22-331-cr
`United States v. Vinales
`United States Court of Appeals
`for the Second Circuit
`
`
`
`
`
`
`
`August Term, 2022
`
`(Submitted: June 28, 2023
`
`Decided: August 29, 2023)
`
`
`
`Docket No. 22-331-cr
`
`_____________________________________
`
`UNITED STATES OF AMERICA,
`
`Appellee,
`
`v.
`
`BRYAN VINALES, aka TIANO,
`
`Defendant-Appellant.
`_____________________________________
`
`Before:
`
`
`
`
`LYNCH, LOHIER, and BIANCO, Circuit Judges.
`
`
`In this sentencing appeal, Bryan Vinales challenges the District Court’s
`application of a two-level enhancement under § 2D1.1(b)(12) of the United States
`Sentencing Guidelines, which applies when a defendant has “maintained a
`premises for the purpose of manufacturing or distributing a controlled
`substance.” U.S.S.G. § 2D1.1(b)(12). The principal question presented is whether
`the enhancement applies to defendants who use their personal residence to
`manufacture or distribute a controlled substance. Here, Vinales maintained an
`apartment where he had at one point lived for the purpose of distributing
`controlled substances. We conclude that the commentary to § 2D1.1(b)(12)
`supports the enhancement under the facts of this case. Vinales’s other challenges
`to his sentence are unavailing. AFFIRMED.
`
`
`United States v. Vinales
`United States Court of Appeals
`for the Second Circuit
`
`
`
`
`
`
`
`August Term, 2022
`
`(Submitted: June 28, 2023
`
`Decided: August 29, 2023)
`
`
`
`Docket No. 22-331-cr
`
`_____________________________________
`
`UNITED STATES OF AMERICA,
`
`Appellee,
`
`v.
`
`BRYAN VINALES, aka TIANO,
`
`Defendant-Appellant.
`_____________________________________
`
`Before:
`
`
`
`
`LYNCH, LOHIER, and BIANCO, Circuit Judges.
`
`
`In this sentencing appeal, Bryan Vinales challenges the District Court’s
`application of a two-level enhancement under § 2D1.1(b)(12) of the United States
`Sentencing Guidelines, which applies when a defendant has “maintained a
`premises for the purpose of manufacturing or distributing a controlled
`substance.” U.S.S.G. § 2D1.1(b)(12). The principal question presented is whether
`the enhancement applies to defendants who use their personal residence to
`manufacture or distribute a controlled substance. Here, Vinales maintained an
`apartment where he had at one point lived for the purpose of distributing
`controlled substances. We conclude that the commentary to § 2D1.1(b)(12)
`supports the enhancement under the facts of this case. Vinales’s other challenges
`to his sentence are unavailing. AFFIRMED.
`
`
`
`
`
`PER CURIAM:
`
`Daniel E. Cummings, Sandra S. Glover, Assistant
`United States Attorneys, for Vanessa Roberts Avery,
`United States Attorney for the District of Connecticut,
`New Haven, CT, for Appellee.
`
`Elizabeth M. Johnson, New York, NY, for Defendant-
`Appellant.
`
`
`Section 2D1.1(b)(12) of the United States Sentencing Guidelines requires 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). The appellant, Bryan Vinales, asks us to consider whether the
`
`enhancement extends to the mixed use of a premise as both a personal residence
`
`and a drug house. We need not do so to resolve this appeal because the record
`
`supports the District Court’s finding that the relevant premises were used by
`
`Vinales “for the purpose of manufacturing or distributing a controlled
`
`substance” after he stopped residing there. Id. Vinales also argues that the
`
`District Court improperly refused to give effect to the parties’ plea agreement by
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`departing downward from the applicable Guidelines range. We disagree and
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`conclude that the District Court could impose a sentence within the applicable
`
`
`
`2
`
`
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`range notwithstanding the parties’ lower Guidelines calculation as reflected in
`
`the agreement. We therefore AFFIRM.
`
`BACKGROUND
`
`The Drug Enforcement Administration (DEA) began investigating a heroin
`
`trafficking ring in Waterbury, Connecticut in 2019. As part of its investigation,
`
`the DEA made six controlled drug buys between February 2020 and June 2020
`
`from Vinales and from a minor working for Vinales. The buys took place at or
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`outside of an apartment on Willow Street in Waterbury (“the Willow Street
`
`premises”). During each of these buys outside the Willow Street premises, DEA
`
`agents or a confidential source working for the DEA saw Vinales or the minor
`
`enter the apartment after meeting the buyer and before handing them the drugs.
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`The DEA later determined that Vinales was listed on utility bills as a resident of
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`the Willow Street premises.
