[00:00:01] Speaker 04: We'll ask counsel for our second case to come up and get ready. [00:00:07] Speaker 04: It's United States versus Thaxton. [00:00:32] Speaker 04: Okay, this is the time for argument in the United States versus Thaxton, case 23-4196. [00:00:36] Speaker 04: Mr. Goddard. [00:00:37] Speaker 04: Good morning, Your Honors. [00:00:46] Speaker 00: Houston Goddard on behalf of Mr. Thaxton, I would ask to reserve three minutes for rebuttal. [00:00:52] Speaker 00: This case asks the question whether the premises enhancement is triggered or a defendant who was selling drugs and using his home to do so moves from one home to another. [00:01:03] Speaker 00: Here Mr. Thaxton was initially living in Waheewa where he was selling drugs and using his home to do so. [00:01:09] Speaker 00: There was no suggestion from the government, from probation, from the district court, [00:01:13] Speaker 00: that the premises enhancement would apply under those facts. [00:01:17] Speaker 00: What changed is that about a year and a half into selling drugs, Mr. Thaxton moved. [00:01:22] Speaker 00: He left Wahiwa and moved to Honolulu. [00:01:24] Speaker 00: And he kept doing exactly what he had been doing in Wahiwa, selling drugs and using his home to do so. [00:01:30] Speaker 00: The government's argument is that this move from Ohewa to Honolulu triggers the premises enhancement. [00:01:35] Speaker 00: That is not what the premises enhancement is meant to target. [00:01:40] Speaker 00: The premises enhancement targets sophisticated drug dealers who are maintaining establishments for the purpose of distributing or manufacturing drugs. [00:01:51] Speaker 00: Think meth labs, think grow houses, think trap houses. [00:01:55] Speaker 00: These are establishments that the dealers have [00:01:58] Speaker 00: establishments the dealers are maintaining for the purpose of manufacturing or distributing drugs. [00:02:03] Speaker 00: This enhancement is not targeted at unsophisticated drug dealers such as Mr. Thaxton who have drugs in their homes because they don't have any other premises. [00:02:13] Speaker 04: Let me ask you, I mean there would seem to be some question in a case in which somebody only has one residence and uses their house for [00:02:23] Speaker 04: living in the house and also to sell drugs but here he he took out essentially a second he moved to a different apartment and doesn't the record show that part of the reason for going there was to be closer to [00:02:40] Speaker 04: the drug operations in Waikiki Beach and to keep his son away from the drug dealing, which is possibly laudable, but reveals further the purpose of the apartment. [00:02:55] Speaker 00: Certainly, I think it shows that he had several reasons for making the move. [00:02:59] Speaker 00: The question the guideline asks is what is his purpose for maintaining the premises and his purpose for maintaining the apartment that he was living there. [00:03:06] Speaker 00: He was also using it to sell drugs as he had been in Wahiwa, but his purpose in maintaining the apartment in Honolulu is that that is where he lived. [00:03:13] Speaker 00: Can't he have two purposes? [00:03:15] Speaker 00: Well, the guideline speaks of the purpose, and the purpose for maintaining the premises is that that is where he was living. [00:03:24] Speaker 04: But it doesn't say the exclusive purpose, right? [00:03:26] Speaker 04: I mean, the commentary fills this in possibly a little bit more, but just even on the text of the guideline, you can do something for the purpose of A or B and it would be consistent to do both. [00:03:40] Speaker 00: Sure, and I think here that the history of the guideline is informative. [00:03:45] Speaker 00: Let's take a step back. [00:03:46] Speaker 00: We start with the Krakow Statute 21, United States Code, Section 856, which criminalizes the use or maintenance of premises for the manufacture or distribution of drugs. [00:03:57] Speaker 00: Congress comes along in 2010 in their Sentencing Act and explicitly references the Krakow Statute, but directs the Sentencing Commission to promulgate a guideline that targets just the maintenance [00:04:08] Speaker 00: of premises for the purpose of manufacturer distribution of