In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-1398 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

MARCUS J. FORD, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Southern District of Illinois. 

No. 3:20-cr-30052-NJR-1 — Nancy J. Rosenstengel, Chief Judge. 

____________________ 

ARGUED OCTOBER 28, 2021 — DECIDED JANUARY 6, 2022 

____________________ 

Before RIPPLE, HAMILTON, and SCUDDER, Circuit Judges. 

HAMILTON, Circuit Judge. Marcus Ford pled guilty to distributing and possessing methamphetamine with intent to 

distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). 

The district court sentenced him to concurrent terms of 168 

months on each count. On appeal, Ford challenges the district 

court’s application of Sentencing Guidelines enhancements 

for possessing a dangerous weapon under U.S.S.G. 

§ 2D1.1(b)(1) and maintaining a drug premises under 
2 No. 21-1398 

§ 2D1.1(b)(12). He argues that the facts did not establish either 

that he constructively possessed the handgun in question or 

that he exercised sufficient control over the bedroom where 

agents found the handgun and drugs. We affirm. The district 

court did not clearly err in finding facts that were sufficient to 

apply both sentencing enhancements. 

I. Factual Background

A person who had known Ford for ten years and had been 

buying drugs from him for approximately six years notified 

federal agents that Ford was selling drugs out of the home of 

one Marshonda Nicholson. The source explained that he/she 

often bought drugs from Ford at Nicholson’s home. If Ford 

did not answer the phone when the source called to set up a 

drug sale, he/she would often just stop by the home and ask 

if Ford was there. Also, the source mentioned that Ford had a 

safe in the rear bedroom where he kept his drugs and cash. At 

the direction of agents, the source made a controlled purchase 

of drugs from Ford. 

Based on the source’s tip and the controlled purchase, 

agents obtained a search warrant for Nicholson’s home. They 

found Nicholson, her partner, and four children in the home, 

but Ford was not there. In the rear bedroom, the agents discovered a fire safe. Inside the safe were $3,007 in cash, 101 

grams of marijuana, and 843 grams of methamphetamine. 

Agents also found a handgun in the closet of that bedroom. In 

addition to the contraband, agents found in the rear bedroom 

two identification cards, several pieces of mail, and prescription drug bottles, all belonging to Ford, as well as photographs depicting him. 
No. 21-1398 3

During the search, agents interviewed Nicholson and her 

partner. Nicholson told agents that she rented the home and 

that “everyone” had access to it, including her brothers. She 

later admitted that Ford also had access. She mentioned that 

Ford had been staying with her for about four months and 

that he was often “in and out.” Nicholson explained that Ford 

mainly used and stayed in the rear bedroom, but there was 

some evidence that her brother also stayed there occasionally. 

She also confirmed that Ford had been at the house the day 

before agents executed the search warrant. 

Nicholson’s partner suggested that both Nicholson’s 

brother and Ford likely used the home as a “dope house.” In 

her own statement, Nicholson conceded that Ford sold drugs 

from the house, that people would come asking for “such and 

such,” and that she would let them in. She also said that the 

drugs in the rear bedroom belonged to Ford. Nicholson said 

she did not “mess with” the rear bedroom and did not know 

who owned the handgun that agents found in the closet. 

II. District Court Proceedings 

A federal grand jury indicted Ford on two counts: distributing methamphetamine and possessing methamphetamine 

with intent to distribute it. Ford pled guilty, stipulating that 

he distributed 79.9 grams of methamphetamine to a confidential source at Nicholson’s home and that he possessed the 843 

grams of methamphetamine, along with the $3,007 in cash, in 

the safe in the rear bedroom. 

The Presentence Report prepared by the United States 

Probation Office recommended that the district court include 

in its Sentencing Guideline calculation two enhancements to 

Ford’s offense level: (1) two offense levels under U.S.S.G. 
4 No. 21-1398 

§ 2D1.1(b)(1) for possessing a dangerous weapon in connection with the drug distribution because Ford possessed the 

firearm that was found close to the drugs in the rear bedroom, 

and (2) two offense levels under § 2D1.1(b)(12) for maintaining a drug premises because Ford used at least a portion of 

Nicholson’s home for the purpose of storing and distributing 

methamphetamine. Ford objected to those enhancements. 

The district court overruled his objections, finding that the evidence supported both enhancements. 