`
`On July 15, 2020, the DEA arrested Vinales at a different address. The
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`same day, the agency executed a search warrant at the Willow Street premises
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`and seized a large quantity of a mixture containing fentanyl and a digital scale,
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`which can be associated with illegal drug trafficking. Vinales admitted that he
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`
`
`3
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`
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`used to live at the Willow Street premises and sold heroin and crack cocaine
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`from there but explained that he had moved out by the time of his arrest.
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`Vinales eventually pleaded guilty to conspiracy to sell heroin and fentanyl.
`
`His plea agreement with the Government included a Guidelines estimate of 57 to
`
`71 months’ imprisonment.1 The Probation Office disagreed with the estimate,
`
`pointing to Vinales’s use of the Willow Street premises. It recommended a two-
`
`level enhancement to the offence level under § 2D1.1(b)(12) for “maintain[ing] a
`
`premises for the purpose of manufacturing or distributing a controlled
`
`substance,” which would result instead in a Guidelines range of 70 to 87 months
`
`— higher than the parties’ agreed range.
`
`At sentencing, Vinales argued that the drug-distribution premises
`
`enhancement should not apply because, among other things, he had lived at the
`
`Willow Street premises and no drugs were ever packaged or manufactured there.
`
`The Government agreed, explaining that it did not seek the enhancement
`
`because Vinales had “for a time” lived at the premises and the Government was
`
`not “able to prove by a preponderance that [Vinales] was using [the premises]
`
`exclusively or predominantly for the drug sales.” App’x 92–93.
`
`
`1 Vinales initially argued that he fell within a lower Criminal History Category, resulting
`in a shorter Guidelines range. He later conceded otherwise.
`4
`
`
`
`
`
`The United States District Court for the District of Connecticut (Bryant, J.)
`
`rejected the parties’ arguments on this point and concluded that the two-level
`
`enhancement applied, yielding a Guidelines range of 70 to 87 months. After
`
`considering the factors listed in 18 U.S.C. § 3553(a), however, the District Court
`
`imposed a non-Guidelines sentence of 60 months’ imprisonment followed by
`
`three years of supervised release. Neither party objected to the sentence
`
`imposed.
`
`DISCUSSION
`
`Both of Vinales’s arguments on appeal challenge his sentence as
`
`procedurally unreasonable. “We review the procedural . . . reasonableness of a
`
`sentence under a deferential abuse-of-discretion standard.” United States v.
`
`Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018). “This standard incorporates de novo
`
`review of questions of law, including our interpretation of the Guidelines, and
`
`clear error review of questions of fact.” Id. “A sentence is procedurally
`
`unreasonable if the district court fails to calculate (or improperly calculates) the
`
`Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory,
`
`fails to consider the § 3553(a) factors, selects a sentence based on clearly
`
`
`
`5
`
`
`
`erroneous facts, or fails adequately to explain the chosen sentence.” United
`
`States v. Singh, 877 F.3d 107, 115 (2d Cir. 2017) (quotation marks omitted).
`
`I
`
`We start with Vinales’s challenge to the District Court’s application of the
`
`drug-distribution premises enhancement under § 2D1.1(b)(12). Vinales
`
`acknowledges that he “maintained” the Willow Street premises, where he had
`
`lived at some point prior to his arrest. But he claims not to have done so “for the
`
`purpose of manufacturing or distributing a controlled substance.”
`
`It is somewhat surprising that we have not directly addressed or
`
`interpreted the drug-distribution premises enhancement under § 2D1.1(b)(12) in
`
`a published opinion. In the absence of any precedent on the issue, we can decide
`
`this case by relying on the commentary in the Guidelines manual that “interprets
`
`or explains” § 2D1.1(b)(12). United States v. Alvarado, 720 F.3d 153, 158 n.2 (2d
`
`Cir. 2013) (quotation marks omitted). That “commentary . . . is authoritative
`
`unless it violates the Constitution or a federal statute, or is inconsistent with, or a
`
`plainly erroneous reading of, that guideline.” Id. (quotation marks omitted)
`
`Here, the commentary provides as follows:
`
`Manufacturing or distributing a controlled substance
`need not be the sole purpose for which the premises was
`
`
`
`6
`
`
`
`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.17.2 As we explain below, the language confirms that the
`
`District Court properly applied the drug-distribution premises enhancement
`
`using a “totality of the circumstances” test, which is appropriate given the fact-
`
`intensive nature of the inquiry. See United States v. Murphy, 901 F.3d 1185, 1191
`
`(10th Cir. 2018); cf. Dish Network Corp. v. DBSD N. Am., Inc. (In re DBSD N.
