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United States v. Murphy

United States Court of Appeals, Tenth Circuit

August 24, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
AARON WILKIE MURPHY, Defendant-Appellant.

         Submitted on the briefs: [*]

          Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:17-CR-00005-CVE-1)

          Virginia L. Grady, Federal Public Defender, and O. Dean Sanderford, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, Colorado, for Defendant - Appellant.

          R. Trent Shores, United States Attorney, and Richard M. Cella, Assistant United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, O'BRIEN, and MATHESON, Circuit Judges.

          O'BRIEN, CIRCUIT JUDGE

         Aaron Wilkie Murphy is a convicted drug dealer and admitted addict. He used his home for drug-related activity. The only issue is whether that use of his home was enough to warrant an enhancement to his sentence under USSG § 2D1.1(b)(12), which increases guideline sentences when drug-related activities are one of the home's primary, as opposed to incidental, uses. The district judge properly applied the enhancement. We affirm.

         I. Background

         In late 2015, local law enforcement officers targeted Murphy in an investigation involving the sale of stolen property. They executed a search warrant at his residence in Broken Arrow, Oklahoma, on November 3, 2015. He was not home at the time of the search, which uncovered multiple stolen items as well as 32.5 grams of heroin, $2, 391 in cash, digital scales, and a handgun. Officers obtained a warrant for Murphy's arrest.

         Several weeks later, on November 25, 2015, officers found and arrested Murphy at his residence, which they again searched pursuant to a warrant. In a safe, they found 42.15 grams of heroin and $33, 900 in cash, comprised solely of $50 and $100 bills. They also seized 28.55 grams of methamphetamine and multiple stolen items. The state court released Murphy on bond on November 27, 2015.

         In January 2016, officers received information from an individual who had been in Murphy's residence that approximately one pound of methamphetamine would be found there. On a separate occasion, they observed Murphy selling methamphetamine to an individual in the parking lot of a local gym. They later learned that Murphy had sold methamphetamine to the same individual on at least ten prior occasions; two of those sales occurred at Murphy's residence. A search of the trash from the residence revealed four plastic baggies containing methamphetamine residue.[1]

         On February 18, 2016, officers traveled to Murphy's residence to execute a search warrant.[2] On the way, they found Murphy in his vehicle and arrested him. Inside the vehicle was 118 grams of methamphetamine and his cellular telephone. The telephone contained text messages of drug transactions. The search of his residence revealed, among other things, heroin residue, a bullet proof vest, digital scales with residue, drug paraphernalia, and keys to a storage unit rented by Murphy in which a rifle was later found. Curiously, the state court again released Murphy on bond on March 29, 2016.

         On November 22, 2016, officers, with a warrant in hand, searched Murphy's residence a fourth time. As they approached the residence, they observed surveillance cameras. Their search of the home revealed a baggie, which turned out to contain heroin, floating in the bathroom toilet. They also found: (1) a baggie of methamphetamine, syringes, and other drug paraphernalia throughout the bathroom, (2) a shotgun in a bedroom closet, and (3) digital scales, baggies, drug residue, and more surveillance cameras in the office. Murphy was arrested and admitted responsibility for the heroin and methamphetamine found in his home. He also admitted "he had been distributing methamphetamine and heroin for some time and that, in the past, he had received pound quantities of methamphetamine and several ounces of heroin at a time." (Supp. R. Vol. 2 at 6.) He was charged in Oklahoma state court with various drug and firearm offenses, which were dismissed when he finally faced federal charges.[3]

         Murphy was indicted for two counts of possession with intent to distribute heroin (Counts 2 and 5), two counts of possession with intent to distribute methamphetamine (Counts 4 and 6), two counts of being a felon in possession of a firearm (Counts 1 and 7), and one count of possession of a firearm in furtherance of a drug-trafficking crime (Count 3). He pled guilty to all counts except Count 3, which the government dismissed in exchange for his guilty plea.[4]

         The Presentence Investigation Report (PSR), which was based upon the 2016 version of the United States Sentencing Guidelines Manual, concluded the offense involved at least 354.37 grams of heroin and 146.55 grams of methamphetamine, resulting in a base offense level of 26.[5] See USSG § 2D1.1(c)(7) & comment. (n.8(B), (D)). Two levels were added because Murphy possessed a dangerous weapon. See USSG § 2D1.1(b)(1). Two more levels were added because Murphy maintained a premises, his residence, for the purpose of manufacturing or distributing a controlled substance. See USSG § 2D1.1(b)(12). After a three-level downward adjustment for acceptance of responsibility, see USSG § 3E1.1, the total offense level was 27. That, coupled with a Criminal History Category of IV, set the advisory guideline range at 100 to 120 months imprisonment for Counts 1 and 7 and 100 to 125 months imprisonment for Counts 2, 4, 5, and 6.[6]

         Murphy objected to the § 2D1.1(b)(12) premises enhancement. The commentary to that guideline requires the manufacturing or distribution of drugs be a primary or principal use of the premises, not merely an incidental or collateral one. He claimed he primarily used the premises as his home, having slept and eaten there on a daily basis for over 10 years. His drug-related activities, on the other hand, were a mere incidental use because, with the exception of two drug sales, the trafficking occurred outside his home.

         The district judge would have none of it:

In this case, the defendant distributed methamphetamine from his home on at least two occasions. He also used his home for storage of large quantities of methamphetamine and heroin, proceeds obtained from illegal activities, and distribution materials, including digital scales and baggies on at least four occasions when his home was searched by law enforcement.
Further, law enforcement observed the defendant traveling directly from his residence to complete drug transactions also implying ongoing storage at his residence.
[T]he defendant cites two cases in which the court determined that the enhancement was not proper. In United States vs. Job, 851 F.3d, 889, 909, Ninth Circuit, 2017, there was no evidence that the defendant had ...

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