With those enhancements, the district court found that 

Ford’s total offense level was 35 and that he was in criminal 

history category III, yielding an advisory guideline range of 

210–262 months in prison. The court ultimately sentenced 

Ford to 168 months, below the guideline range. The court did 

not indicate, however, that it would have imposed the same 

sentence even without the two guideline enhancements. In 

light of the discussion that follows, we take this opportunity 

to encourage district courts, again, to consider stating clearly 

whether disputed guideline issues actually affected the ultimate sentence. See, e.g., United States v. Colon, 919 F.3d 510, 

519–20 (7th Cir. 2019) (guideline error deemed harmless 

based on judge’s explanation of sentence); see also United 

States v. Williams, 949 F.3d 1056, 1068–70 (7th Cir. 2020) 

(same); United States v. Salgado, 917 F.3d 966, 969–70 (7th Cir. 

2019) (same); United States v. Thomas, 897 F.3d 807, 817–18 (7th 

Cir. 2018) (same). 

III. Analysis

Because Ford objected to both sentencing enhancements in 

the district court, we review the district court’s fact-finding on 

guideline issues for clear error and its legal interpretation of 

the Sentencing Guidelines de novo. United States v. Fluker, 698 
No. 21-1398 5

F.3d 988, 1001 (7th Cir. 2012). The clearly-erroneous standard 

is deferential. We will not disturb the district court’s findings 

of fact unless, after examining the evidence, we are “left with 

the definite and firm conviction that a mistake has been 

made.” Id., quoting United States v. Rice, 673 F.3d 537, 540 (7th 

Cir. 2012). 

A. Possession of a Dangerous Weapon

The Sentencing Guidelines advise adding two offense levels in drug cases “if a dangerous weapon (including a firearm) 

was possessed.” § 2D1.1(b)(1). The commentary for this provision explains: “The enhancement should be applied if the 

weapon was present, unless it is clearly improbable that the 

weapon was connected with the offense.” § 2D1.1 cmt. 

n.11(A). Before a court can apply the enhancement, the government must establish by a preponderance of the evidence 

that the defendant possessed the weapon, either actually or 

constructively. United States v. Thurman, 889 F.3d 356, 372 (7th 

Cir. 2018). If the government proves possession, then the burden shifts to the defendant to show that it was clearly improbable that he possessed the weapon in connection with the 

drug offense. Id. 

Here, the government relied on a theory of constructive 

possession, which requires proof of a nexus between the defendant and the contraband. United States v. Morris, 576 F.3d 

661, 666 (7th Cir. 2009). “Proximity to the item, presence on 

the property where the item is located, or association with a 

person in actual possession of the item” alone is not sufficient 

to prove constructive possession. Id., citing United States v. 

Windom, 19 F.3d 1190, 1200 (7th Cir. 1994). Instead, the government must establish that “the defendant knowingly had 

the power and intention to exercise dominion and control 
6 No. 21-1398 

over the object.” United States v. Katz, 582 F.3d 749, 752 (7th 

Cir. 2009). That power and intention can be established by circumstantial evidence. Morris, 576 F.3d at 666.

The government can demonstrate the required nexus in 

one of two ways. First, if the government shows that the defendant had exclusive control of the property where officers 

discovered the contraband, the court can infer that the defendant constructively possessed the contraband. Morris, 576 

F.3d at 667. Second, if the defendant did not have exclusive 

control over the property, constructive possession can be 

proven by evidence “that a defendant had a ‘substantial connection’ to the location where contraband was seized,” id., 

quoting United States v. Richardson, 208 F.3d 626, 632 (7th Cir. 

2000), but that path also requires the government to show that 

the defendant had a substantial connection to the contraband 

itself, not just that he jointly occupied a residence where the 

contraband was found. United States v. Griffin, 684 F.3d 691, 

697 (7th Cir. 2012).

On appeal, Ford first argues that the district court made a 

legal error by lowering the government’s burden of proof. The 

judge said: “by a preponderance of the evidence it has been 

established that the weapon was present and that it is not 

clearly improbable that Mr. Ford possessed the firearm in 

connection with drug distribution.” Ford contends that comment shows that the court erred by collapsing two distinct issues, possession of the firearm and connection to the drug offenses. In particular, he argues that the court erred by lowering the government’s burden, requiring it to establish only 

that it was not clearly improbable that he possessed the gun 

rather than requiring it to prove possession by a preponderance of the evidence. 
No. 21-1398 7

Taken in isolation, the district court’s quoted comments on 

the point were not as crisp as they could have been, but the 

transcript as a whole persuades us that the district court 

found constructive possession had been shown by a preponderance of the evidence. After reaching that conclusion early 

on, the court focused its analysis on the second, distinct issue, 

whether Ford’s possession was sufficiently tied to the drug 

offenses. We find no legal error in the court’s approach to the 

constructive possession issue. 