`
`Am., Inc.), 634 F.3d 79, 105 (2d Cir. 2011) (noting that the resolution of “a fact-
`
`intensive question” should be “based on the totality of the circumstances”).
`
`
`2 We have applied this commentary in a series of summary orders. In those cases, we
`determined that a district court may apply the drug-distribution premises enhancement
`based on either, or both, the presence of a large quantity of drugs and drug
`paraphernalia or a demonstrated history of prior drug purchases or organizational
`meetings at a premises. See United States v. Sampel, 860 F. App’x 789, 792 (2d Cir.
`2021), cert. denied 142 S. Ct. 1216 (2022); United States v. Robtoy, 848 F. App’x 53, 54–55
`(2d Cir. 2021); United States v. Cedeno-Martinez, 791 F. App'x 272, 276 (2d Cir. 2019);
`United States v. Holley, 638 F. App’x 93, 98–99 (2d Cir. 2016). We conversely held in a
`summary order that the enhancement does not apply where a defendant
`“consummated no drug transactions on the premises” and his “storage” of drugs and
`proceeds at the premises “was merely transient,” such as when those materials were
`found in clothing. United States v. McDowell, 804 F. App’x 38, 40 (2d Cir. 2020).
`7
`
`
`
`
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`The District Court found that “at the time of [Vinales’s] arrest . . . he was
`
`not living at Willow Street,” App’x 94, and that Vinales admitted to the arresting
`
`officers that he was living elsewhere while “he used the Willow Street address to
`
`sell drugs,” App’x 89. In other words, the District Court explained, Vinales
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`“didn’t give the [Willow Street] apartment up, he didn’t turn the utilities off, he
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`continued to sell drugs out of the premises by his own admission.” App’x 94–95.
`
`Vinales’s admission was corroborated: Officers searching the Willow Street
`
`premises on the day of Vinales’s arrest discovered a scale and several hundred
`
`bags of narcotics. On these facts, the District Court determined that a primary or
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`principal use for the premises while Vinales lived elsewhere before his arrest was
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`to distribute drugs. App’x 95; U.S.S.G. § 2D1.1 cmt. n.17.
`
`Vinales counters that there was an inadequate factual basis for the
`
`application of the enhancement because the record did not show when Vinales
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`moved out of the Willow Street premises to a different primary residence. The
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`Government responds by inviting us to hold, along with our sister circuits, that a
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`defendant’s use of a premises as a home does not categorically bar application of
`
`the enhancement. See, e.g., United States v. Gardner, 32 F.4th 504, 526 (6th Cir.
`
`2022) (affirming the application of the enhancement where a defendant “used his
`
`
`
`8
`
`
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`home to receive, weigh, distribute, and cook cocaine”); Murphy, 901 F.3d at 1192
`
`(similar); United States v. George, 872 F.3d 1197, 1206 (11th Cir. 2017) (holding
`
`that the enhancement could apply where a witness purchased multiple pounds
`
`of marijuana and another witness saw “packaging equipment, scales, heat-
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`sealing machines, and firearms” at a defendant’s residence).
`
`We decline the Government’s invitation. Although the rule the
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`Government and our sister courts espouse makes sense given the fact-intensive
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`inquiry that § 2D1.1 demands, we can resolve this appeal without it. Vinales
`
`continued to sell drugs from the Willow Street premises even after he moved his
`
`residence to a different location. At that point, the Willow Street premises may
`
`have also been a place for Vinales and others to socialize. But the District Court
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`could permissibly determine that the Willow Street premises was by then used as
`
`a drug house rather than a residence.
`
`II
`
`Vinales also challenges the District Court’s failure to consider a downward
`
`departure from the Guidelines sentence in order to give effect to the parties’ plea
`
`bargain. He claims that the court evidently misunderstood its authority to do so
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`under United States v. Fernandez, 877 F.2d 1138, 1144 (2d Cir. 1989). But we
`
`
`
`9
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`
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`have held that “[a] district court’s silence concerning its refusal to depart
`
`downward, generally, does not support an inference that the district court
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`misapprehended its scope of authority.” United States v. Scott, 387 F.3d 139, 143
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`(2d Cir. 2004). We see (and Vinales points to) nothing else suggesting that the
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`District Court did not grasp its authority under Fernandez. We therefore reject
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`Vinales’s argument that his sentence was procedurally unreasonable on this
`
`ground.
`
`CONCLUSION
`
`We have considered Vinales’s remaining arguments and conclude that
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`they are without merit. For the foregoing reasons, the judgment of the District
`
`Court is AFFIRMED.
`
`
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`10
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