[00:00:00] Speaker 02:
Can I excuse counsel?

[00:00:03] Speaker 02:
It doesn't look like either of you backed later.

[00:00:06] Speaker 02:
So we'll turn to our next case now.

[00:00:08] Speaker 02:
23-54.

[00:00:09] Speaker 02:
23-5084, United States versus Day.

[00:00:16] Speaker 02:
Mr. Bolling.

[00:00:52] Speaker 04:
You may begin.

[00:00:53] Speaker 04:
May it please the court, my name is John Bolan of the firm of Bolan and Schall, and I appear today on behalf of appellant and defendant Hatcher Day.

[00:01:05] Speaker 04:
Mr. Day raises only one argument in his appeal, which is that the district court erred in applying a sentence enhancement of two levels for maintaining a premises for purposes of distributing controlled substances.

[00:01:21] Speaker 04:
Now, in our brief, we present at least four factors that the district court should have considered, beginning with the two that are in the statute themselves.

[00:01:32] Speaker 04:
Perhaps most importantly, as the court considers this case, would be the Morgan case, which is cited in our opening brief, the Morgan case's description of what Congress did and did not do with regard to

[00:01:49] Speaker 04:
the similar statute in maintaining versus mere possession.

[00:01:55] Speaker 04:
The court there described that the Congress could have chosen to outlaw merely possessing a property for the purposes of distributing or manufacturing controlled substances.

[00:02:10] Speaker 04:
But it didn't.

[00:02:10] Speaker 04:
It used the word maintain instead.

[00:02:12] Speaker 04:
And so did the Sentencing Commission.

[00:02:15] Speaker 04:
And the word maintain connotes something much more than mere possession.

[00:02:19] Speaker 04:
whether that's legal possession or constructive possession.

[00:02:24] Speaker 04:
It connotes a certain degree of continuity and duration of possession.

[00:02:30] Speaker 04:
And all of those factors were completely disregarded by the district court in this case.

[00:02:37] Speaker 02:
How are we supposed to review the judge's decision?

[00:02:52] Speaker 02:
the judge's decision, and we don't necessarily require the judge to go through all that evidence in reaching his conclusion.

[00:03:02] Speaker 04:
Your Honor, the standard review here is de novo, but of course, we are not challenging any factual findings made by the trial court.

[00:03:10] Speaker 04:
We are pointing out, however, that the trial court failed to make factual findings that are sufficient to support the application of this enhancement.

[00:03:20] Speaker 02:
So you're saying it's de novo review, but insofar as the law depends on the facts, which is often the case, we cannot consider any fact that the judge failed to find, as opposed to reviewing the record in the light most favorable to the district court's decision.

[00:03:40] Speaker 04:
Well, the court does have to defer to factual findings, but there are some areas

[00:03:47] Speaker 04:
where no findings were made and where there would have been conflicting evidence, as we've noted in our footnote.

[00:03:56] Speaker 02:
That's why I asked about the standard review at the outset.

[00:04:01] Speaker 02:
When that happens, don't we review the record, the factual record, in the light most favorable to the determination by the district judge?

[00:04:13] Speaker 02:
We assume that the judge made all the findings that, even though not expressed, that the judge made all the findings that support necessary to support the ruling.

[00:04:26] Speaker 02:
Am I wrong about the standard of review?

[00:04:30] Speaker 04:
I don't think that that is the standard of review, Your Honor, because when there appear to be factual issues that we're not

[00:04:37] Speaker 04:
but needed to be resolved by the trial court in the past, then this court has remanded for the trial court to resolve those factual issues.

[00:04:47] Speaker 04:
At the very last page of our brief, in the conclusion we've cited, I believe it's the Williams case that stands for that proposition.

[00:04:56] Speaker 01:
Well, could you address the Verner case?

[00:04:59] Speaker 01:
That to me seems to be the most difficult case for you in that in that case,

[00:05:06] Speaker 01:
We found that the defendant did maintain a premise, which primary use was for these drug activities.

[00:05:15] Speaker 01:
And it was his mother's home.