Ford also asserts that even if the court held the government to the proper burden of proof, the evidence simply did 

not support a finding of constructive possession of the firearm. He admits that the evidence established that he used the 

rear bedroom to store his drugs, cash, and other personal 

items. He contends, however, that the distance between the 

handgun in the closet and his personal property on the bedroom floor does not support an inference that he had a connection to or exercised control over the weapon. Ford points 

to evidence that he believes undercuts that inference, including that the source did not mention ever having seen him with 

a gun, despite purchasing drugs from him for years, and evidence that the rear bedroom was accessible to others. 

Constructive possession can be joint or sole. See United 

States v. Kitchen, 57 F.3d 516, 519–21 (7th Cir. 1995) (ability of 

other adults to exercise control over firearm and presence of 

their belongings in bedroom did not undermine inference that 

defendant constructively possessed firearm). In cases of joint 

constructive possession, the focus is on whether the government can establish a substantial connection between the defendant and the contraband. E.g., United States v. Alanis, 265 

F.3d 576, 592 (7th Cir. 2001) (affirming jury finding that 
8 No. 21-1398 

defendant possessed gun found in a nightstand near his bed, 

clothing, eyeglasses, and wallet); see also Richardson, 208 F.3d 

at 632 (affirming district court finding that defendant possessed both drugs and firearm; his medicine bottles and 

clothes were in bedroom where officers recovered firearm, he 

received mail at the address, and defendant either resided at 

or was caretaker of property). 

Alanis and Richardson both affirmed findings of possession 

beyond a reasonable doubt. They indicate that the district 

court here did not clearly err in finding by a preponderance 

of the evidence that Ford had a substantial connection to the 

handgun. The district court heard evidence that Ford used the 

rear bedroom where agents found the handgun to store his 

drugs and drug proceeds, including a safe with 843 grams of 

methamphetamine and $3,007 in cash, possession of which 

Ford admitted. His identification cards, mail, prescription 

bottles, and the photographs were close to the small bedroom’s closet where agents found the handgun. Nicholson 

confirmed that, even though others had access to the room 

and may have kept belongings there, Ford was the main user 

of the rear bedroom. 

Ford suggests that the court’s finding that he possessed 

the handgun is undermined by evidence that the source, who 

had known him for ten years, did not report having seen Ford 

with a gun. That evidence weighs in favor of Ford but falls 

well short of showing a clear error given the close proximity 

of the gun to Ford’s drugs and cash in the room where he conducted drug transactions. 

As in many guideline cases, the facts here allowed room 

for argument. On this record, we would not reverse a finding 

that possession had not been shown, but the district court did 
No. 21-1398 9

not clearly err in finding by a preponderance of the evidence 

that Ford possessed the handgun in the closet in connection 

with his drug sales and applying the guideline enhancement. 

B. Maintaining a Drug Premises 

The Sentencing Guidelines advise adding two offense levels if the defendant “maintained a premises for the purpose 

of manufacturing or distributing a controlled substance.” 

U.S.S.G. § 2D1.1(b)(12). The Guidelines define premises to include “a building, room, or enclosure,” so Ford’s control over 

just the rear bedroom could support the enhancement. 

§ 2D1.1 cmt. n.17. 

A defendant maintains a drug premises “if he owns or 

rents [the] premises, or exercises control over them, and for a 

sustained period of time, uses those premises to manufacture, 

store, or sell drugs, or directs others to those premises to obtain drugs.” United States v. Acosta, 534 F.3d 574, 591 (7th Cir. 

2008). The defendant does not necessarily need to have 

owned or rented the premises, but to exercise the requisite 

control, he must have been more than a casual visitor. Id. A 

defendant can maintain the premises even if he does not exercise control to the exclusion of all others. United States v. 

Sanchez, 810 F.3d 494, 497 (7th Cir. 2016).

