately

overruled Uminn’s objection and applied the enhancement. It reasoned that even though the

Dearborn residence was used as Uminn’s primary residence, “one of the principal activities at the

house was at least the use of crystal meth.” The court noted that Uminn was distributing meth to


                                               -2-
Case Nos. 19-1638/1659
United States v. Uminn/Marcon

other occupants of the residence and that the occupants used the residence as “their own private

drug house.” Furthermore, it stated that other information contained in the PSR, including proffers

from co-conspirators, created a “solid inference” that other drug activity was occurring at the

residence, including cutting product and distribution. Finally, the court observed that “significant

quantities” of methamphetamine “beyond simple personal use” were discovered during a search

of the residence.

       Thus, after applying the premises enhancement and awarding credit for acceptance of

responsibility, the court calculated a total offense level of 37 and a criminal history category of III

for Uminn, resulting in a guidelines range of 262 to 327 months. It also denied Uminn’s motion

for a downward variance. In the end, the court sentenced Uminn to 262 months’ imprisonment.

       Marcon’s Sentence. Marcon’s PSR assigned a base offense level of 37 based on the

probation office’s conclusion that Marcon was a career offender. Without the career offender

enhancement, Marcon’s base offense level was 36 from Stovall’s statement that Marcon was

responsible for 3.7 kg of methamphetamine.              A three-level reduction for acceptance of

responsibility brought Marcon’s base offense level down to 34, and the career offender status gave

him a criminal history category of VI.

       The court relied on Stovall’s statement and attributed the greater drug quantity to Marcon.

Even so, the court granted the government’s motion for downward departure and varied downward

on Marcon’s motion based on the § 3553(a) factors for a total sentence of 156 months’

imprisonment.

                                                  II.

       Uminn and Marcon raise three issues on appeal. First, Uminn argues that the district court

erred by applying the premises enhancement. Second, Marcon contends that the court erred by


                                                 -3-
Case Nos. 19-1638/1659
United States v. Uminn/Marcon

sentencing him as a career offender. Third, Marcon argues that the court erred by relying on

codefendant Stovall’s statement to determine the drug quantity attributable to him.

       According the district court’s application of the premises enhancement due deference, we

affirm Uminn’s sentence.

       Marcon’s sentence, however, is vacated and the matter is remanded for resentencing. The

government concedes that Marcon was erroneously sentenced as a career offender based on Havis,

927 F.3d at 387. As a result, we need not consider Marcon’s drug-quantity argument.

                                                 A.

       Premises Enhancement. The sentencing guidelines instruct courts to increase the offense

level by two points “[i]f the defendant maintained a premises for the purpose of manufacturing or

distributing a controlled substance.” USSG § 2D1.1(b)(12). Determining whether the district

court erred in applying the premises enhancement involves a fact-intensive review. On this record,

we give due deference to the district court’s application of the premises enhancement.

       Standard of Review.       When a defendant challenges a sentencing enhancement, the

reviewing court “shall accept the findings of fact of the district court unless they are clearly

erroneous [and] shall give due deference to the district court’s application of the guidelines to the

facts.” 18 U.S.C. § 3742(e). Thus, in our circuit, “[i]t is well-settled that we overturn a court’s

factual findings in regard to the Sentencing Guidelines only if they are clearly erroneous.” United

States v. Jackson-Randolph, 282 F.3d 369, 390 (6th Cir. 2002) (citing United States v. Brawner,

173 F.3d 966, 971 (6th Cir. 1999)). Our circuit has not, however, settled on a clear standard of

review for assessing a district court’s application of sentencing enhancements. United States v.

Bell, 766 F.3d 634, 636 (6th Cir. 2014). And here, in an atypical case where the district court




                                                -4-
Case Nos. 19-1638/1659
United States v. Uminn/Marcon

acknowledged application of the premises enhancement was “a close call,” the standard of review

matters.

        The Supreme Court has suggested that the clearly erroneous standard applies to factual

findings while a “deferential review [is] appropriate” when “legal principles [are] at issue.” Buford

v. United States, 532 U.S. 59, 64 (2001). Even so, it is clear that de novo review should not guide

this case. See Jackson-Randolph, 282 F.3d at 390 (explaining that more deference is owed where

the enhancement at issue is of a “fact-specific nature”); United States v. Solorio, 337 F.3d 580,

600 (6th Cir. 2003) (describing the Buford factors). Although the Supreme Court has not specified

the exact deference that applies to mixed questions of law and fact in the sentencing context, some

deference applies even if the issue touches on some aspect of law. Buford, 532 U.S. at 66

(affirming the appellate court’s decision to review the “District Court’s . . . decision deferentially”).