[00:05:17] Speaker 01:
And he had a bedroom, his childhood bedroom, in his mother's home that he didn't live in, but he used for his activities.

[00:05:28] Speaker 01:
And we said that was maintaining a premise.

[00:05:31] Speaker 01:
So why wouldn't renting an Airbnb and using it

[00:05:37] Speaker 01:
for both to possess and sell fentanyl in this case.

[00:05:45] Speaker 01:
Why isn't that even stronger evidence of maintaining the premise than the Verner case?

[00:05:52] Speaker 04:
Yes, for several reasons, Your Honor.

[00:05:54] Speaker 04:
Number one, that Verner's case deals with the so-called crack house statute.

[00:06:01] Speaker 04:
And that statute does not expressly require a district court

[00:06:05] Speaker 04:
to consider the legal possessory interest of the defendant as the guidelines do.

[00:06:11] Speaker 01:
The note to the guidelines?

[00:06:13] Speaker 04:
Yes, the application note 17.

[00:06:14] Speaker 01:
The application note, yeah.

[00:06:16] Speaker 04:
Yes, Your Honor.

[00:06:17] Speaker 04:
I'm sorry about that.

[00:06:19] Speaker 04:
It requires consideration of whether the defendant has a possessory interest, and it also requires consideration of whether the defendant is able to control access to and activities at the property.

[00:06:32] Speaker 01:
But that is some of the same factors they look at, isn't it, under the statute?

[00:06:39] Speaker 04:
It is similar.

[00:06:40] Speaker 04:
I believe that under the statute there should be, and there often is, consideration of legal possessory interest or constructive possessory interest.

[00:06:49] Speaker 04:
And I would submit under Verner's that the court decided that there was some constructive possessory interest here.

[00:06:56] Speaker 04:
In the Verner's case, this young man was using his former childhood bedroom, it appears, to store his things.

[00:07:07] Speaker 04:
He still listed the house as his address for many purposes.

[00:07:12] Speaker 04:
He still had a key to the home.

[00:07:13] Speaker 04:
And the mother let him use the room how he liked and come and go.

[00:07:17] Speaker 04:
He had a substantial connection.

[00:07:20] Speaker 04:
which was the test that was employed in Vernors, whether the defendant has a substantial connection to the premises and is more than a mere casual visitor.

[00:07:31] Speaker 04:
But here, Mr. Day was, at most, the most the evidence can show is that he was at his Airbnb.

[00:07:41] Speaker 04:
I say his, but it was actually rented by another person at his direction.

[00:07:45] Speaker 04:
And he was there for at most five days.

[00:07:48] Speaker 04:
His time there was not continuous.

[00:07:51] Speaker 04:
The district court found itself that he went back and forth between Oklahoma and Arizona.

[00:07:57] Speaker 04:
And it's unclear whether he left or in that five-day period.

[00:08:02] Speaker 04:
And he had no other connection as Vernors did to Vernors' room.

[00:08:07] Speaker 04:
He didn't have another connection aside from staying there temporarily, just like a hotel room.

[00:08:13] Speaker 04:
And so I think that Verner's is distinguishable on its facts.

[00:08:16] Speaker 02:
So you can't use a hotel room as a place of dealing drugs?

[00:08:21] Speaker 02:
Is that what you're saying?

[00:08:23] Speaker 02:
At least, if you do, you're not guilty of maintaining premises?

[00:08:27] Speaker 04:
Yes, Your Honor.

[00:08:28] Speaker 04:
I think... You have authority for that?

[00:08:31] Speaker 04:
I haven't found a case in this circuit that has addressed a hotel room, but... What about other circuits?

[00:08:40] Speaker 04:
I haven't found one in another circuit.

[00:08:42] Speaker 04:
I don't believe that we've cited one.

[00:08:45] Speaker 04:
But analyzing the factors that are at issue here, a person in a hotel room cannot exclude others from the hotel room.

[00:08:52] Speaker 04:
There are rights.

[00:08:54] Speaker 02:
There are some people who have rights to it.

[00:08:56] Speaker 02:
Yes.

[00:08:56] Speaker 02:
That's true of a lot of places.