drugs. [00:04:12] Speaker 00: And that is what the guideline does. [00:04:14] Speaker 00: The guideline itself, the text, not looking at the commentary, the text itself targets just the purpose. [00:04:18] Speaker 00: It drops the use and says the purpose of maintaining premises for the purpose of manufacturing and distributing drugs. [00:04:27] Speaker 00: What the commentary does is it expands, so from 856 to the guideline, we have narrowed the scope, and then the commentary reintroduces the concept of use and impermissibly expands the guideline back out beyond the text of the statute. [00:04:42] Speaker 00: So if we were looking to the statute, or pardon me, the guideline, the enhancement, the premises enhancement, 2D1.1B12 focuses just on the purpose for maintaining the premises. [00:04:54] Speaker 00: And here Mr. Thaxton's purpose in Wahiwa and then later in Honolulu is that that is his home. [00:05:01] Speaker 00: That's why he's maintaining his premise. [00:05:03] Speaker 00: He is using it to sell drugs. [00:05:04] Speaker 00: He's using it to sleep. [00:05:05] Speaker 00: He's using it to cook meals. [00:05:07] Speaker 00: He's using it to watch movies. [00:05:09] Speaker 00: But his purpose in maintaining his premise is that this is his home. [00:05:14] Speaker 04: Do we not look at all at the volume of the drug dealing? [00:05:16] Speaker 04: In other words, if he lived at the home but was running a hugely massive drug operation out of the same home, would your argument be the same? [00:05:26] Speaker 00: No, Your Honor, and this is where the District Court appropriately acknowledged that the premise enhancement applies in the residential context only rarely. [00:05:35] Speaker 00: Not never, but rarely. [00:05:38] Speaker 00: And that would be a case where someone is maintaining a premise for the purpose of manufacturing and distributing drugs and they happen to be living there. [00:05:44] Speaker 00: Think about someone who sets up a meth lab out in the desert and is cooking meth 18 hours a day and has a cot set up in the corner where they catch cat paps. [00:05:53] Speaker 00: That is where the defendant is living, but his purpose for maintaining that premise is to cook meth. [00:05:59] Speaker 00: Here, Mr. Thaxton is living in an apartment, has all of his day-to-day activities there, is close to his doctors, has his clothes there, has his toiletries there. [00:06:08] Speaker 00: And yes, he is using it to sell drugs. [00:06:11] Speaker 00: And in terms of the scope of his operation, the uncontested facts here are that he made one sale on June the 9th for a few hundred dollars worth of heroin. [00:06:21] Speaker 00: And two days later, there was a search where they uncovered substantial amounts of methamphetamine and heroin. [00:06:28] Speaker 00: But that's it. [00:06:29] Speaker 00: There is evidence that Mr. Thacksen was receiving shipments, but there is not a fact finding on whether their shipments are going to Honolulu or to Wahiwa. [00:06:38] Speaker 00: There is testimony, or not testimony, but evidence from a confidential informant that Mr. Thaxton was cutting the drugs in his Honolulu apartment. [00:06:50] Speaker 00: That was the veracity of the confidential informant was questioned by police counsel. [00:06:54] Speaker 04: What's the standard of review here? [00:06:56] Speaker 00: The standard of review here is de novo because this is a challenge to the interpretation of the guideline. [00:07:02] Speaker 04: Is that a challenge that was raised below? [00:07:06] Speaker 00: The challenge raised below was, defense counsel's argument was that the court needed to apply the frequency of use analysis, which the court did not do. [00:07:18] Speaker 00: And so here the argument is that the court [00:07:21] Speaker 00: This is the same argument and expanded, but the argument is that even if the commentary is permissible, is within the zone of ambiguity, and it was permissible for the district court to look to the commentary, the district court did not follow the commentary appropriately, did not interpret the commentary correctly. [00:07:37] Speaker 04: Okay, so there's a couple levels to this. [00:07:40] Speaker 04: One is that the commentary is an invalid interpretation of the guideline