may please the court the name is tim murphy and i represent mr mcdowell the appellant in this matter the district court's ruling on the drug premises enhancement could potentially result in every defendant that's convicted of selling drugs who also has a residence being subjected to this enhanced and my client was a guest in his mother's home for approximately a month prior to the arrest in this matter as the court knows there were no drug transactions that were conducted on the premises the only money and the drugs that were found in the premises were found within his discarded clothing which was left around the residence this was consistent with the transit nature of his drug activity which as this court knows had to do with him going to a parking lot on bailey avenue in buffalo where he worked at a kentucky fried chicken and he sold drugs in the car there aside from a vague reference in the probation report paragraph fifteen to packaging this what you said now is in your briefing as well is there no further detail in the record about what these packaging materials more or where they were located where there is a record sat leave it silent judge as far as what's inside the residence and i would  court to paragraph fifteen of the probation report which was adopted by the sentencing court i think you'll find that appendix one thousand one hundred and twenty and as for the money in the drugs i recall that that the drugs were in a jeans pocket and the money was happening in his room if you will what was actually in his room there's two rooms involved here and this is also in paragraph fifteen of the probation report the lower room is considered to be his bedroom there's an upper bedroom as well the lower bedroom is in fact where the the funds are the money is inside his shorts the upper bedroom which is not his bedroom actually has the grams of of the drugs just to clarify that would it be different if it's them money in the drugs or in the corner of the room as opposed to the clothes i mean it sounds like the inference or is that it was trans interaction or something and not hiding yes yes your honor and the picture that district court paints here is that he has control of this one room where everything is and our point in bringing this up just now and in the brief is that he actually is throwing these clothes all over the place and it goes to the question really of control which i can jump into right now as the court knows what we're discussing what it means to maintain those two components there's the possessory interest that we do not dispute he live there but if you look at the application note and subsection b and it requires district courts to ask the question what exactly did they could did the defendant control did you control access did you control activities and just to give a couple of examples for the court the miller case you have the husband and wife selling meth out of their home but they're actually using the premises to actually extradite the process they're telling people that are coming to buy it's on the porch or it's in the barbecue pit they're actually using the premises and showing that they control the activities the floors allayed case from  circuit he was that domineering figure inside his house he controlled activities where people went there's nothing like that in our case all we have is that he lived there is no question he lived there and that's why he left his clothes around as he did i would i would look at  this where your honour's a college kid comes home he stays with his parents for a month he leaves his clothes around and if he were to leave the house commit a crime and come back how does that transform the residence into a maintain drug premises if i'm sorry yes your honor if we were to just assume a set of facts as your simming that he lives in his mother's house but that was his stash of us and he used the bedroom as a the drug dealer was always seen coming and going every time he was going off to a drug deal coming going from the stash house wouldn't that be consistent with that let me let me just finish on our facts and your honor there were approximately one hundred and i want to get your question to you approximately one hundred transactions in total relevant time period here posing counsel argues in their brief that my client left the residence to go do drug deals there and back that happened one time there were two other occasions where he actually leaves the residence to go to drug deals there were six months of the relevant conduct period that occurred before he moved in with his mother what i am asking the court to do is compare these two periods what changed what changed when he moved in with his mother he did the drug deals exactly the same way this goes to the merchant isn't that to suggest that he moved his stash i mean it was a small stash  stash location but i mean just if someone maintains a stash house for two years and then they get evicted and then we you arrest him a month later and doesn't suggest that in that intervening month he couldn't have reestablished a new stash location does except that we know here that the relevant conduct before and my time is running out may i finish this your honor we know that the relevant conduct that occurred before he moved in with his mother was the same m o he was going to that parking lot and selling from the parking lot or he was going to one of the buyers homes there was never a point where he used his own home to i think in your question judge yes that would be using the premises for further ends of distribution but there's nothing to support that all in our record that afternoon may it please the court catherine gregory assistant u s attorney representing the government in this matter your honor there's one issue in this case and that's where that the district court's factual finding that the appellant maintained premises for the purpose of distributing fentanyl was clearly erroneous and it was not if we just take a look at some of the factors that other courts have identified and that are mentioned by the guidelines commentary st was he storing fentanyl in the house yes he was law enforcement recovered four grams approximately a fenton all from the house which according to the p s are leaves the equivalent of ten to thirteen transactions worth affectional going forward did you store proceeds from the fentanyl sales in the house yes he did law enforcement recovered three thousand dollars in cash that was attributable to his drug dealing did he store tools of the trade in the house yes packaging materials and to your daughter's question i've also searched