[00:08:59] Speaker 02:
If you rent an apartment, even if you live there forever, the landlord has some rights of access.

[00:09:05] Speaker 04:
Yes, Your Honor.

[00:09:06] Speaker 04:
They're more limited, I believe, than a hotel room or an Airbnb, as we've discussed in our brief.

[00:09:12] Speaker 02:
But the exclusive possession is not required to maintain a premises.

[00:09:17] Speaker 04:
No, it is not determinative nor necessarily required.

[00:09:22] Speaker 04:
The court must analyze all of these factors together.

[00:09:24] Speaker 04:
And in Mr. Day's case, he doesn't have a legal possessory interest.

[00:09:29] Speaker 02:
He does not have the ability to... So if he just used an abandoned premise, an abandoned house to deal drugs, then he couldn't be guilty of maintaining the premise because he has no legal right to be there?

[00:09:43] Speaker 04:
That is a factor weighing in favor of a determination that he did not maintain the premises.

[00:09:48] Speaker 04:
The court would also look at constructive possession and continuity and duration and what else he did with the property, such as fixing it up, making it a place that he could live better, you know, those kinds of considerations.

[00:10:02] Speaker 02:
Where would you draw the line?

[00:10:05] Speaker 02:
Are you saying if you're going to maintain the premises, it's got to be for two weeks and only one other person can have access to it?

[00:10:13] Speaker 02:
Where do you draw the line?

[00:10:15] Speaker 02:
The word maintain suggests some continuity, not a one-off, not a casual visitor.

[00:10:24] Speaker 02:
I think that's the term that's often used in these cases.

[00:10:27] Speaker 02:
Where would you draw the line?

[00:10:29] Speaker 04:
Yeah, it's interesting that the court uses the word casual visitor, but that's not the test.

[00:10:33] Speaker 04:
The court says that the defendant must have a substantial connection to the premises and be more than just a casual visitor.

[00:10:42] Speaker 04:
And here, our argument is that a mere five days that may not have been continuous at an Airbnb that was rented by someone else

[00:10:54] Speaker 04:
The court just did not find enough facts.

[00:10:56] Speaker 04:
It was rendered in his direction.

[00:10:58] Speaker 02:
That's not disputed.

[00:10:59] Speaker 04:
Yes, Your Honor, it's not disputed.

[00:11:00] Speaker 03:
That was stipulated at the trial.

[00:11:04] Speaker 03:
What is your understanding of the Sentencing Commission's policy in adopting subparagraph B-12?

[00:11:11] Speaker 03:
What was it after?

[00:11:13] Speaker 03:
What was the danger that led to a two-level increase that it was trying to prevent?

[00:11:18] Speaker 04:
I think from my research, it's similar to

[00:11:21] Speaker 04:
the reason behind the so-called crack house statue, that maintaining a place of regular manufacture or drug distribution has negative effects on the community.

[00:11:35] Speaker 04:
It creates, you know, the opportunity for additional crime because it's one place where all of these folks are coming to manufacture or exchange the controlled substances.

[00:11:47] Speaker 03:
And why isn't that the case any time a defendant

[00:11:51] Speaker 03:
Seizes upon rents homes Property and opens it for business in that sense that isn't the same danger lurking in all of those situations There's going to be a shooting someone's going to try to rob the person of their drugs or the drug proceeds The children out in the street or more endangered by speeding cars or something like that

[00:12:14] Speaker 04:
Yes, Your Honor, I think that that danger increases as time goes by, and that's why continuity and duration are so important.

[00:12:21] Speaker 03:
But the guideline does not say two levels if it's one month worth of occupancy and four levels if it's a year of occupancy.

[00:12:31] Speaker 03:
It just says if you're doing this, you get two levels.

[00:12:33] Speaker 03:
I don't know why it would have to be more than one day.

[00:12:37] Speaker 03:
If you sold drugs on the first day, I don't know why that isn't good enough for this enhancement.

[00:12:42] Speaker 04:
If that were true, Your Honor, it would be difficult to conceive of a way that a defendant could possess a property without maintaining it, if it's just one day at a hotel for example.

[00:12:51] Speaker 04:
Here's one way.