under Kaiser. [00:07:47] Speaker 04: I did not see that argument. [00:07:49] Speaker 04: It seems actually maybe to the opposite. [00:07:54] Speaker 04: The defense counsel was embracing the commentary and trying to argue under the commentary. [00:07:58] Speaker 00: That is correct. [00:08:00] Speaker 00: That argument was not made to the district court. [00:08:02] Speaker 00: Okay. [00:08:03] Speaker 04: Is that the argument you're making here? [00:08:04] Speaker 00: It is one of the arguments I'm making here, yes. [00:08:06] Speaker 04: Okay. [00:08:06] Speaker 04: So that would be reviewed for plain error? [00:08:15] Speaker 00: I believe it would be de novo, Your Honor, and I could be corrected, but I believe that this is a challenge to the interpretation of the guidelines. [00:08:23] Speaker 00: The government has not, if I'm calling correctly, the government has not suggested this would be plain error review. [00:08:29] Speaker 04: no but we're asking we have a recent opinion where this came up hack it where there was a challenge raised on appeal to the interpretation of the guideline in the commentary in the court held that it hadn't been preserved and so reviewed it for plain error involving a loss enhancement so this seems somewhat analogous but you have other arguments based on the [00:08:53] Speaker 04: Face of the commentary itself, I understand, to be saying, well, if you look at the commentary, taking it for what it's worth, you still think you win. [00:09:00] Speaker 04: Is that actually a legal issue, though, or is that more just a district court's application of the guideline that we would review more favorably? [00:09:08] Speaker 00: Well, it's a question of whether the district court appropriately understood and applied the commentary, and I would argue they did not. [00:09:15] Speaker 00: But even if this court were to say that the guideline is ambiguous, the commentary is within the zone of ambiguity, so we're just looking at how the district court applied it, here the factual record is [00:09:28] Speaker 00: It's a mess. [00:09:30] Speaker 00: What we have is a pre-sentence report that says Mr. Thaxton lives in Wahiwa and never left Wahiwa, and he set up the apartment in Honolulu solely for the purposes of selling drugs, and he never moved there. [00:09:41] Speaker 00: That's what the pre-sentence report says. [00:09:43] Speaker 00: We get to the sentencing hearing. [00:09:44] Speaker 00: Defense counsel says, I'd like to proffer that actually Mr. Thaxton moved to Honolulu and lived there full-time. [00:09:51] Speaker 00: Government says, no problem, understood. [00:09:53] Speaker 00: Mr. Thaxton lived there full-time, not in dispute. [00:09:55] Speaker 00: And then the court engages the parties under this understanding that Mr. Thaxton is living in Honolulu. [00:10:00] Speaker 00: That's very clear from the record. [00:10:02] Speaker 00: And then at the very end, the court, without making any factual findings, applies the enhancement and then says, I'm adopting the pre-sentence report and the enhancement is based on those findings. [00:10:13] Speaker 00: And this is completely contradictory. [00:10:15] Speaker 00: So it's really sort of impossible to understand what this enhancement is based on. [00:10:21] Speaker 04: So... Did he give up his first residence or your position that he just wasn't using it? [00:10:26] Speaker 00: His son was living there. [00:10:27] Speaker 04: Okay, but it was still his property. [00:10:29] Speaker 00: It was his property. [00:10:29] Speaker 00: His son was living there. [00:10:31] Speaker 00: And he was living in the apartment in Honolulu. [00:10:34] Speaker 00: That was the proffer made and accepted in district court. [00:10:37] Speaker 04: Right, so I mean, again, I think there could be questions, maybe more difficult ones, where somebody only has one residence, but what about in the case where the person takes out a second residence? [00:10:48] Speaker 00: Well, I think this is a, you know, a not unusual situation where a parent has a home that he owns and uses himself and a home that he is providing for an adult child. [00:10:58] Speaker 04: I don't think that this... How old was the child at the time? [00:11:00] Speaker 00: I believe