United States Court of Appeals For the First Circuit

No. 21-1688

UNITED STATES OF AMERICA,

Appellee,

v.

ANDY MELENDEZ-ROSADO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Gelpí, Selya, and Thompson, Circuit Judges.

Allan Amir Rivera-Fernández on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Maarja T. Luhtaru, Assistant United States Attorney, on brief for appellee.

January 9, 2023 SELYA, Circuit Judge. This sentencing appeal presents

an issue of first impression in this circuit: may the so-called

stash-house enhancement, see USSG §2D1.1(b)(12), be imposed in

circumstances in which a particular dwelling is both the residence

of the defendant and his family and a place where drug-distribution

activities regularly occur? We answer this question in the

affirmative, concluding that a particular premises may have more

than one principal use. To complete our task, we uphold the

district court's factual findings, dispose of the defendant's

other claims of error, and affirm the challenged sentence.

I

We briefly rehearse the relevant facts and travel of the

case. "Where, as here, a sentencing appeal follows a guilty plea,

we glean the relevant facts from the change-of-plea colloquy, the

unchallenged portions of the presentence investigation report (PSI

Report), and the record of the disposition hearing." United States

v. Vargas,

(1st Cir. 2009).

In June of 2020, Puerto Rico police officers began

investigating possible drug-related activity at the Los Mirtos

Public Housing Project in Carolina, Puerto Rico. This

investigation was sparked by information provided by a

confidential informant. According to the informant, the person

living in Unit 97 was selling drugs for defendant-appellant Andy

Melendez-Rosado (who lived in Unit 85).

- 2 - On July 2, the officers observed an individual receiving

a fanny pack on the balcony of Unit 85. That individual then

carried out two suspected drug sales: one on his way to Unit 97

and another on the balcony of Unit 97. The next day, a suspected

drug user went to Unit 97 and gave an adult occupant cash. The

occupant asked that person to wait, went to the balcony of Unit

85, interacted there with an unidentified person, received a bag,

and returned to Unit 97 to complete a drug sale.

About a week later, the officers executed a search

warrant for Unit 85. The defendant lived in the unit with two of

his children, and the three of them (along with two other children)

were on the premises at the time of the search. The officers saw

crack cocaine on a kitchen counter and in a cooking strainer. They

found two sets of scales and a black bag containing (among other

things) heroin, drug paraphernalia, and plastic baggies of the

sort used to package drugs. They also found $705 in cash. In the

bathroom, the officers discovered three magazines fully loaded

with .40-caliber ammunition. In one bedroom, they turned up

baggies containing heroin and fentanyl. And in another bedroom,

they turned up a .40-caliber firearm equipped with a full magazine.

The total drugs seized included 682 baggies of heroin, two bags of

crack cocaine, two bags of marijuana, and a quantity of fentanyl.

After waiving his Miranda rights, see Miranda v.

Arizona,

(1966), the defendant admitted owning

- 3 - both the drugs and the firearm seized during the search. What is

more, he admitted that he controlled a drug point and that he

possessed the firearm in furtherance of his drug-related

activities.

The seized drugs were tested and weighed. The drug

quantities amounted to 43.2 grams of heroin, 30.4 grams of crack

cocaine, 67.47 grams of fentanyl, and 31.11 grams of marijuana.

In due course, a federal grand jury sitting in the

District of Puerto Rico returned a five-count indictment, which

charged the defendant with possession with intent to distribute

marijuana (count 1), see

(a)(1); possession with

intent to distribute cocaine base (count 2), see id.; possession

with intent to distribute heroin (count 3), see id.; possession of

a firearm in furtherance of a drug trafficking crime (count 4),

see

(c)(1)(A); and possession of a firearm and

ammunition as a convicted felon (count 5), see

§ 922(g)(1).

Although the defendant initially maintained his innocence, he

later entered into a plea agreement with the government and pleaded

guilty to counts 2 and 4.

After accepting his guilty plea, the district court

ordered the preparation of a PSI Report. When received, the PSI

Report recommended, as relevant here, a two-level stash-house

enhancement for "maintain[ing] a premises for the purpose of

manufacturing or distributing a controlled substance." USSG

- 4 - §2D1.1(b)(12). The defendant objected to this enhancement because

it was based on "[a]n assumption" and lacking in factual support.

