United States Court of Appeals

For the First Circuit

No. 20-2063

UNITED STATES OF AMERICA,

Appellee,

v.

HANNAH PATCH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Kayatta, Selya, and Barron,

Circuit Judges.

Ralph A. Jacobs for appellant.

Benjamin M. Block, Assistant United States Attorney, with 

whom Donald E. Clark, Acting United States Attorney, was on brief, 

for appellee.

August 16, 2021
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SELYA, Circuit Judge. This sentencing appeal turns not 

on what the record shows but, rather, on what the record fails to 

show. The paucity of the evidence on the critical issue requires 

us to vacate the defendant's sentence and remand for resentencing. 

Inasmuch as this appeal trails in the wake of a guilty 

plea, we draw the facts needed to put it into perspective from the 

change-of-plea colloquy, the undisputed portions of the 

presentence investigation report (PSI Report), and the sentencing 

transcript. See United States v. Rivera-González, 776 F.3d 45, 47 

(1st Cir. 2015); United States v. Del Valle-Rodríguez, 761 F.3d 

171, 173 (1st Cir. 2014).

On February 8, 2019, a federal grand jury sitting in the 

District of Maine charged defendant-appellant Hannah Patch, then 

age 22, in a single count of a multi-count superseding indictment. 

Specifically, the grand jury charged the defendant with 

maintaining a drug involved premises in Springvale, Maine, during 

the spring and summer of 2018. See 21 U.S.C. § 856(a)(2). The 

government's evidence showed that the defendant had leased an

apartment as her place of residence and that, while living there, 

she had allowed her boyfriend, Joshua Weldon, to use the apartment 

as a base of operations for his drug-trafficking activities. 

After some preliminary skirmishing, not relevant here, 

the defendant pleaded guilty to the lone count lodged against her. 

The defendant admitted the truth of the prosecution's version of 
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the relevant events. Her admissions confirmed that, with her 

knowledge, the drug-trafficking ring headed by her boyfriend had 

stored and processed controlled substances at her apartment and 

had distributed such substances from that location. 

The district court proceeded to order the probation 

department to prepare the PSI Report. When submitted, the PSI 

Report disclosed that the defendant not only was aware of the drugrelated activities taking place in her home but also had 

accompanied Weldon on several resupply trips to Lawrence, 

Massachusetts. The probation department recommended a series of 

guideline calculations, and the defendant objected to several of 

those calculations. 

The district court convened the disposition hearing on 

October 20, 2020. One area of disagreement focused on USSG 

§2D1.8(a). That guideline provides that the base offense level 

(BOL) for the defendant's offense of conviction — maintaining a 

drug involved premises, 21 U.S.C. § 856(a)(2) — shall be:

(a) Base Offense Level:

(1) The offense level from §2D1.1 applicable 

to the underlying controlled substance 

offense, except as provided below.

(2) If the defendant had no participation in 

the underlying controlled substance offense 

other than allowing use of the premises, the 

offense level shall be 4 levels less than the 

offense level from §2D1.1 applicable to the 

underlying controlled substance offense, but 

not greater than level 26.
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After hearing the parties, the court found that the defendant's 

culpable "involvement was more than simply maintaining premises" 

because "she was involved in the sense of maintaining the premises 

and being present and being in the trips for resupply." 

Consequently, the court found that the offense-level cap under 

USSG §2D1.8(a)(2) did not apply.

With additional adjustments, none of which needs to be 

recounted here, the court set the defendant's total offense level 

at 23 and assigned her to criminal history category I. The court 

then varied downward by two levels based on the youthful age at 

which the defendant became romantically entangled with Weldon and 

the effect of that relationship on her conduct. See USSG §5H1.1. 

Following this downward variance, the defendant's total offense 

level was 21, which — combined with her placement in criminal 

history category I — yielded a guideline sentencing range (GSR) of 

37-46 months. The court proceeded to sentence the defendant to a

below-the-range term of immurement of thirty-four months, to be 

followed by a three-year term of supervised release. This timely 

appeal ensued.

In this venue, the defendant assigns two claims of 

sentencing error. First, she submits that the district court erred 

by declining to apply the offense-level cap limned in section 

2D1.8(a)(2). Second, she submits that the district court erred by 
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applying a two-level enhancement under USSG §2D1.1(b)(12) because 

the ongoing drug activity did not amount to a primary or principal 

use of the apartment. See id., cmt. n.17 (explaining 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").

These assignments of error implicate different standards 

of review. The defendant's first assignment of error was raised 

below and, therefore, is reviewed for abuse of discretion.1 See

Gall v. United States, 552 U.S. 38, 51 (2007); United States v. 

Martin, 520 F.3d 87, 92 (1st Cir. 2008). In contrast, her second 

assignment of error is raised for the first time on appeal. If 

not waived (as the government contends), review is solely for plain 

error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 

2001). 