he was in his early 20s. [00:11:02] Speaker 00: I wouldn't swear for that, to my understanding. [00:11:06] Speaker 00: So this is not a situation where I don't think this is the same situation as where someone just happens to have two homes and uses them interchangeably. [00:11:14] Speaker 00: The facts here are that the facts as accepted before the district court of Mr. Thackson had his own home in Honolulu and he provided a home for son in Waihewa. [00:11:24] Speaker 04: Taking you over your time. [00:11:24] Speaker 04: So why don't we put three minutes up when you come back and we'll hear from the government. [00:11:28] Speaker 00: Thank you. [00:11:39] Speaker 02: Good morning, Your Honors. [00:11:42] Speaker 02: May it please the court, Lauren Nakamura for the United States. [00:11:45] Speaker 02: This essentially is a sentencing appeal where guns and drugs were found in the same drawer of an apartment used by the defendant to distribute drugs, one that he rented specifically to keep his dealings separate from his son. [00:12:00] Speaker 02: He admits that himself. [00:12:02] Speaker 02: Having properly determined the guideline range of 210 to 262 months, the court also applied a downward departure [00:12:10] Speaker 02: as applied the government's downward departure motion and weighed the 3553A factors and ultimately sentenced the defendant to 108 months, little more than half of the bottom of his original guideline range. [00:12:24] Speaker 02: It started off with a base offense level which was determined by an undisputed amount, quantity of drugs. [00:12:31] Speaker 02: There's no abuse of discretion there. [00:12:33] Speaker 02: Next, the court analyzed whether the two points should be added because of a firearm. [00:12:40] Speaker 02: Once again, the settled and undisputed facts are you can't get to the drugs without also getting to the gun. [00:12:46] Speaker 02: Clearly, the two-level enhancement was supported and not an abuse of discretion. [00:12:50] Speaker 02: Having stated its findings regarding that firearm enhancement, safety valve and zero-point offender status are legally unavailable to the defendant, and to suggest that this court should remand for the district court to explicitly state that these reductions don't apply, [00:13:06] Speaker 02: is essentially asking this court to elevate form over substance, especially in light of a sentencing transcript which makes clear the intent of the district court, as well as in light of the district court's subsequent order on his release pending bail status, which clearly lays out [00:13:26] Speaker 02: that the district court did not find any substantial question of law or fact as to the fire arm or premises enhancement. [00:13:35] Speaker 02: The intent of the premises enhancement is driven by the desire to punish those with a more established or sophisticated operation to distribute drugs. [00:13:45] Speaker 02: And this court, along with several other circuits, has determined that you can't also use a home [00:13:52] Speaker 02: as essentially a place of business for drug dealing, which is why the defendants aren't protected from the enhancement merely by the fact that they also sleep there. [00:14:02] Speaker 02: The courts conduct an analysis to essentially determine is this a normal residence with occasional or periodic episodic dealing, or is this being used as a place of business, or is this a combination of the two? [00:14:15] Speaker 02: Here, the court looked at the home in Wahiawa, and also the facts supporting that he was essentially conducting a business elsewhere, mostly for the purpose of protecting his son, along with the apartment's location near to a customer base, as well as near places where drug dealing is often commonly found. [00:14:42] Speaker 03: You would agree that the district court relied on the commentary? [00:14:48] Speaker 03: Yes. [00:14:48] Speaker 03: The district court did not do a Kaiser analysis, in other words, finding that the guideline was ambiguous, et cetera, et cetera. [00:14:59] Speaker 03: Do you think that we can do that in the first instance? [00:15:04] Speaker 03: First of all, was it error? [00:15:05] Speaker 03: And two, can we correct the error by conducting that analysis