One Enhancement Reversed, One Affirmed in Drug Case

U.S. v. Henderson, 2015 WL 1059847 (3/11/15) (Okl.) (unpub'd) - A two-level enhancement under § 2D1.1(b)(1) for possessing a firearm during a drug offense was improper under U.S. v. Castro-Perez, 749 F.3d 1209 (10th Cir. 2014), where there was no physical relation between the weapon and the drug trafficking activity. The informant (CI) inquired about buying meth during the CI's purchase of a firearm. But the drug offense for which Mr. Henderson was convicted occurred months before. On the other hand, the enhancement under § 2D1.1(b)(12) for maintaining a residence for drug trafficking was supported by sufficient evidence. It didn't matter that no "tools of the trade" were found in the home. Agents witnessed "multiple parties" entering and exiting the residence in a manner consistent with drug trafficking [perhaps they skipped, rather than sauntered] and the CI bought drugs at or near the house 3 times. Although the "premises was used as a residence, the drug trafficking activities were frequent and substantial enough to warrant the enhancement." The district court was aware that it had to compare the amount of legitimate activities going on to the illegitimate ones.