USA v. Paul Winfield
Filing
Filed opinion of the court PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge and Diane S. Sykes, Circuit Judge. [6812290-1] [6812290] [16-1047, 16-1048]
Case: 16-1047
Document: 28
Filed: 01/18/2017
Pages: 5
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐1047 & 16‐1048
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
PAUL WINFIELD,
Defendant‐Appellee.
____________________
Appeals from the United States District Court for the
Western District of Wisconsin.
Nos. 01‐cr‐9‐bbc‐3 & 3:15CR00081‐001 — Barbara B. Crabb, Judge.
____________________
ARGUED DECEMBER 13, 2016 — DECIDED JANUARY 18, 2017
____________________
Before POSNER, KANNE, and SYKES, Circuit Judges.
PER CURIAM. These consolidated appeals raise a single is‐
sue: whether the district court erred by adjusting Paul Win‐
field’s offense level upwards based on the court’s finding
that Winfield “maintained” his apartment for distributing
controlled substances, see U.S.S.G. § 2D1.1(b)(12). Winfield
argues that the guideline doesn’t apply here because drug
dealing was not among his “primary or principal” uses for
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Nos. 16‐1047 & 16‐1048
the apartment, see U.S.S.G. § 2D1.1 cmt. n.17. We disagree
and affirm the district court’s judgments.
A police informant bought heroin and methamphetamine
from Winfield during four controlled buys conducted over a
twelve‐week period. For the buys, all of which occurred at
Winfield’s apartment, the informant wore a hidden video
camera. The camera recorded little useful video, but it did
clearly capture the informant’s conversations with Winfield.
During the first controlled buy, the informant purchased
3 grams of heroin and reported seeing “a few ounces” of
suspected heroin that Winfield had retrieved from a plastic
container hidden behind a television.
A week later, Winfield met the informant in a parking lot
and asked the informant to follow him home, explaining that
he needed to make a “drop” on the way. Winfield then sold
the informant 3½ grams of heroin and gave the informant a
sample of a substance he said contained ecstasy (later analy‐
sis showed that it actually contained methamphetamine).
The video of this meeting shows two ounces of suspected
heroin, a digital scale, and cash on a kitchen counter.
The third buy took place the following month when Win‐
field sold the informant another 3½ grams of heroin and a
gram of “ecstasy” (again, it actually contained methamphet‐
amine). The informant reported seeing about two ounces of
heroin on a plate in the kitchen and an ounce of “ecstasy”
hidden in an aerosol can with a hidden compartment.
Over a month later, Winfield sold the informant 2 grams
of heroin and 5 grams of a substance containing metham‐
phetamine (not ecstasy, as promised). Winfield retrieved the
Case: 16-1047
Document: 28
Nos. 16‐1047 & 16‐1048
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Pages: 5
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drugs from the aerosol can, and the informant said he saw
about 60 grams of heroin and 30 grams of “ecstasy.”
Three days after this last buy, the police obtained a war‐
rant and searched Winfield’s apartment. They found almost
$3000 in a closet, and a gram of heroin and drug parapherna‐
lia in Winfield’s girlfriend’s purse. In the garage, stashed in
the trunk of Winfield’s car (in a brake‐fluid canister that had
a hidden compartment), the police also found 27 grams of
methamphetamine and 38 grams of heroin.
During a post‐arrest interview, Winfield admitted that
the police had not found more drugs in the apartment be‐
cause “[h]e had flushed anything he had down the toilet
when the SWAT team was approaching.”
A grand jury charged Winfield with distributing heroin
and methamphetamine, possessing both drugs with intent to
distribute, and maintaining a place for the purpose of dis‐
tributing controlled substances, see 21 U.S.C. §§ 841(a)(1),
856(a)(1). Winfield pleaded guilty to one count of distrib‐
uting heroin, and the government dropped the other counts.
At sentencing, a probation officer recommended that
Winfield receive a two‐level upward adjustment because he
“maintained a premises for the purpose of manufacturing or
distributing a controlled substance,” U.S.S.G. § 2D1.1(b)(12).
The officer explained that this “stash house” guideline was
appropriate because each of the four controlled buys had oc‐
curred at Winfield’s apartment, and in his garage the police
had found drugs. Winfield objected, arguing that this evi‐
dence did not support an inference that drug dealing was a
“primary or principal” use for the apartment, as the guide‐
line requires, see U.S.S.G. § 2D1.1 cmt. n.17.
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The district court overruled Winfield’s objections and
applied the adjustment. The court explained that because the
informant saw additional quantities of drugs during the four
controlled buys, it was reasonable to believe that a buyer
easily could arrange to buy drugs from Winfield at his
apartment. And since Winfield at the time of his arrest pri‐
marily had been living off the proceeds of drug sales, the
court reasoned, he must have been “making regular, fre‐
quent sales of drugs from his home.” From this evidence, the
court concluded that drug distribution was one of Winfield’s
primary uses for the apartment and that this warranted ap‐
plication of the stash‐house guideline. The court then calcu‐
lated an advisory range of 63–78 months’ imprisonment.
The court sentenced Winfield below the guidelines range
to 55 months. At the same time the court imposed a concur‐
rent 27‐month sentence because Winfield’s conduct violated
his supervised release for an earlier drug‐trafficking convic‐
tion. (This concurrent sentence is the basis of appeal number
16‐1047, but Winfield does not challenge the revocation of
his supervised release.)
On appeal Winfield challenges only the district court’s
decision to impose the “stash house” guideline. He says the
guideline was unwarranted because “this case is not the sort
of multi‐kilogram, long‐going storage case that supports a
premises enhancement.”
Winfield reads too much into the guideline. Nothing in
the text of § 2D1.1(b)(12) or its application note requires a
sentencing court to find that the defendant stored multiple
kilograms of drugs over an extended period of time; rather,
the court needs to find that a drug‐related activity was just
one of the defendant’s “primary or principal” uses for the
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premises—as opposed to an “incidental or collateral” use.
U.S.S.G. § 2D1.1 cmt. n.17. “In making this determination,
the court should consider how frequently the premises was
used by the defendant for manufacturing or distributing a
controlled substance and how frequently the premises was
used by the defendant for lawful purposes.” Id.
The record supports the district court’s conclusion that
Winfield’s drug‐related uses for his apartment were not
merely “incidental” to his residence there. The police seized
heroin and methamphetamine from Winfield’s garage, and
would have found drugs in the apartment itself had Win‐
field not—as he later admitted to police—“flushed anything
he had down the toilet when the SWAT team was approach‐
ing.” Moreover, in the twelve weeks before the raid, the in‐
formant bought drugs from Winfield at his apartment four
times and spotted additional drugs and drug paraphernalia
during each transaction. And given that Winfield at the time
of his arrest was “primarily living off proceeds from drug
sales,” it follows, as the district court reasonably concluded,
that he must have stored or sold additional quantities of
drugs at his apartment than the relatively modest amounts
recovered by police.
Winfield maintains that he used the apartment primarily
as a place to live, so any drug distribution was “‘incidental
or collateral’ to his predominantly lawful uses of his home.”
But the guideline is appropriate when a defendant uses his
home for drug‐related purposes. See United States v. Sanchez,
810 F.3d 494, 495–97 (7th Cir. 2016); United States v. Evans,
826 F.3d 934, 937–39 (7th Cir. 2016); United States v. Flores‐
Olague, 717 F.3d 526, 530–34 (7th Cir. 2013).
AFFIRMED.
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