[00:12:51] Speaker 04:
Don't sell drugs there.

[00:12:55] Speaker 04:
Your Honor, that would be the second prong of the sentence enhancement, which is both that the defendant has to maintain a premises and that it be for the purpose of distributing controlled substances.

[00:13:10] Speaker 04:
They go hand in hand, don't they?

[00:13:13] Speaker 04:
They do, Your Honor.

[00:13:15] Speaker 04:
But the court must find maintain in addition to just for the purposes.

[00:13:21] Speaker 03:
You're not saying maintain, like, make sure the shingles don't leak water into the living room?

[00:13:26] Speaker 04:
Your Honor, that is an aspect, I believe, of the regular definition of maintain.

[00:13:30] Speaker 03:
All right.

[00:13:31] Speaker 03:
Yeah.

[00:13:32] Speaker 03:
If they don't mow their lawn, I'm not sure they don't get minus two off for that.

[00:13:37] Speaker 03:
But maintaining is more a matter of arranging for this.

[00:13:43] Speaker 03:
Hey, I'm on the phone.

[00:13:45] Speaker 03:
I can sell you however much fentanyl if you get over here in 10 minutes and bring cash.

[00:13:49] Speaker 03:
And please, no firearms.

[00:13:52] Speaker 03:
Don't rob me.

[00:13:54] Speaker 03:
Seems good enough.

[00:13:56] Speaker 03:
You're maintaining the premises for that purpose.

[00:13:59] Speaker 03:
He didn't rent the Airbnb to go lounge on the beach.

[00:14:06] Speaker 04:
That's correct, Your Honor.

[00:14:06] Speaker 04:
I believe it's undisputed here that

[00:14:08] Speaker 04:
The purpose of renting the airbnb was to give him a place to stay while he was in tulsa And he was specifically in tulsa for the purpose of distributing controlled substances from there Why is that not game over?

[00:14:22] Speaker 04:
Because your honor there is a difference between mere possession and maintenance, and that's what we're we're discussing here, okay?

[00:14:29] Speaker 04:
Thank you if there are no further questions at this time.

[00:14:31] Speaker 04:
I'd like to reserve the remaining time for rebuttal.

[00:14:34] Speaker 04:
Thank you Thank you Mr.. Lowe

[00:14:47] Speaker 00:
Good morning, Your Honors.

[00:14:48] Speaker 00:
Lina Alam for the United States.

[00:14:50] Speaker 00:
I'd like to begin by apologizing for an error I noted in my brief on preparation at the top of page nine.

[00:14:57] Speaker 00:
I think we overstate the holding of the panel in Cortes Diaz.

[00:15:03] Speaker 00:
We say that ownership is not a factor.

[00:15:06] Speaker 00:
in determining whether a defendant maintained the property or had a possessory interest.

[00:15:12] Speaker 00:
That's incorrect.

[00:15:13] Speaker 00:
What the panel said in Cortes-Diaz was that ownership was not dispositive of the possessory interest factor.

[00:15:23] Speaker 00:
And here, I think that leads us to the discussion that Judge Hartz brought up.

[00:15:30] Speaker 00:
What possessory interest is sufficient?

[00:15:33] Speaker 00:
17 says possessory interest, e.g.

[00:15:38] Speaker 00:
renting or owning.

[00:15:39] Speaker 00:
I have looked through all the case law.

[00:15:44] Speaker 00:
I have not found a published decision that addresses hotel rooms.

[00:15:49] Speaker 00:
However, in at least six cases from 2017 through 2023, the fourth, fifth, sixth, eighth, ninth, and eleventh circuits have all held

[00:16:00] Speaker 00:
that the maintaining enhancement is appropriately applied when the defendant... Are those cases in your brief?

[00:16:08] Speaker 00:
They are not.

[00:16:09] Speaker 00:
They are not published authority, but I can submit a 28-J that would list those.

[00:16:15] Speaker 00:
Or I can list them for you today.

[00:16:16] Speaker 02:
28-J is better.

[00:16:18] Speaker 00:
Thank you.