The probation office held firm: although it

acknowledged that the defendant and his family had lived in Unit

85 for about a year, it noted various facts linking Unit 85 to the

drug-distribution business. Among other things, surveillance

records showed that an individual had gone to the defendant's

apartment (Unit 85) "and received drugs for further

sale/distribution"; a lawful search of the apartment disclosed

that the defendant had significant quantities of drugs and drug

paraphernalia, along with a firearm; and the defendant himself had

"admitted [that] he control[led] a drug point."

The PSI Report also attributed a criminal history score

of six points to the defendant, which placed him in criminal

history category (CHC) III. The defendant objected to this score,

challenging the attribution of a single criminal history point for

a 2012 arrest for possession of cocaine with intent to distribute.

The defendant claimed that he had successfully completed a

diversionary program and that there had been no admission of guilt.

Once again, the probation office disagreed with the defendant's

objection, asserting that it had secured documentary proof to the

effect that "the defendant entered a plea of guilty on January 23,

2013."

- 5 - Once the dust had settled, the probation office compiled

an amended PSI Report and recommended a total offense level of

twenty-seven and a CHC of III. These recommendations yielded a

guideline sentencing range of eighty-seven to 108 months for count

2. The guideline sentencing range for count 4 was sixty months —

the statutory mandatory minimum. See

(c)(1)(A)(i).

Additionally, the probation office cautioned that the sentence on

count 4 had to be imposed to run consecutively to the sentence on

count 2. See

§ 924(c)(1)(D)(ii).

At the disposition hearing, defense counsel sought a

sentence of sixty months on count 2, to be followed by a

consecutive sentence of sixty months on count 4. The government

joined this recommendation (as it had promised to do in the plea

agreement). After hearing the arguments of counsel and the

defendant's allocution, the district court adopted the guideline

calculations limned in the amended PSI Report. The court then

turned to the sentencing factors adumbrated in

(a).

The court considered, among other things, the defendant's age,

education, employment, history of marijuana use, and offense

conduct.

In the end, the court determined that an eighty-seven-

month term of immurement on count 2, followed by a sixty-month

term of immurement on count 4, comprised the appropriate sentence.

- 6 - The court imposed that sentence and dismissed the remaining counts.

This timely appeal ensued.

II

"Appellate review of claims of sentencing error entails

a two-step pavane." United States v. Matos-de-Jesús,

(1st Cir. 2017). Under this bifurcated framework, we

first assay any claims of procedural error. See

If the

sentence passes procedural muster, we then assay any claim of

substantive unreasonableness. See

At both steps of this pavane, "we review preserved claims

of error for abuse of discretion." United States v. Rivera-

Morales,

(1st Cir. 2020). "The abuse-of-discretion

standard is not monolithic: within it, we review the sentencing

court's findings of fact for clear error and questions of

law . . . de novo."

A

We start with the defendant's claims of procedural

error. The first such claim targets the district court's

deployment of the two-level stash-house enhancement. See USSG

§2D1.1(b)(12). Although the parties quibble over whether this

claim of error was appropriately raised below, we need not resolve

that disagreement. Instead, we assume — favorably to the defendant

— that the claim was preserved and that review is therefore for

abuse of discretion.

- 7 - The stash-house enhancement provides that a defendant's

base offense level shall be increased by two levels "[i]f the

defendant maintained a premises for the purpose of manufacturing

or distributing a controlled substance." Id. An application note

explains that this enhancement "applies to a defendant who

knowingly maintains a premises . . . for the purpose of

manufacturing or distributing a controlled substance, including

storage of a controlled substance for the purpose of distribution."

USSG §2D1.1, cmt. n.17. The application note further explains

that "[m]anufacturing or distributing a controlled substance need

not be the sole purpose for which the premises was 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." Id.

Here, the defendant does not seriously contest that he

maintained the premises (that is, the apartment). Nor could he:

the record is pellucid that the defendant rented the apartment

(Unit 85) and resided in it with his two children. Moreover, he

conceded that he owned numerous items of personal property kept in

the apartment (such as the drugs, the drug paraphernalia, the

firearm, and the ammunition). A defendant who — like this

defendant — occupies and controls a particular premises for a

significant period of time maintains those premises within the

- 8 - meaning of the stash-house enhancement. See United States v. Soto-

Villar,

(1st Cir. 2022).