Ford argues that he did not exercise control over the activities conducted in the rear bedroom to a sufficient degree. He 

asserts that our cases affirming findings that a defendant 

maintained a drug premises often involve defendants who 

did more than keep drugs and conduct an unknown number 

of sales on the premises. In addition, Ford notes that extra 

facts that established control in other cases are missing here. 
10 No. 21-1398 

As the district court noted, Ford did not have a possessory 

interest in Nicholson’s home or the rear bedroom. Nicholson 

rented the home. Ford did not pay her to stay in or use the 

rear bedroom. That lack of a legal possessory interest is not 

necessarily decisive. A defendant who does not have a possessory interest can exercise control over a premises as a matter of fact when he actually conducts his drug enterprise from 

the location. See United States v. Evans, 826 F.3d 934, 938 (7th 

Cir. 2016) (affirming finding that defendant controlled access 

and activities at apartment when he stored and packaged his 

drugs there, told customers to go there to buy drugs, and directed owner where to find hidden drugs and how to sell 

drugs to customers when he was not present); see also Acosta, 

534 F.3d at 591–92 (affirming jury finding that defendant 

maintained home as a drug premises even though owner exercised ultimate control; defendant stayed at home on and off 

rent-free for seven months, cooked, packaged, and sold drugs 

to customers who came to house, and directed owner’s 

daughter to sell drugs). 

The facts here are not identical to Evans and Acosta, but we 

have cautioned that other courts’ reliance on certain facts as 

justifying this enhancement “does not mean that those facts 

necessarily must be shown in every case.” Sanchez, 810 F.3d at 

497, quoting United States v. Johnson, 737 F.3d 444, 448 (6th Cir. 

2013). Whether or not Ford directed Nicholson to sell drugs 

for him, the evidence supported the district court’s finding 

that Ford exercised sufficient control over the rear bedroom 

to have maintained that room as a drug premises. Ford had 

been staying with Nicholson for four months. Although Ford 

did not have exclusive control over the rear bedroom, Nicholson said that Ford was the main user and occupant of it. Ford 

stored his drugs and drug proceeds in a safe in that room. He 
No. 21-1398 11

conceded that he sold drugs out of Nicholson’s home, and Nicholson mentioned that when people would come to her door 

asking for “such and such,” she would let them in. The source 

also confirmed that he/she often met Ford at Nicholson’s 

home to buy drugs and that if Ford did not answer his phone 

ahead of time, the source would just stop by the home and ask 

for him. The district court did not clearly err in finding that 

Ford maintained the rear bedroom as a drug premises. 

Our decision affirming application of the drug premises 

enhancement here should not signal district courts that they 

must apply the enhancement in similar cases. Even under the 

district court’s findings of fact, this case falls close to the limits 

of the “premises” enhancement. It is not hard to find cases 

where we have affirmed this enhancement with more compelling evidence. For example, in United States v. Sanchez we affirmed the district court’s application of the enhancement in 

light of evidence that for two years the defendant had sold 

and stored as much as forty kilograms of drugs from his 

home, that drug dealing was his main source of income, and 

that he was part of a conspiracy responsible for almost $2.5 

million in drug trafficking. 710 F.3d 724, 731–32 (7th Cir. 

2013), judgment vacated on other grounds, 571 U.S. 801 

(2013). Similarly, in Acosta, we affirmed the same enhancement based on evidence that the defendant regularly dealt 

drugs from the home, directed the homeowner’s daughter to 

sell drugs for him when he was not there, and he did not pay 

rent but gave the homeowner free drugs for her personal use. 

534 F.3d at 591–92. 

In this case, by contrast, Ford had been using the rear bedroom for only four months, and Nicholson was not shown to 

have been an active participant in his drug enterprise, limiting 
12 No. 21-1398 

her involvement to letting potential customers in the house 

when they came asking for “such and such.” The evidence 

here, as in other cases, is thus closer to the outer limits of the 

enhancement’s reach. See, e.g., United States v. Zamudio, 18 

F.4th 557, 563 (7th Cir. 2021) (defendant hid bundles of drugs 

throughout his garage for two to three months and kept drug 

paraphernalia in his car); United States v. Winfield, 846 F.3d 

241, 243 (7th Cir. 2017) (defendant stored drugs in his garage, 

sold drugs to an informant four times in the twelve weeks before the police raid, and primarily lived off proceeds from his 

drug sales). 

We recognize that it can be difficult to define the boundaries of the drug premises enhancement. Consistent with the 

Guideline commentary on § 2D1.1(b)(12), we encourage district courts to focus on how often the defendant used the 

premises for his drug enterprise, the scope of the enterprise, 

and the extent to which he controlled access and activities on 

the premises. Although we do not find that the district court 

clearly erred here, we also remind district courts that they 

should not try to stretch these borderline cases at the risk of 

extending this advisory enhancement beyond its intended 

realm. 

AFFIRMED.