United States v. Terry

83 F.4th 1039

UNITED STATES of America, Plaintiff-Appellee, v. Michael Dominique TERRY, Jr., Defendant-Appellant.

No. 22-1961

United States Court of Appeals, Sixth Circuit

Argued: July 27, 2023

Decided and Filed: October 13, 2023

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:21-cr-00153-6—Paul Lewis Maloney, District Judge.

ARGUED: Joshua A. Blanchard, BLANCHARD LAW, Greenville, Michigan, for Appellant. Lauren F. Biksacky, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Joshua A. Blanchard, BLANCHARD LAW, Greenville, Michigan, for Appellant. Theodore J. Greeley, UNITED STATES ATTORNEY'S OFFICE, Marquette, Michigan, for Appellee.

Before: MOORE, ROGERS, and GRIFFIN, Circuit Judges.

ROGERS, J., delivered the opinion of the court in which GRIFFIN, J., joined. MOORE, J. (pp. 1045-48), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

Defendant Michael Terry pleaded guilty to four counts of distributing a mixture containing fentanyl and was sentenced to fifty-seven months of imprisonment. In this appeal, he challenges only the district court's imposition of the U.S. Sentencing Guidelines' "drug house" two-point enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. U.S.S.G. § 2D1.1(b)(12). He argues that there was not sufficient evidence that a primary use of his residence was for the distribution of controlled substances. On the evidence that Terry and his co-conspirator engaged in repeated drug dealing from Terry's home, the district court properly applied the enhancement.

Between the summers of 2020 and 2021, large quantities of fentanyl flowed through Lansing, Michigan. An investigation uncovered a conspiracy as its source. The conspiracy's head, Edward Washington, was Terry's cousin. Surveillance, controlled purchases of fentanyl, and authorized wire intercepts, among other evidence, revealed Terry's participation in his relation's drug distribution scheme.

Most relevant to this appeal, Terry's Smith Street residence supplied a place for conspiracy-related activities. Terry sold fentanyl from the address and permitted Washington to use his property for drug distribution.

Terry was tried with other co-conspirators and pleaded guilty to four counts of distribution of a mixture or substance containing a detectable amount of fentanyl. 21 U.S.C. §§ 841(a)(1), (b)(1)(C). The district court found Terry's offense level to be 21, which, when paired with his criminal history of III, resulted in an advisory Guidelines range of 46 to 57 months. The court sentenced Terry to 57 months' imprisonment, at the high end of the range. The offense level of 21 included the court's application of a two-level enhancement for having "maintained a premises for the purpose of manufacturing or distributing a controlled substance." U.S.S.G. § 2D1.1(b)(12). If the court had not applied the two-level enhancement, the Guidelines range would have been 37 to 46 months. Terry now appeals, challenging only the applicability of the two-level enhancement.

The two-level "drug house" enhancement applied in this case because, in the words of the guideline, Terry "maintained a premises for the purpose of manufacturing or distributing a controlled substance." Id. On appeal, Terry makes the seemingly single argument that there was no evidence that "a primary use of the residence was for the distribution of controlled substances." The argument, however, has both a factual component (what does the evidence actually show about primary use) and a legal one (what kind of evidence about primary use is required by the guideline).

Formally, as both parties point out in their briefs, courts reviewing the application of a sentencing guideline to a factual determination generally review factual issues deferentially for whether there is clear error on the part of the lower court, but review legal issues de novo, which is to say without deference to the lower court. See United States v. Tolbert, 668 F.3d 798, 800 (6th Cir. 2012); United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019). A perhaps simplistic way to think about the difference between a factual and a legal issue is that we get the answer to the factual issue by resort to the record, while we get the answer to a legal issue by resort to the lawbooks. To be sure, a "single" question for review can require both an examination of the record and resort to the lawbooks. For example, the single question "is Lee old enough to vote" is really more than one question, including "how old is Lee" (fact) and "what is the minimum age to vote" (law). That is often easy to tease out, but it is not always so easy, especially when a general legal term that can be interpreted multiple ways is applied to a range of different factual possibilities.