As a result, we engage in clear error review of factual findings, and we accord due deference to

the district court’s application of the guidelines to the facts.

        Application of the Premises Enhancement. The “drug-house” or premises enhancement

“applies to anyone who (1) knowingly (2) opens or maintains any place (3) for the purpose of

manufacturing or distributing a controlled substance.” United States v. Johnson, 737 F.3d 444,

447 (6th Cir. 2013). Only the third element is at issue here. It is undisputed that Uminn used

methamphetamine at the Dearborn residence. Furthermore, Uminn clearly had a possessory

interest in or “maintained” the residence. See id. Thus, the principal question is whether Uminn

maintained the Dearborn residence “for the purpose of manufacturing or distributing”

methamphetamine. See id.

        The fact that Uminn lived at the residence does not preclude application of the premises

enhancement. Distribution of drugs need not be the sole purpose for which a premises was


                                                  -5-
Case Nos. 19-1638/1659
United States v. Uminn/Marcon

maintained, but drug distribution must be a primary or principal use rather than an incidental or

collateral use of the premises for the enhancement to apply. USSG § 2D1.1(b)(12) cmt. n.17;

Johnson, 737 F.3d at 447. As such, the guideline commentary instructs us to “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” in

determining whether drug manufacturing or distribution was “one of the defendant’s primary or

principal uses for” the Dearborn residence. USSG § 2D1.1(b)(12) cmt. n.17. Thus, we turn to

review of the facts that the district court relied on in applying the enhancement.

       Uminn’s use of methamphetamine at the Dearborn residence does not support application

of the premises enhancement. The district court noted that “one of the principal activities at the

house was . . . the use of crystal meth.” No one disputes that Uminn used methamphetamine at

the Dearborn residence. In fact, by Uminn’s own admission, he personally used a half ounce of

methamphetamine per day. But personal use is not distribution. And the premises enhancement

will not apply where a “defendant keeps drugs in the home for casual personal use.” Johnson, 737

F.3d at 449.

       Even so, the district court found that Uminn was doing more than casually using drugs at

the residence. It noted that “significant quantities” of suspected crystal meth were found during a

search of the residence. Specifically, the PSR states that 42 grams of suspected methamphetamine

were located during a search of the Dearborn residence. The district court concluded that 42 grams

of methamphetamine constituted an amount “beyond simple personal use.”

       Uminn contends that his 42 grams of methamphetamine did not constitute a distribution

quantity. But the district court was not bound by Uminn’s self-reported personal use statistics.

The district court heard expert testimony in a related case shortly before Uminn’s sentencing


                                                -6-
Case Nos. 19-1638/1659
United States v. Uminn/Marcon

stating that personal use amounts of crystal methamphetamine were between a tenth of a gram to

a quarter of a gram. Our circuit has noted that “a very heavy user [of methamphetamine] might

use five or six grams a day.” United States v. Hampton, 769 F. App’x 308, 309 (6th Cir. 2019)

(describing a “hit” of methamphetamine as “a quarter of a gram”). Here, Uminn’s self-reported

daily use—a half ounce, or approximately 14 grams—is more than double the amount that “a very

heavy user” might consume. See id. As a result, the district court could have appropriately found

Uminn’s statement unreliable. At bottom, the district court was best positioned to determine

whether the 42 grams of methamphetamine located at the Dearborn residence constituted a

distribution quantity based on the evidence at sentencing and experience in similar

methamphetamine distribution cases.

        The district court also relied on statements from other codefendants to draw inferences and

conclude that a primary use of the Dearborn residence was drug distribution. At times there were

as many as three adult occupants at the Dearborn residence: Uminn, Uminn’s girlfriend, Kasey

Neidlinger, and Neidlinger’s mother, Kandy Kirby.1 Kirby acknowledged that she witnessed

Uminn’s regular drug-distribution activity. For instance, Kirby stated that codefendant Andrew

Bagley regularly spent time at the Dearborn residence and that he usually had a large quantity of

crystal methamphetamine. She recalled a specific occasion in 2017, when Bagley delivered

methamphetamine to Uminn at the Dearborn residence. She said that Bagley was stopped by

police after he left the Dearborn residence and over an ounce of methamphetamine was seized.