in the first instance? [00:15:14] Speaker 02: I think this court can determine whether or not the commentary or the guideline itself, the language of the guideline itself is ambiguous and then subsequently but the, I guess. [00:15:28] Speaker 03: Do you think that the guideline is ambiguous? [00:15:30] Speaker 02: I don't believe so at all. [00:15:31] Speaker 02: I mean, even if you look at the language of the guideline itself, it says the purpose of and even though it's stated in the singular, it subsequently is followed by the manufacture or distribution. [00:15:43] Speaker 02: which is actually two different purposes. [00:15:45] Speaker 02: So I don't believe that the language is ambiguous or unambiguous to the point where that reliance on the commentary is not proper. [00:16:00] Speaker 03: Well, you have to find that it's ambiguous to rely on the commentary, and you're saying it's not. [00:16:04] Speaker 02: Well, I'm sorry. [00:16:07] Speaker 02: I didn't articulate that well. [00:16:09] Speaker 02: I'm saying that because there's a singular, [00:16:12] Speaker 02: purpose and a multiple and followed by dual purposes, that would make it ambiguous, which is why reliance on the commentary is proper here, as well as common, it is a process that the courts have regularly relied upon when applying the premises enhancement. [00:16:33] Speaker 04: It seems that imagine your opposing counsel will say, you know, manufacturing or distributing are both examples of unlawful drug behavior. [00:16:41] Speaker 04: That's in distinction or opposition to what would be normal residential behavior. [00:16:45] Speaker 04: And I think the position being argued is that [00:16:50] Speaker 04: this provision is possibly ambiguous in terms of what it means is that you need to basically go and set up a premises specifically for drugs and really not much else other than manufacturing or distributing drugs or whether you can have a premises that shares some lawful and some unlawful activities. [00:17:12] Speaker 02: Yes, which is why the court below also engaged in the question and specifically asked counsel about whether or not you can have multipurposes or a singular purpose, which is where just, and also in the, I believe in the seventh and the 10th Circuit, the court has noted specifically that a purpose to insulate a, or to read the, [00:17:39] Speaker 02: the guideline to mean that just because you have drugs and you also reside there would effectively eviscerate the purpose of the guideline itself because it would effectively insulate anyone who lives and also distributes or manufactures drugs out of their home. [00:17:57] Speaker 04: I mean here he had two residences. [00:17:59] Speaker 04: Does the government commonly pursue this enhancement when somebody has only one? [00:18:06] Speaker 02: That I am [00:18:08] Speaker 02: I don't believe that that is true. [00:18:10] Speaker 02: I think you can, and there is case law that suggests that even in situations where there's a singular home, the government has also perceived the same enhancement. [00:18:21] Speaker 04: So what is the relevance, if any, of the fact that he had two residences here? [00:18:24] Speaker 02: I believe the relevance is exactly what you pointed out earlier during the earlier argument, in that he [00:18:36] Speaker 02: had a home and it was being used at some point for him to reside in, but then specifically moved out of that home, particularly to be closer to his drug dealing business. [00:18:49] Speaker 02: and also used to cut drugs there and also had dealings out of that apartment. [00:18:55] Speaker 02: So in that sense, I think it's very clear that he maintained that apartment. [00:19:00] Speaker 02: Yes, he has also other purposes for it. [00:19:03] Speaker 02: He resides there. [00:19:04] Speaker 02: He sleeps there. [00:19:04] Speaker 02: It's close to his doctor's. [00:19:07] Speaker 02: But part of the purpose of maintaining that apartment was also to enhance his ability to distribute drugs to customers very close by and also to particularly to protect his fund from the criminal liability and exposure to drug distribution, which he was conducting, which he didn't want to do at his home in Wahiawa. [00:19:28] Speaker 01: So