What happens then is that courts may apply a type of hybrid approach. See generally United States v. Abdalla, 972 F.3d 838, 850-51 (6th Cir. 2020). In the sentencing context in particular, the Supreme Court has held that a "deferential review [is] appropriate" where "[t]he legal question at issue [was] a minor, detailed, interstitial question of sentencing law, buried in a judicial interpretation of an application note to a Sentencing Guideline" as opposed to "a generally recurring, purely legal matter, such as interpreting a set of legal words." Buford v. United States, 532 U.S. 59, 64-65, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001). We have applied Buford's reasoning in the drug-house-enhancement context. See United States v. Uminn, 820 F. App'x 353, 356 (6th Cir. 2020). In contrast, when our analysis focused entirely on comparing accepted facts in the case before us with the facts of various precedents, we have applied fresh review. See United States v. Rich, 14 F.4th 489, 495 (6th Cir. 2021); see also United States v. Sweet, 630 F.3d 477, 480, 482 (6th Cir. 2011) (applying fresh review in the context of obstruction-of-justice sentencing enhancements).

In this case, we do not need to examine the precise contours of appellate review of highly fact-intensive legal issues, because, as in the voting-age example, it is not difficult to rule in this case first by finding no clear error with respect to the relevant facts, and then determining independently that on those facts the district court did not legally err.

In rejecting Terry's objection to the drug house enhancement, the district court adopted the facts in the pre-sentence report. The district court stated that on the issue of the drug premises, "in the Court's judgment, the government's argument as related to the facts which justify the enhancement, are spot on correct, based on the Court's review of the presentence report." The final pre-sentence report, in turn, lists the following activities involving Terry's residence:

12/9/20 controlled purchase of 0.19 grams of fentanyl from Terry at Terry's residence.

1/21/21 controlled purchase of 0.46 grams of fentanyl from Terry at Terry's residence.

2/18/21 controlled purchase of 1.26 grams of fentanyl or methamphetamine from Terry and Washington at Terry's residence.

2/23/21 controlled purchase of 1.11 grams of fentanyl from Terry and Washington at Terry's residence.

4/18/21 Washington and another co-conspirator discussed a planned purchase of 50 grams of heroin before meeting at Terry's residence.

5/6/21 Washington distributed an unknown amount of narcotics to another co-conspirator at Terry's residence.

5/28/21 Washington and Terry engaged in a transaction involving 10 grams of heroin at Terry's residence.

On the basis of this evidence of activity at Terry's residence in five months, the district court concluded:

First, a confidential informant conducted multiple controlled buys from the defendant at that residence. Second, Washington conducted multiple distribution[s of] . . . narcotics at that residence. The continuation of the criminal complaint includes two instances where, based on officer training and experience, Washington conducted deals at the defendant's residence or outside of the residence with defendant present at the residence.

None of this has been factually refuted by Terry. In any event, it was supported by the evidence.

For his part, Terry agrees that he maintained the premises in question as his residence. He also explains that "no drugs were ever recovered from the house, there is no evidence that Mr. Terry cooked, manufactured, or packaged drugs there, no 'tools of the trade' were found at his house, no money was ever seized from his house, and he had other legitimate employment." The government, however, does not take issue with these particular factual points. Terry also recognizes that the government does not take issue with his factual contention that it is not clear that he was aware of the full extent of the drug trafficking that Washington undertook at his residence because on some of those occasions Terry was not present. In sum, there is no real dispute as to the facts relied upon by the government and the district court in applying the enhancement.

Terry nonetheless seeks to undermine the district court's factual conclusions by contending that the government never attempted to search Terry's house and that a cooperating defendant testified that she would deliver only 5-10 grams of narcotics to Terry at a time. But even if these points have some inferential weight, they are simply not enough to rule that the district court's factual findings were clearly erroneous.

Turning to the law that applies to those facts, the district court did not err in determining the scope of the guideline enhancement to encompass Terry's maintenance of his premises.

First of all, it makes sense to interpret "for the purpose of manufacturing or distributing a controlled substance," U.S.S.G. § 2D1.1(b)(12) (emphasis added), in the words of the enhancement, as set forth in the Guidelines' commentary:

Manufacturing or

...