US v. Acasio Sanchez.  No. 15-1356

(Editors Note:  Chicago Federal Criminal Defense Attorney Michael J. Petro represented Mr. Sanchez in the District Court and in the 7th Circuit Court of Appeals.)

Acasio Sanchez pleaded guilty to conspiring to possess with intent to distribute and to distribute heroin and cocaine, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced below the guidelines range to 40 months’ imprisonment. Sanchez argues that the district court erred by applying a two-level enhancement for “maintain[ing] a premise for the purposes of manufacturing or distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12).

In July 2012 one of Sanchez’s childhood friends offered him $1,500 per month to store drugs in his house. Sanchez agreed and made the drugs available when others came to pick them up. The drugs were kept locked in a closet on the back porch of his residence. Over the course of a year Sanchez stored at least 30 kilograms of heroin and received $18,000 as payment for his services.

A probation officer recommended applying the enhancement and calculated Sanchez’s guidelines range as 135 to 168 months. The probation officer noted that Sanchez, who was 70 years old at the time, has a number of health problems.

Defense counsel argued that the § 2D1.1(b)(12) enhancement should not apply because the primary purpose of Sanchez’s residence was not drug distribution. In other cases the “primary purpose” requirement of the guideline was met by additional facts, such as when the defendants also “maintained business records, used a child to deliver narcotics, settled financial transactions or accepted payment” on the premises. Sanchez, however, was merely providing storage and this was not enough to make drug distribution the primary purpose of his house.

The government argued for the two-level enhancement because Sanchez, as a renter, had a possessory interest in the house, and the consistent delivery, concealment, and pick-up of drugs meant that storing drugs was a “primary use of the residence.”

The district court agreed that the enhancement should apply because Sanchez “allowed his residence to be used as a stash house on a constant basis for a substantial sum of money.” Although storing drugs was not the sole purpose of the residence, the district court explained that it was one of the primary purposes.

On appeal Sanchez argues that his guidelines calculation was wrong because the cases where the § 2D1.1(b)(12) enhancement applied have involved more than mere storage. He emphasizes that in the typical case, the defendant has “tools of the [drug trafficking] trade,” but he did not keep scales, guns, ammunition, large quantities of cash, or business records at his house. His role, he says, was minimal; he did not even know the type of drug he was storing. He did not give instructions about storing the drugs, dictate the terms of their transportation or sale, bring customers to the house, or have employees for selling the drugs.

Although other cases have found that certain facts justified the enhancement, this “does not mean that those facts necessarily must be shown in every case.” United States v. Johnson, 737 F.3d 444, 448 (6th Cir. 2013). The guideline specifically covers storage, see U.S.S.G. § 2D1.1(b)(12) cmt. n.17 (2014), and while storing additional tools of the drug-trafficking trade can be “indicia that drug trafficking was the principal use of the premises,” it is not the only relevant inquiry, United States v. Flores-Olague, 717 F.3d 526, 533 (7th Cir. 2013) (citing United States v. Miller, 698 F.3d 699, 706–07 (8th Cir. 2012)). Additionally, a premise can have more than one primary use, and, as long as it is more than “incidental or collateral,” drug distribution does not have to be the “sole purpose.” U.S.S.G. § 2D1.1(b)(12) cmt. n.17 (2014); see United States v. Bell, 766 F.3d 634, 638 (6th Cir. 2014); Miller, 698 F.3d at 706–07. The district court focused on the fact that Sanchez received large drug deliveries every few weeks, was paid a large sum for storage, and controlled access to the drugs when deciding that one of the primary purposes of his home was drug distribution.

The district court explicitly stated that it would have imposed the same sentence without the two-level increase. The district court said that Sanchez’s age and health warranted a sentence far below the guideline range.

AFFIRMED

By:   Chicago Federal Criminal Defense Attorney Michael J. Petro

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