Even so, the defendant hotly contests whether he

maintained the apartment "for the purpose of manufacturing or

distributing a controlled substance." The principal use of the

apartment, he asserts, was as a familial residence.

The baseline understanding upon which this argument

rests is faulty. The argument assumes that there is only one

primary or principal use for a premises. The application note,

however, does not set up an either/or proposition. Rather, it

speaks in terms of "one of the defendant's primary or principal

uses." USSG §2D1.1, cmt. n.17 (emphasis supplied). That language

unmistakably signifies that there may be more than one primary or

principal use for a premises. See United States v. Galicia,

(5th Cir. 2020); United States v. Sanchez,

(7th Cir.), vacated on other grounds,

(2013). Consequently, a premises that principally serves as a

family residence may also principally serve as a site for the

manufacturing or distribution of a controlled substance.

In concluding that a premises may have two or more

primary or principal uses — for example, as a family residence and

as a drug distribution facility — we do not write on a pristine

page. Other courts have held that the stash-house enhancement is

applicable because a premises has principal uses both as a

- 9 - residence and as a site for the distribution of drugs. See, e.g.,

Galicia,

; United States v. Lozano,

(10th Cir. 2019); Sanchez,

; United States

v. Miller,

(8th Cir. 2012). Seen in this light,

the question before us reduces to whether it was appropriate for

the district court to find that distributing controlled substances

was a principal use of the defendant's apartment.

Whether the distribution of controlled substances

constitutes a principal use of a premises is a fact-sensitive

question. Ordinarily, the answer to this question "may be inferred

from the totality of the circumstances." United States v. Jones,

(1st Cir. 2015). Pertinent circumstances

typically include the activities observed, the quantity of drugs

discovered, and the presence or absence of drug paraphernalia and

tools of the trade. See

Relatedly, application note 17

suggests consideration of "how frequently the premises was used by

the defendant for . . . distributing a controlled substance and

how frequently the premises was used by the defendant for lawful

purposes."1 USSG §2D1.1, cmt. n.17.

1 Like the Eighth Circuit, we are "somewhat baffled" by the application note's instruction to compare the frequency of lawful and unlawful uses when the particular premises is the defendant's residence. Miller,

. As the Eighth Circuit observed "[w]hen the premises in question [i]s the defendant's family home, by definition it [i]s used for that lawful purpose 100% of the time."

For this reason, the Eighth Circuit gives greater weight to other factors (such as the type of activities

- 10 - In the case at hand, the district court's factfinding

(including its adoption of the PSI Report's account of the offense

of conviction) convincingly established that a principal use of

the apartment was for the distribution of drugs. The court noted

that a search of the apartment revealed, among other things,

quantities of heroin, cocaine, fentanyl, and marijuana. These

quantities included a retail-sized inventory of heroin: 682

baggies. Moreover, the search revealed crack cocaine being cooked

in the kitchen, an abundance of drug paraphernalia (including two

sets of scales and a pile of plastic baggies), and a sizeable

amount of cash. Then, too, the search turned up a fully loaded

firearm, widely regarded as a tool of the drug-distribution trade.

See United States v. Ramirez-Frechel,

(1st Cir.),

cert. denied,

(2022). Relatedly, the search

yielded three loaded magazines.

The district court's finding that one of the principal

uses of the apartment was as a site for the distribution of drugs

is strongly supported by several pieces of evidence. For instance,

the finding derives support from the variety and quantity of drugs

(reminiscent of a supermarket for drug sales); the presence of

drug paraphernalia, cash, and tools of the trade; the defendant's

admission that he owned the entire inventory of drugs kept in the

observed on the premises). See

. We adopt the same approach.

- 11 - apartment; his admission that he possessed the firearm in

furtherance of drug-related activities; and his admission that he

controlled a drug point, which the court reasonably could infer

was being run out of the apartment. We discern no clear error in

the district court's finding that one principal use of the

apartment was for drug distribution.

