good morning everyone this is judge wellstone in tampa judge let go of as then miami judge andersen is in macon and i think we're ready to proceed before we began  like to thank counsel for your cooperation with the court and accommodating these arguments by telephone and especially your cooperation with mr barrow of the circuit executives office and that's normal for the deputy clerk and of course mr robinson who will serve as our courtroom deputy this morning as you've been advising mr robinson is the time keeper and he will let you know when your time is a bill that you know when the yellow light is on and the red light is on so i think we are ready to proceed the panel has not previously conferred with regard to any of these appeals that we will hear this morning and we have three that we will hear this morning but we have read to brace and examined the relevant parts of the record if that will assist you in confining your arguments to the issues on appeal six years he moved it to the current location and he was there for three years during that period of time he had eleven packages of marijuana distributed i'm sorry thirteen packages on the day this is only eleven days during that period of time a commentary makes clear that this guideline is intended to punish more harshly people who maintain its premises maintain the property for more than one primary purpose in other words is it possible that a premises can have as its purpose a convenience store and a place for the distribution of drugs and if that's defendant and that is vs how whether it's used for lawful purposes or you are your own are supposed to weigh the frequency of the use that specifically says the word frequency so if you look at how frequently  and then open the shop and that was clearly a plot to shop with a front for the ongoing drug business he had to barbers who ended up they weren't even working there by the time it was arrested and ongoing drug dealing and then the boy that was it that was also a short time frame correct in georgia was going like a one and a half month or two month period between opening the shop the barber shop and the church for well but the point being that the entire time he was in business in the shop he was dealing drugs as well i understand that that case clearly was more of a of a front in this case is there any evidence other than what you discussed already to support  an argument that the store the grocery store was a front argument to support the grocery store in our case was not up front because clearly no i understand that but is there any evidence to the contrary any evidence to show that it was that it was not that it was not a front yes the evidence was st of all it's an ongoing business he was making money from nd of all none of the employees who worked in the store ever saw anything about drugs nothing ever happened in the store about before he ever got involved with taking these packages of marijuana both of them were purchased for protection in the store long before he ever accepted the st package nd of all those there was evidence that there was a gale and there was something in the pre sentence report about suspected marijuana on the scale and i was if you look at the testimony from the agent during the sentencing hearing the agent testified they don't know whether that was marijuana they never tested it and if you look at the pictures you can see pictures that are put into evidence that picture of the scale this is three by four inch teeny small little folding scale that was going to lower somewhere  made he didn't make specific findings with to what was going on in the store has findings were actually contrary to a finding maintaining the premises he found  business had two primary purposes number one a convenience store and number two a place for the distribution of drugs if that's the case if there are two primary purposes and we look at a tot i realize that several of the cases have a lot more oil evidence than in this case but the george case involves not only that barbershop with the back room that you talk about but transaction that nevertheless it was one of the primary purposes and the coat i think that it can be in fact i'm reading from the the right column it can be a primary use so long as the drug activity is mo is an incidental and collateral right and i hire you to get around where we would agree that if that's what you're doing and you're running sort of a business out of your home then that would qualify but that's not what happens here that's the wh be included because there is evidence that he made repeated sales later in addition to receiving the thirteen pack your honor there is no evidence that he was involved in any whatever mr meat was doing in the parking lot nd of all that there was this provision covers enclosures that doesn't cover a parking lot specifically in sections seventeen even if there were and he had moved to california so he was not here he was sending packages and the packages were being picked up sometimes i think by relatives and they would be almost immediately t drop off location and if this court were to find that every time there was a drop off location that gave you a two level and have every single case would have one because there's always a drop o george and george doesn't set the bar very high for the application of the enhancement well but i know it doesn't george with respect to the business and must deal with the business not the apartment with the business in that case it clearly was a front because it was only in operation for less than a month or a month and a half before there was a search warrant issued two of the  quit in the middle of it and you had a back room that clearly was an operation a drug store operation and they were running the drug operation from the back room here you have a store that is a legitimate store that actually had sales of two thousand or three thousand dollars a day how is it how is this case the same yes for sure i would say i think the evidence that the that the business the barber shop and george that was a front is stronger i don't think the government has ever seriously disputed that mr music business functions legitimately the reason that doesn't carry the day for mr museum is that the guidelines specifically contemplate that a premise or collateral use of the premises so how in this case is it not an incidental or collateral use of the premises when you have a actual operation where the premises is being used primarily and for the significance and the word incidental or collateral has a meaning and it has a as a usage in the english language and you cannot have something you cannot have two principal uses either one is  principle or you have one that is incidental or collateral so how i this case is is it not incidental or collateral i would say that you can have multiple principal or primary uses of the premises i think the guidelines specifically contemplate that and that is played out in this court's precedent and the precedent of other courts and the most common example that you see is not necessarily a business but i would point to where it's a house or in georgian apartment and so you can have something that serves one hundred percent as your primary residence but if you're still using that is an enterable an important part of your drug distribution activities then that also this court is held can be a primary purpose of the premises collateral means additional but court's precedent and the guidelines it still can then the district court can still reasonably conclude based on this evidence that it was a primary purpose of the premises this is a court i'll refer to some of the district court's findings he says that this center of the organization the drug organization was the he or he also says referred to as the business office of the conspiracy and that it was used