Council, is it your position then that any time any sort of drug activity happens in someone's home or out of someone's home, [00:19:37] Speaker 01: this should apply? [00:19:39] Speaker 02: No, I don't believe so, which is why the commentary suggests that the court engage in a frequency analysis to determine whether or not this home is actually being used more as a home with episodic dealing versus a home that is also being used as a place of business to distribute drugs. [00:20:02] Speaker 01: How is the frequency analysis [00:20:05] Speaker 01: out here? [00:20:06] Speaker 01: I mean, was it very frequent? [00:20:09] Speaker 01: Was it not so frequent? [00:20:11] Speaker 01: And what is frequent enough? [00:20:15] Speaker 02: I think that is a question that would be fact specific. [00:20:21] Speaker 02: And in this case, the amount of drugs found in the home, as well as the guns, as well as whatever, what the CI reported, which was corroborated subsequently in the search, all established that there was frequent drug dealing out of his home. [00:20:38] Speaker 02: And in that case, just because he has a room there and sleeps there [00:20:43] Speaker 02: convenient for him to get to his doctor's appointments doesn't mean that he also didn't use it specifically to deal drugs out of. [00:20:51] Speaker 01: Do you have a number for me in terms of the frequency? [00:20:54] Speaker 01: You say frequent, I don't know if that means five, 500, two? [00:20:57] Speaker 02: I don't believe that there is a specific number that the court can reach, which is why it's a factual analysis, case specific, that this court can review under abusive discretion. [00:21:17] Speaker 02: and I think if the court has no further questions. [00:21:23] Speaker 04: Thank you very much. [00:21:26] Speaker 04: Okay, Mr. Goddard, we'll hear from you. [00:21:32] Speaker 00: Thank you, Your Honor. [00:21:33] Speaker 00: Just very briefly at the outset, opposing counsel spoke about the lower court's decision in Mr. Thaxton's application for bail pending appeal. [00:21:42] Speaker 00: That is not properly before this court. [00:21:45] Speaker 00: The district court was determining Mr. Thaxton's bail status, but it cannot expand the record in doing so, or essentially issue an advisory opinion. [00:21:53] Speaker 00: Turning to the record, as it has to do with the premises enhancement, government counsel spoke as though the information provided by the confidential informant in this case is true, and did so in briefing as well, referring to it as, I believe, corroborated [00:22:11] Speaker 00: And that's just not the case. [00:22:13] Speaker 00: Mr. Thaxton specifically contested the confidential informants information for the district court, both in terms of possession of the gun, which is not being challenged here, but also in terms of the confidential performance understanding of his business operation. [00:22:27] Speaker 00: Government counsel says that the confidential informants [00:22:30] Speaker 00: information was corroborated, it was not. [00:22:33] Speaker 00: The confidential informant said that there would be, the bulk of the drugs would be at the apartment in Honolulu, and a smaller amount were brought to Waheewa for cutting. [00:22:42] Speaker 00: That's not what law enforcement found when they executed the search warrant on both houses. [00:22:47] Speaker 04: There was a fair amount of drugs, plus $46,000 in cash, an indicia of drug distribution, no? [00:22:53] Speaker 00: Your Honor, I'm not disputing that this was a significant amount of drugs. [00:22:55] Speaker 00: I'm saying that the confidential informants [00:22:59] Speaker 00: understanding of the operation that she provided to law enforcement was that the bulk of the drugs would be in Honolulu. [00:23:05] Speaker 00: That's where he kept the kilograms and kilograms of drugs would be in Honolulu. [00:23:09] Speaker 00: I apologize, in Wahiuwa. [00:23:11] Speaker 00: And then he would bring smaller amounts to Honolulu to the apartment to cut them and prepare them for sale and then sell them. [00:23:16] Speaker 00: And what the law enforcement found is that there's nothing in Waheewa but a bulk of drugs in Honolulu. [00:23:21] Speaker 00: So it doesn't match