To complete the picture, we note that this finding was

bolstered by the evidence adduced through surveillance of the

apartment complex. Over a span of two days, officers observed

three sales of controlled substances that originated from the

defendant's apartment. The third sale is especially informative:

a buyer went to Unit 97 to purchase a controlled substance; the

Unit 97 occupant asked the buyer to wait while he went to the

defendant's apartment and retrieved a bag; and the occupant then

returned to complete the sale. The court reasonably could infer

that the seller went to the defendant's apartment to obtain the

drugs needed to complete the sale.

That ends this aspect of the matter. When all is said

and done, sentencing courts are entitled to draw common-sense

inferences from the evidence adduced. Because the district court

supportably found both that the defendant maintained the apartment

and that one of its principal uses was as the hub of a drug-

distribution business, we have little difficulty in upholding the

district court's application of the stash-house enhancement.

- 12 - The defendant resists this conclusion. He contends that

the only real evidence of drug distribution is a footnote in the

amended PSI Report (footnote 7). But the defendant is looking at

the record through rose-colored glasses.

The only portion of footnote 7 challenged by the

defendant contains the probation office's explanation that

"surveillance records reflected two incidents in which" an

individual had gone to the defendant's apartment "and received

drugs for further sale/distribution." The defendant attempts to

debunk these surveillance records, contending that "a review of

the documents on the record provide [sic] no mention of where did

the probation officer retrieved this information of a surveillance

record." And because there was insufficient evidence to support

the probation office's factual finding regarding the surveillance

of his apartment, the defendant's thesis runs, the district court

should not have relied on that finding.

It is at least arguable that this claim of error has

been waived. Although the defendant objected to the inclusion of

footnote 7 in the original PSI Report, the probation office

overruled that objection and included the footnote in the amended

PSI Report. The defendant did not advance any objection to any

portion of footnote 7 before the district court. That failure to

register a timely objection may well portend a waiver. See United

States v. Rondón-Garcia,

, 25 (1st Cir. 2018) (holding

- 13 - that failure timely to object constitutes a waiver); United States

v. Hester,

(8th Cir. 1998) (holding that

defendant waived certain objections to PSI Report by failing to

renew them during disposition hearing); cf. United States v.

Franklin,

(1st Cir. 2022) (holding — in

proceeding on revocation of supervised release — that objection

raised at preliminary hearing but not renewed at revocation hearing

was not preserved).

Here, however, we need not decide whether the defendant

waived his claim of error. Even if we assume, favorably to the

defendant, that the claim of error was not waived but merely

forfeited, it cannot succeed. Appellate review of a forfeited

claim is only for plain error. See United States v. Duarte,

(1st Cir. 2001). The district court's reliance on the

PSI Report's characterization of the surveillance records was not

plain error. First, the claimed error — if error at all — was not

"clear or obvious."

Second, the claimed error did not affect

the defendant's substantial rights. After all, the plethora of

other evidence produced at sentencing, taken without regard to the

surveillance evidence, was more than sufficient to ensure a finding

that a principal use of the apartment was for drug distribution

and that, therefore, the stash-house enhancement applied.

We summarize succinctly. We hold that a premises that

serves both as a family's place of residence and as the hub of a

- 14 - drug-distribution enterprise has two principal uses. The fact

that one principal use is for drug distribution permits a

sentencing court to impose the stash-house enhancement. And given

the district court's supportable factfinding, we conclude that the

court did not abuse its discretion in imposing the stash-house

enhancement here.

B

The defendant's second claim of procedural error

involves his criminal history score. Specifically, he complains

that the district court erred by adding one criminal history point

under USSG §4A1.2 for a prior offense — to which he allegedly

pleaded guilty — that was dismissed under a diversionary program.

We need not resolve this claim of error. The PSI Report

assigned six criminal history points to the defendant, placing him

in CHC III. The district court accepted that placement. The

defendant admits that his score includes five properly awarded

criminal history points. Because five criminal history points are

sufficient to place a defendant in CHC III, see USSG ch. 5, pt. A,

it is evident that the disputed criminal history point played no

part in establishing either the defendant's CHC or his guideline

sentencing range. Any error in assigning the sixth criminal

history point would, therefore, appear to be harmless. See, e.g.,

United States v. Battle,

(1st Cir. 2011).