repeatedly for drug dealing activity i also want to point out i know that government's exhibit enforcement reset that mystery he was storing and selling marijuana at the store and that he kept the marijuana either under the front counter or in the back office space where he also had to drug proceeds and a sawed off shotgun and i think that goes to show that certainly it was an integral the usage of the store was an integral part of the struck conspiracy and that certainly supports the district court's application of the enhanced i'd also point the court to late as august of two thousand and eighteen when we had the search testimony not testimony his statement because he did not testify at the sentencing hearing and as well as the shotgun with a shorter barrel so there are certainly things that are corroborating that this is more than just a drop off location for the marijuana shipments but also point the court to the fact that the defendant testified that he received payment for marijuana at the store and that it would be brought from al jazeera siblings who are also involved and they would bring it to him specifically at the store to pay him also were true to store employees to receive marijuana packages at her home obviously that's not she's not receiving them at the store but it's a usage of his position that the store has ownership of the store is the store employee who received the drugs in their home are they should they be given the two to they be given a handsome as well as two point hands i would say in this case i think the testimony was the employee didn't know that she was receiving marijuana i think it might need more than just receiving it at your home incidentally and i don't recall specifically how many times she received but i think in this case you have it's more than just the receipt of the deliveries you also had things that are all centered around the chicago store and certainly given the totality of the circumstances everything i've listed and everything that's in this record i don't believe the district court would clearly and applying has been under as cocaine or not yet cocaine and heroin i believe so that to me does not indicate that that was an exhaustive list i think the important part was that she understood that he was selling drugs and when you peer that understanding sure there's no evidence of cocaine or heroin in this case but you have an employee who understands her boss is selling drugs in the store and then you have all this other evidence that shows these marijuana transactions that are state or that are happening at the store that marijuana that was pre of selling drugs cannot be a collateral purpose for the premises to support the enhancement then why did the district judge say during sentencing quote it's not unusual for premises to be collaterally to be used to collaborate collaterally for the drugs at the same time it is used for other purposes and that suggests that the court misstated the law by suggesting that it could apply the enhancement even if the drug activity was collateral was a collateral use of the property which is in opposition to the guideline commentary sure i was actually about to jump to that point so i think you said it best earlier when if you read the entire statement in context when you compare it to the point the argument from defense counsel that the district court was responding to was that this was a legitimate entirely legitimate business only a fraction of the days that the business has been open involved marijuana transactions and therefore that purpose pales in comparison to similar to what we've been talking about i think the district court comments were aimed at the idea that you can have multiple primary purposes sometimes some of those purposes may be more prevalent like he said often the example of the residence nobody's going to dispute that if you had to rank your marital your primary purposes your home is going to be number one as opposed to even if you're using it every weekend to sell drugs so i think that that's what the district court was responding to and i think his comments that follow the collateral comment make it really clear that he was contemplating this and hanson exactly the way that the guidelines  collateral i don't disagree your honor i think i think the guidelines are clear that it can't be a collateral purpose but i would say that the fact findings that follow that statement make it clear that i mean they're inconsistent with the finding that it was a collateral purpose right if you will if you found and concluded it was merely and and significant or collateral purpose you wouldn't have been at the center of the organization but let me let me ask you a question though when you when you read the the discussion that the court had after the collateral discussion it seems that the the the district court ruled that one obviously the defendant and no one disputes that he controlled the premises and  controlled who had access to the premises but that's really only two of the factors the rd factor is you that have to decide whether the premises is is the use of it that is incidental or collateral and so it doesn't appear that he then makes that finding or did he miss apply the law that at that point and say i'm finding then that because it is the center of the organization was a store that they're forced not collateral the find of the firearms were near where drugs were delivered and distributed and says that the evidence seems to indicate that the drugs were stored specifically in the storeroom in this well maybe thank you so i arguments of the court apply the proper standard and emphasize that it had to be a primary or principle it couldn't be collateral so certainly a court reference collateral i think when you read everything together and in the record and you pair that  with undisputed evidence with pre sentence report it's clear the district court did not clearly err in applying this unhandsome even though another fact finder could have perhaps viewed the evidence differently the final point i'd like to me to make if i may is that  the miller case makes the point this is an exact well miller discusses in the context of the house but this is the exact kind of premise of the premises that is intended to trigger the congress and the sentencing commission intended to trigger t you have a defendant who is accepting marijuana at his store his convenience store that he runs as a legitimate business and so he's intermingling drug distribution with legitimate  so therefore it wouldn't be dispositive whether nottingham applies but i don't think it's relevant to whether or not the guidelines calculation was was the guidelines were correctly calculated when the evidence otherwise support the st in order of importance or mate and certainly it is impossible to say that when you have a leaven instances over a what three year period the store was open of accepting the organization i'd like to also point out to the judge did not make a finding any findings when he made the finding on this being maintained the premises he didn't make any of those findings about the storage and all that hold so he legally went through the process of buying them and submitted the forms and bought them legally those two guns to protect his property but because they were there it's impossible to carry a burden showing  pled guilty what he does not admit was that this this application would apply to him and i can't emphasize enough that the application if it were to apply to mr ms and he would apply in every case because you have to receive it somewhere and the question is whether you are worthy of an enhancement because you're an aggravated person whether you are more culpable than  normal person because of your conduct and that does that is true of people who run stash houses and open houses where they are using some property