United States v. Marcus Ford ( 2022 )

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 dis-
tributing 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 dis-
covered 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 prescrip-
tion drug bottles, all belonging to Ford, as well as photo-
graphs 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: distrib-
uting methamphetamine and possessing methamphetamine
with intent to distribute it. Ford pled guilty, stipulating that
he distributed 79.9 grams of methamphetamine to a confiden-
tial 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 connec-
tion 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 maintain-
ing 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 ev-
idence 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 ulti-
mate 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 lev-
els in drug cases “if a dangerous weapon (including a firearm)
was possessed.” § 2D1.1(b)(1). The commentary for this pro-
vision 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 gov-
ernment 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 bur-
den shifts to the defendant to show that it was clearly improb-
able 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 de-
fendant 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 gov-
ernment 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 cir-
cumstantial 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 de-
fendant had exclusive control of the property where officers
discovered the contraband, the court can infer that the de-
fendant 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 con-
nection’ 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 com-
ment shows that the court erred by collapsing two distinct is-
sues, possession of the firearm and connection to the drug of-
fenses. In particular, he argues that the court erred by lower-
ing 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 preponder-
ance 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 prepon-
derance 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 govern-
ment to the proper burden of proof, the evidence simply did
not support a finding of constructive possession of the fire-
arm. 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 bed-
room floor does not support an inference that he had a con-
nection to or exercised control over the weapon. Ford points
to evidence that he believes undercuts that inference, includ-
ing that the source did not mention ever having seen him with
a gun, despite purchasing drugs from him for years, and evi-
dence 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 govern-
ment can establish a substantial connection between the de-
fendant 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 pos-
sessed 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 bed-
room’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 con-
ducted 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 lev-
els 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 in-
clude “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 ob-
tain 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 ex-
ercise 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 activ-
ities 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 pos-
sessory interest can exercise control over a premises as a mat-
ter 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 di-
rected 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 ex-
ercised 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, Nichol-
son 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 Ni-
cholson 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 compel-
ling evidence. For example, in United States v. Sanchez we af-
firmed 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 enhance-
ment 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 bed-
room 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 be-
fore the police raid, and primarily lived off proceeds from his
drug sales).
We recognize that it can be difficult to define the bounda-
ries of the drug premises enhancement. Consistent with the
Guideline commentary on § 2D1.1(b)(12), we encourage dis-
trict 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.