the record i don't believe there's anything more specific than just packaging materials but it wasn't disputed that they were packaging materials in the house did he maintain the house and other factual question now the vernor's court in the th circuit held that living in the residences is typically sufficient to show that someone was maintaining a house or maintaining a process and yes he laying around as well as help with this would agreeing with the district court here mean essentially that anyone who who deals drugs essentially maintains a drug premises if he ever keeps possession of any of the drugs or the money meaning that you have to keep things someplace even if in a transit basis and you could put it in a you could rent a place but then that would be a drug premises you could bring it home with you that would be a drug premises it seems it seems a fairly broad conception of premises on these facts and different from a lot of the published opinions that i've reviewed which do seem to involve storage of larger quantities or  the trade or drug sales taking place at the premises or coconspirators visiting the premises none of which we have here this is this is the the homeless drug dealer argument that the appellant has made and absolutely not your honor erroneous and no and i can i think we there's no question that drug dealers are create a function when it comes to hiding their stash and there are certainly some rube goldberg type setups out there but this would not encompass for example the drug dealer dealing on the corner where who's hiding his stash in a coke can or in a wheel well or i ask about the legal center you keep saying clearly erroneous and as i understand it's not the facts that are in dispute but the application of them to determine whether one of the primary purposes of the premises was to manufacture distribute sufficient to support it we're looking at whether the district court that was able to find by preponderance of evidence that all of these additional were there that he was maintaining the premises and the why was he doing that that's a factual question for the purpose of distributing this controlled substance  getting back to livingston's question about whether this was a compass everyone as i was saying this would not encompass the dealer on the street this would not encompass the career at this would not encompass someone who is maintaining their or who is keeping their stash in a place where they don't maintain the premises knowingly maintain the premises so without giving tips to future criminals are certainly a number of situations where this enhancement would not apply but as the rd circuit has noted this is supposed to be a flexible standard and it's not clear what other circuit decision might we look at that has facts most analogous to those here court has held that the totality of the circumstances is not divide and conquer it's let's look at this holistically and as i said this is this is not the worst possible iteration of fact that you would see where this enhanced mic could apply but it's not whether reasonable minds could disagree this court held in compton that innocent interpretations are insufficient to overcome clear to show clear error the question is whether the district court was clearly erroneous in these factual findings there was no dealer who was observed coming and going freely from this house felt comfortable leaving thousands of dollars and multiple transactions where the fat no in the house admitted that he lived there below did not dispute below the district are before the district court that he had a possessor interest and exerted control over the space and at the height of the open process was travelling to and from of these undercover purchases from the house guy and on more than one occasion going to record from the house to the buy back to the house and i would submit to the court that's because that's where he felt comfortable stashing his fat no one of the primary purposes of the premises has to be manufactured distribution and that the factors here seem like it feels like he's using this is a crash pad he's he's at his mom's place long as close around and doesn't even bother to take the drugs and money out of his pockets only does he just that it's a transients sort of you know place he's staying as opposed to does it mean the only use obviously if it were one hundred percent of the time then that would exclude anyone who lives with other relatives or that would narrow the enhancement too much it would go so far as to say that anyone who lives in a house and also stores their drugs there and uses that as we don't just have the addition of tools of the trade drugs cash we have the observation and the admission of course that he lives there for extended period we have the observations that on multiple undercover purchases he's going straight from the house to the body and the back to the house just because he was conducting drug business elsewhere as well does not mean that he wasn't using this as what the district court found to be his home base and i would just note that you know you should you certainly shouldn't be able to avoid th just because you can set up a stash house on short notice of the fact that he may have been living here there for a short period of relative it goes i think a process a month a half or a month actually unclear in the record but the fact that he was living there for about a month and a standard to what they did in murphy the court there in determining whether there was frequency and a substantial amount of drug activity looked at four factors i won't go through them all but just to focus in on the th one which is the question is it substantial is it actually substantial the use of this property for this drug activity the six the th the eight circuits all say analogous things is it substantial is it significant doing need this property and this court has the opportunity here to look at this conduct before and after he moves in here what we heard from opposing counsel is true he lived there he wasn't we're not denying that but that goes to or comes back to our st point unless you don't have a home how is this not going to apply to you and i i respectfully do have to correct that other allegation only one time did he leave the residence and then come back to the residence after a drug deal and it was about two or three percent of all the relevant conduct period that the court has before it unless there's any other questions i thank you thank you both and we will take her and her eyes and that's the last case to be argued on the calendar today so i'll ask her