- 15 - We use that tentative language ("appear to be") because

"an appellate court may only deem such an error harmless 'if, after

reviewing the entire record, it is sure that the error did not

affect the sentence imposed.'" United States v. Graham,

, 62 (1st Cir. 2020) (quoting United States v. Alphas,

(1st Cir. 2015)). We have undertaken such an examination,

and we are confident that the disputed criminal history point

played no part in the district court's formulation of the sentence.

In examining the record, "we seek to distinguish between

a judge's reliance on facts in selecting an appropriate sentence

and a judge's reliance on the significance that the Guidelines

appear to assign to those facts in calculating, for example, the

total offense level or criminal history category." Id.; see United

States v. Goergen,

(1st Cir. 2012). Here, the record

makes manifest that the district court placed no particular weight

on either the diversionary disposition or the extra point in the

defendant's criminal history score when fashioning the defendant's

sentence. The court mentioned the diversionary disposition only

once (in its explanation of why the defendant was in CHC III).

When explicating its sentence, the court did not allude to that

disposition in any way. Because there is nothing in the record to

support an assertion that the defendant's sentence was affected by

the inclusion of the sixth criminal history point, we are satisfied

that any error in awarding that point was patently harmless.

- 16 - C

This brings us to the defendant's claim that his sentence

is substantively unreasonable. His main argument is that his

sentence is substantively unreasonable because the court

erroneously imposed the stash-house enhancement and, thus,

increased his base offense level by two levels. But as we already

have explained, see supra Part II(A), the court did not err in

imposing the enhancement.

The defendant also makes a more general claim of

unreasonableness. Our review of this claim is for abuse of

discretion. See Holguin-Hernandez v. United States,

(2020). We recognize that in criminal sentencing,

"reasonableness is a protean concept." United States v. Martin,

(1st Cir. 2008). As such, "[t]here is no one

reasonable sentence in any given case but, rather, a universe of

reasonable sentencing outcomes." United States v. Clogston,

(1st Cir. 2011). Our task, then, is "to determine

whether the [challenged] sentence falls within this broad

universe." Rivera-Morales,

.

The defendant's sentence has two constituent parts: an

eighty-seven-month sentence on count 2 (the drug-distribution

count) and a consecutive sixty-month sentence on count 4 (the

firearms count). The latter sentence is a mandatory minimum

- 17 - sentence, see

(c)(1)(A)(i), so the defendant's

challenge is necessarily directed to his sentence on count 2.

The defendant's sentence on count 2 is at the low end of

the guideline sentencing range for that count. Where, as here, a

challenged sentence falls within a properly calculated guideline

sentencing range, the defendant "faces a steep uphill climb to

show that the length of the sentence is unreasonable." United

States v. deJesús,

(1st Cir. 2021). That climb

becomes even steeper when — as in this case — the challenged

sentence is at the very bottom of the guideline range. See United

States v. Demers,

(1st Cir. 2016).

In the last analysis, a sentence will fall within the

universe of reasonable sentencing outcomes as long as it rests on

"a plausible rationale and . . . represents a defensible result."

Rivera-Morales,

. The sentence challenged here rests

on a plausible rationale. The district court considered the

relevant section 3553(a) factors and the parties' sentencing

recommendations. The court determined "that the sentence

recommended by the parties d[id] not reflect the seriousness of

the offense, d[id] not promote respect for the law, d[id] not

protect the public from further crimes by [the defendant], and

d[id] not address the issues of deterrence and punishment."

Instead, the court concluded that the possession of heroin,

cocaine, fentanyl, and marijuana, the presence of a loaded firearm

- 18 - in a child's bedroom, and other evidence of drug distribution

warranted a sentence within the applicable guideline range. We

deem this rationale plausible.

In addition, the challenged sentence represents a

defensible result. The defendant was found in his apartment with

four children. Law enforcement officers retrieved quantities of

various drugs from the apartment. Officers also retrieved a loaded

firearm and several loaded magazines. The defendant admitted to

owning all of the drugs, the firearm, and the ammunition. Last —

but far from least — the defendant admitted that he controlled a

drug point in the housing project. Given these circumstances, a

sentence at the low end of the guideline sentencing range is wholly

defensible.

Because the challenged sentence rests on a plausible

rationale and reflects a defensible result, it is substantively

reasonable. The defendant's claim of error therefore fails.

III

We need go no further. For the reasons elucidated

above, the challenged sentence is

Affirmed.

- 19 -