Additionally, Kirby stated that, in 2018, codefendant Raymond Stovall brought one pound of




1
 Evidence in the PSR suggests that Kirby and Neidlinger were also involved in methamphetamine distribution activity
while they resided at the Dearborn residence.

                                                       -7-
Case Nos. 19-1638/1659
United States v. Uminn/Marcon

methamphetamine to the Dearborn residence. Finally, Kirby reported that Uminn taught Stovall

how to cut methamphetamine.

        The district court inferred “that cutting or manufacturing or spreading crystal meth was

done” at the Dearborn residence. Even if we completely disregard any reference to cutting

methamphetamine, Kirby stated that she personally witnessed Uminn’s involvement in drug-

distribution activity and recalled several specific instances of distribution activity occurring at the

Dearborn residence.

       Second, Marcon’s statement indicates that Uminn was heavily involved in drug distribution

activity and recalled at least one occasion of such activity at the Dearborn residence. Marcon

reported that, in 2016, Bagley purchased 10 to 12 ounces of crystal methamphetamine from Uminn

each week. He also stated that Uminn was distributing one to two pounds of methamphetamine

weekly during this time frame. Marcon recalled a specific occasion when Stovall and an

unidentified male met Marcon and Uminn at the Dearborn residence. During this meeting, Stovall

gave Marcon six ounces of methamphetamine for $2,900. As a result, the court noted that there

was “evidence of significant deliveries at the house and at least in one instance a meeting of several

of the principals.”

       Third, codefendant Robert Armstrong stated that Uminn coordinated delivery of two

pounds of crystal methamphetamine between Armstrong and an unidentified white male from

Benton Harbor. The methamphetamine was transported to the Dearborn residence by the white

male. But, since Armstrong only had enough money to pay for a half pound of methamphetamine,

the remaining 1.5 pounds were transported back to Benton Harbor by the white male.

       Fourth, codefendant Stovall described Uminn as his “number one seller of crystal

methamphetamine.”


                                                 -8-
Case Nos. 19-1638/1659
United States v. Uminn/Marcon

       Ultimately, the evidence in the PSR supports the district court’s application of the premises

enhancement under a deferential standard of review.              First, 42 grams of suspected

methamphetamine was located during a search of the Dearborn residence, which could suggest

that some of the methamphetamine was intended for distribution. Additionally, statements from

various co-conspirators, including Kirby who resided at the Dearborn residence at times, reflect

that Uminn was heavily involved in methamphetamine distribution and demonstrate that there

were several specific instances of drug-distribution activity at the Dearborn residence over a span

of multiple years. When viewed as a whole, the quantity of methamphetamine located at the

residence paired with statements from several co-conspirators support the district court’s

conclusion that methamphetamine distribution was a primary use of the Dearborn residence. In

sum, even if we would have decided this issue differently in the first instance, we cannot say that

the district court was out of bounds by applying the premises enhancement in this case. Although

some questions linger about the extent of Buford deference for mixed sentencing questions of law

and fact, we recognize the particularly fact-bound nature of the premises enhancement and affirm

the district court under a deferential standard of review.

                                                 B.

       Career-Offender Enhancement. The district court erred in sentencing Marcon as a career

offender. The government concedes that under this court’s decision in Havis, 927 F.3d at 387,

decided six days after Marcon’s sentencing hearing, federal drug conspiracies do not qualify as

controlled substance offenses under USSG § 4B1.2(b) for the purpose of the career-offender

enhancement. As a result, Marcon’s sentence must be vacated and the matter must be remanded

for resentencing.




                                                -9-
Case Nos. 19-1638/1659
United States v. Uminn/Marcon

       Computation of Drug Quantity Attributable to Marcon. Since the matter will be remanded

for resentencing, we do not consider Marcon’s second argument, that the court erred in relying on

codefendant Stovall’s statements to law enforcement, as opposed to Marcon’s proffer-protected

statements, when computing the drug quantity attributable to Marcon.

                                              III.

       We accord due deference to the district court’s application of the premises enhancement

during Uminn’s sentencing. As a result, Uminn’s sentence is AFFIRMED.

       Sentencing Marcon as a career offender was erroneous based on our post-sentencing

decision in Havis, 927 F.3d at 387. As a result, Marcon’s sentence is VACATED and the matter

is REMANDED to the district court for resentencing.




                                             - 10 -
