United States v. Day.
No. 23-5084. 5/2/2025. N.D.Okla. Judge Hartz. Possession of Fentanyl With Intent to Distribute—US Sentencing Guidelines § 2D1.1(b)(12)—Rental Unit—Premises Control—Meaning of “Maintain”—Possessory Interest in Premises.
May 2, 2025
At Day’s direction, an unindicted co-conspirator booked a short-term rental home through Airbnb.com (the rental). Massey, the rental’s property manager, visited the rental to see if it had been abandoned, because she had not received any front-door keypad notifications that the door had been opened. After she entered the residence, she found the master bedroom door locked. She knocked on the door, and Day opened it, appearing as if he had just awakened. Day told Massey that he had been using the back door to enter and exit. Several days later, police officers observed Day selling 2.75 grams of fentanyl pills to a confidential informant inside the rental at the front-door threshold. Officers executed a search warrant and recovered fentanyl and marijuana, scales, firearms, ammunition, cash, and various personal belongings. Day was convicted of possession of fentanyl with intent to distribute, possession of firearms in furtherance of a drug-trafficking crime, and being a felon in possession of a firearm and ammunition. The presentence investigation report (PSR) recommended applying US Sentencing Guidelines (USSG) § 2D1.1(b)(12), which provides for a two-level increase in the offense level where a defendant maintained a premises for manufacturing or distributing a controlled substance. The district court applied the enhancement over Day’s objection and sentenced him to 248 months’ imprisonment (188 months on counts one and three, to run concurrently) and 60 months on count two (to run consecutively to the other counts).
On appeal, Day argued that the district court erred by applying the § 2D1.1(b)(12) enhancement because he did not “maintain” the rental within the meaning of the enhancement. Day did not dispute that the rental was used for drug-trafficking purposes. Rather, Day maintained that he “did not meaningfully control access to, or activities at, the premises.” Section 2D1.1(b)(12) provides for a two-level enhancement to the base offense level “[i]f the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance.” While this section does not define “maintain,” Application Note 17 of the section’s commentary states that in determining whether a defendant “maintained” premises, the court should consider, among other things, whether the defendant held a possessory interest in the premises and the degree to which the defendant controlled access to, or activities at, the premises. Here, Day stored his personal belongings and items related to his drug trafficking activities at the rental. And it appeared that Day slept there and was the only person occupying the rental. Accordingly, sufficient evidence showed that Day exercised control over the rental. Further, application of the enhancement does not require the defendant to have exclusive control over the premises, so the fact that Massey and the co-conspirator also had access to the front-door keypad did not negate Day’s control over the rental.
Day also contended that the definition of maintain should be construed to include a requirement that he had a role in keeping the property in good condition. However, § 2D1.1(b)(12) requires that the premises be kept suitable for manufacturing or distributing controlled substances, which does not require the premises to be maintained.
Day also asserted that the evidence did not sufficiently support the duration and continuity factors necessary to establish maintenance because he did not use the rental long enough or consistently enough to establish that he maintained it. However, ample evidence shows that Day occupied the rental for at least 10 days during the relevant time period. And his continuity of control, as discussed above, supports the district court’s maintenance determination.
Lastly, Day argued that the district court erred by applying the enhancement because he had no legal right or license to possess the property. While evidence of ownership or a license is probative, application of the enhancement does not require the defendant to have a formal property interest in the premises. Instead, Day’s control over the rental was sufficient for application of the enhancement.
The sentence was affirmed.