We begin — and end — with the defendant's first 

assignment of error. The district court calculated the drug weight 

of the trafficked drugs, including an allowance for conversion of 

cash found in a warrant-backed search of the apartment, to be 

1 The abuse-of-discretion standard is not one-dimensional. 

Under that standard, "we review the sentencing court's findings of 

fact for clear error and questions of law . . . de novo." United 

States v. Rivera-Morales, 961 F.3d 1, 15 (1st Cir. 2020). 
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4,365.84 kilograms of converted drug weight. This drug weight 

ordinarily would call for a BOL of 32, see USSG §2D1.1(c)(4), for 

a defendant who was guilty of maintaining a drug involved premises. 

Withal, USSG §2D1.8(a), quoted above, bifurcates the calculation 

of the BOL in such cases. Under subsection (a)(1), the BOL is 

premised on the calculated drug weight of the drugs involved in 

the underlying drug operation. If (a)(2) applies, however, the 

BOL is capped at 26.

The essence of the defendant's claim is that she should 

have received the benefit of the offense-level cap. She did not, 

she contends, participate in the drug operation beyond simply 

permitting her apartment to be used by the drug ring. The district 

court rejected this contention, citing evidence in the record that 

the defendant had accompanied Weldon on several automobile trips 

from Springvale, Maine to Lawrence, Massachusetts to re-stock drug 

inventory. 

The central question on appeal reduces to whether the 

record evidence, including reasonable inferences therefrom, 

supports the district court's determination that the defendant, 

above and beyond the provision of her apartment as a drug involved

premises, can be said to have participated in the drug operation. 

See USSG §2D1.8(a)(2); see, e.g., United States v. Dengler, 695 

F.3d 736, 739 (8th Cir. 2012). The courts of appeals are divided 

as to which party bears the burden of proof on this issue. Compare
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In re Sealed Case, 552 F.3d 841, 846-47 (D.C. Cir. 2009) (placing 

burden of proof on government) and United States v. Leasure, 319 

F.3d 1092, 1096-98 (9th Cir. 2003) (same), with United States v. 

Dickerson, 195 F.3d 1183, 1189-90 (10th Cir. 1999) (placing burden 

of proof on defendant). Much depends on whether subsection (a)(1) 

is viewed as an enhancement or, conversely, whether subsection 

(a)(2) is viewed as a downward adjustment. See Leasure, 319 F.3d 

at 1096; see also United States v. Ortiz, 966 F.2d 707, 717 (1st 

Cir. 1992). This court has not spoken to the issue, and we need 

not do so today: the government has conceded, for purposes of 

this case, that it bears the burden of proving that the subsection 

(a)(2) cap is not applicable, and we proceed with that concession 

in hand.

Typically, we give the language used in guideline 

provisions its plain and ordinary meaning. See United States v. 

Brewster, 1 F.3d 51, 54 (1st Cir. 1993). In common parlance, the 

word "participation" means "taking part with others in an 

activity." Participation, Webster's Third New Int'l Dictionary 

(1981). It follows that the government had the burden in this 

case to prove by a preponderance of the evidence that the defendant

"took part with others" in the drug operation in some way other 

than her mere provision of the apartment for drug involved

activity.
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On this question, the record evidence is thin. The only 

evidence is that the defendant accompanied Weldon on a few 

occasions when he drove from Maine to Massachusetts to pick up 

drugs from his supplier. There is no evidence that her presence 

on these jaunts furthered the drug operation: the record does not 

show, say, that she drove the car, served as a lookout, or 

interacted with the supplier. For aught that appears, she was 

merely along for the ride as a passenger in the vehicle. Nor does 

the record give any indication that her presence on these trips 

differed in any way from her presence in the car on other (nondrug-related) occasions, such as when she and Weldon drove together 

on social outings, on trips to the supermarket, or the like. In 

short, the record shows only that the defendant was present on the 

resupply trips, and we think that mere presence at the scene of 

criminal activity is insufficient to show participation. See

United States v. Hunt, 487 F.3d 347, 351 (6th Cir. 2007) 

(enumerating possible forms of participation); cf. United States

v. Hyson, 721 F.2d 856, 862 (1st Cir. 1983) (reversing drug 

conviction because evidence showed only mere presence).

To be sure, we previously have distinguished between 

"mere presence" and "culpable presence" in the context of drugtrafficking activities. See United States v. Paulino, 13 F.3d 20, 

25 (1st Cir. 1994). Although mere presence will not suffice to 

sustain criminal charges, "a defendant's presence at the point of 
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a drug sale, taken in the light of attendant circumstances, can 

constitute strong evidence of complicity." United States v. 

Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993). By way of 

illustration, we have ruled that, when a defendant was a passenger 

in a car during a drug transaction, evidence that he participated 

in a conversation between the seller and the buyer while sitting 

in the car supported a finding of complicity. See Ortiz, 966 F.2d 

at 712-13. This is so, we said, because it reasonably can be 

assumed that "criminals rarely welcome innocent persons as 

witnesses to serious crimes and rarely seek to perpetrate felonies 

before larger-than-necessary audiences." Id. at 712.

Here, however, the Ortiz inference is of no assistance. 

After all, the defendant is not a person claiming to be innocent 

of any knowledge of drug activities. She admittedly made her 

apartment available for use by the drug ring. The only question 

is whether she participated in any other or further way to advance 

the business of the drug operation. So the Ortiz inference — which

might have helped to prove that Weldon would not have taken her on 

the trips if she was unaware of its purpose — tells us nothing 

about whether the defendant "otherwise participated" in the drug 

operation. Without the benefit of the Ortiz inference, the record 

evinces no actions by the defendant and no interactions between 

her and her boyfriend from which a court reasonably can infer 

participation. Because the attendant circumstances do not differ 
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from those surrounding an innocent car ride, there is no basis to 

find, by preponderant evidence, that her presence was anything 

other than innocent.

In addition to the ride alongs, the district court also 

noted that the defendant "certainly was aware of what was going 

on" and "was involved in the sense of maintaining the premises and 

being present." But knowledge, like mere presence, is insufficient 

to show participation in the drug operation. See Altamirano v. 

Gonzales, 427 F.3d 586, 591-92 (9th Cir. 2005) (concluding that 

presence in an automobile, without more, is not a sufficient 

affirmative act to constitute participation in criminal conduct 

even if passenger is aware of criminal conduct by others). After 

all, evidence that a defendant had knowledge of criminal activity 

does not supplant the need for evidence that she took some steps

to assist in that activity. See United States v. Luciano-Mosquera, 

63 F.3d 1142, 1151 (1st Cir. 1995).

This is not a case in which some other person's actions 

can be imputed to the defendant. The core requirement of section 

2D1.8(a) is that a defendant can be denied the safe harbor of 

subsection (a)(2) only if she personally participated in the drug 

operation in some way, apart from providing her apartment for the 

drug ring's use. To construe the participation requirement more 

broadly would render subsection (a)(2) meaningless because — in 

any case in which a conviction is obtained under 21 U.S.C. 
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§ 856(a)(2) — there will always be some use of the premises by 

some person implicated in the drug operation.

The sockdolager here is that the government has conceded 

that it had the burden of proving that subsection (a)(2) does not 

apply. The Supreme Court has made it pellucid that "if the 

evidence is evenly balanced, the party that bears the 

burden . . . must lose." Dir., Off. of Workers' Comp. Programs, 

Dep't of Lab. v. Greenwich Collieries, 512 U.S. 267, 272 (1994). 

This principle applies with undiminished force in criminal 

proceedings. See, e.g., Kirkland v. United States, 687 F.3d 878, 

890 (7th Cir. 2012) (setting aside sentence enhancement based on 

"ambiguous record" where government bore burden of proof); United 

States v. Johnson, 648 F.3d 273, 278-79 (5th Cir. 2011) (concluding 

that because record on crucial issue was unclear and because 

government bore burden of proof on that issue, defendant's sentence 

had to be vacated); Jake v. Herschberger, 173 F.3d 1059, 1067-68 

(7th Cir. 1999) (determining, in habeas context, that "record [was] 

unclear one way or the other" on particular issue, that government 

bore burden of proof on that issue, and that, therefore, habeas 

petitioner must prevail).

This is an even stronger case for the defendant. The 

record, shorn of guesswork and speculation, simply does not permit 

a reasoned determination that the defendant participated in the 

drug operation within the meaning of USSG §2D1.8(a)(2). Given 
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such lack of evidence, the party bearing the burden of proving the 

existence of an occurrence surely cannot prevail. It follows that 

the district court's decision that the offense-level cap did not 

apply cannot stand.

In view of this holding, we see no reason to reach the 

defendant's second assignment of error. The applicability of the 

offense-level cap will — as the parties have recognized — make the 

section 2D1.1(b)(12) enhancement moot. Given that reality, no 

useful purpose would be served by us either attempting to resolve 

the waiver question or plunging into the applicability vel non of 

the enhancement.

We need go no further. The Supreme Court has left no doubt that 

a properly calculated guideline range is the starting point for most sentences 

imposed — as was this one — under the advisory sentencing guidelines. See

Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016); see also

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907-08 (2018). The 

sentencing error that we have identified resulted in an increased BOL, which 

led in turn to a miscalculated GSR. Accordingly, the defendant's sentence 

must be vacated and the case remanded for resentencing. Even if the sentence 

imposed is within or below a properly calculated GSR, that circumstance alone

is insufficient to avoid the need for resentencing. See Molina-Martinez, 

136 S. Ct. at 1345.

Vacated and remanded.