up. [00:23:23] Speaker 00: My point is that the veracity of the confidential format was at question for the district court for good reason, and the district court made no determinations here. [00:23:32] Speaker 01: Council, I just want to make sure I understood. [00:23:34] Speaker 01: Sure. [00:23:35] Speaker 01: So is Honolulu then the drug house? [00:23:38] Speaker 00: Honolulu is where they found the drugs, but we don't know how long they were there. [00:23:42] Speaker 00: That's the problem here, and the government council talks about how there was multiple drug sales, all this stuff. [00:23:47] Speaker 00: That's not supported in the record. [00:23:48] Speaker 00: We have one sale. [00:23:50] Speaker 00: We know Mr. Thaxton was selling. [00:23:51] Speaker 00: We don't know where. [00:23:53] Speaker 00: And the question for the premises enhancement is not, is Mr. Thaxton selling drugs? [00:23:57] Speaker 00: Is Mr. Thaxton selling a lot of drugs? [00:23:58] Speaker 00: Is Mr. Thaxton selling drugs frequently? [00:24:00] Speaker 00: The question is, is he doing those things in the Honolulu apartment? [00:24:04] Speaker 00: And the record just doesn't tell us that. [00:24:05] Speaker 00: We have one sale, and we know they were drugs there on one day. [00:24:09] Speaker 00: We don't know how long they've been there. [00:24:10] Speaker 00: We don't know anything beyond that. [00:24:12] Speaker 00: That's what the record establishes in this case. [00:24:15] Speaker 01: And what about his testimony about, you know, moving because he wanted to keep his son away from drugs, all of that? [00:24:20] Speaker 01: I mean, the inference is, you know, I do this outside of my home or from my home because otherwise, why would it matter that his son was living in the other home with him? [00:24:31] Speaker 00: Well, that's one inference. [00:24:32] Speaker 00: I think another inference is I'm a drug dealer. [00:24:34] Speaker 00: There are people who might want to harm me. [00:24:35] Speaker 00: There are people who might want to come after me. [00:24:37] Speaker 00: And if I'm living with my son, that puts my son in danger. [00:24:42] Speaker 00: I think there is just physical danger inherent in the business of drug dealing. [00:24:47] Speaker 00: Mr. Thaxton laudably tried to separate him. [00:24:51] Speaker 00: He should have stopped selling the drugs, but he laudably tried to remove that from his son. [00:24:55] Speaker 00: And to tag him with a higher sentence for doing that, that's not what this enhancement is meant to do here. [00:25:01] Speaker 00: And I wanted to speak just briefly on this question of purpose and use. [00:25:09] Speaker 00: We focused a lot and the district focused a lot on Mr. Thaxton's use of departments and that makes sense when we're looking to purpose. [00:25:14] Speaker 00: But we need to keep purpose as the one and only ultimate assessment. [00:25:18] Speaker 00: That is what the guideline says. [00:25:19] Speaker 00: What is Mr. Thaxton's purpose? [00:25:21] Speaker 00: It makes total sense when you're assessing purpose to look to how someone is using the apartment. [00:25:25] Speaker 00: But that has to be the first step. [00:25:27] Speaker 00: How are they using the apartment? [00:25:28] Speaker 00: Okay, what does that tell us about how they are, what their purpose in maintaining the premises is? [00:25:33] Speaker 00: What the commentary does that goes beyond the text of the enhancement is it says that you can look to just the use. [00:25:39] Speaker 00: You can establish that it's a primary principal use and stop there. [00:25:43] Speaker 00: And that's what the district court did here. [00:25:45] Speaker 00: All of its questions were about, is this a primary principal use? [00:25:48] Speaker 00: Is this a primary principal use? [00:25:50] Speaker 00: Yes, okay, game over, enhancement applied. [00:25:53] Speaker 00: That is not how this enhancement works, from the clear text of the guideline itself. [00:26:00] Speaker 04: We'd like to go a little over, so I want to thank you very much for your presentation this morning. [00:26:03] Speaker 04: We'll thank Ms. [00:26:04] Speaker 04: Nakamura for her presentation, and this matter is submitted. [00:26:07] Speaker 04: Thank you.