[00:16:18] Speaker 00:
In almost every one of those cases, the panels of those courts held that use of a hotel room or a series of hotel rooms for the purposes of storing or distributing drugs were sufficient to support the maintaining enhancement.

[00:16:37] Speaker 03:
What's your understanding of the Senate's and Commission's policy?

[00:16:40] Speaker 03:
adopting that particular amendment?

[00:16:42] Speaker 00:
It is in part what Mr. Boland said and what you all discussed, the need to protect the neighborhoods and the properties and the neighbors from the effects of drug distribution.

[00:16:58] Speaker 00:
But another part of that is that the use of these places, the use of a stash house or a hotel room has the effect of

[00:17:10] Speaker 00:
enabling greater levels of drug distribution.

[00:17:15] Speaker 00:
Someone dealing drugs on the street can't store kilos in their pockets.

[00:17:19] Speaker 00:
If they have a place where they can store 8,000 pills of fentanyl, for example, $15,000, 190 plus rounds of ammunition, five chamber loaded firearms, a digital scale, that

[00:17:37] Speaker 00:
goes to the purpose behind the sentencing enhancement and behind 21 USC 856A1, because the use of a premises, whether a hotel room, an Airbnb, an apartment, a house.

[00:17:53] Speaker 00:
How about a tent?

[00:17:56] Speaker 01:
What wouldn't be included?

[00:17:57] Speaker 01:
And that's my question.

[00:17:58] Speaker 01:
I mean, it's so broad.

[00:18:01] Speaker 01:
If hotel rooms are included, you're not really talking about a neighborhood of homes.

[00:18:06] Speaker 01:
Apartments are

[00:18:07] Speaker 01:
I'm sure included.

[00:18:08] Speaker 01:
Airbnbs are included.

[00:18:11] Speaker 01:
What about a room within an Airbnb?

[00:18:15] Speaker 01:
What about a tent in the backyard?

[00:18:17] Speaker 00:
The borderlines of this analysis that we've talked about are a tent, a motorhome, a car.

[00:18:25] Speaker 00:
Would a car be a premises?

[00:18:26] Speaker 00:
We don't know.

[00:18:28] Speaker 01:
You could live in your car.

[00:18:29] Speaker 00:
And you would have control of your car and store drugs and your clothes in your car.

[00:18:33] Speaker 00:
Why wouldn't it be?

[00:18:34] Speaker 00:
It's possible that it would be.

[00:18:37] Speaker 00:
So what more than, I'm sorry, go ahead.

[00:18:39] Speaker 01:
Well, I guess I'm just kind of wondering what's the point of the enhancement.

[00:18:42] Speaker 01:
It basically could apply in any case.

[00:18:47] Speaker 01:
As long as the primary, primary purpose of the... As counsel will correctly identify, there are two prongs.

[00:18:55] Speaker 00:
And Verner's is a good example of where those prongs can diverge.

[00:19:01] Speaker 00:
In Verner's, Mr. Verner's mother was also charged with maintaining

[00:19:07] Speaker 00:
And the court looked at it and said, she definitely maintained this home.

[00:19:10] Speaker 00:
She had a possessor interest.

[00:19:11] Speaker 00:
It was her home, even though she didn't pay rent.

[00:19:15] Speaker 00:
But she didn't maintain it for the purpose.

[00:19:18] Speaker 00:
Mr. Verner's, it was a much, it wasn't, there was no question that he was using it for purposes of distribution.

[00:19:25] Speaker 00:
But the question was whether he maintained it.

[00:19:28] Speaker 00:
And so,

[00:19:28] Speaker 01:
And was it the room or the home that he maintained in that case?

[00:19:33] Speaker 01:
Because he clearly didn't maintain the home.

[00:19:37] Speaker 01:
He didn't live there.

[00:19:39] Speaker 01:
He had a room.

[00:19:40] Speaker 01:
He didn't even live in his room.

[00:19:42] Speaker 01:
What do you think it was there?

[00:19:45] Speaker 00:
And in Vernors, it was almost certainly the room and here.

[00:19:49] Speaker 01:
So he maintained his childhood room.

[00:19:52] Speaker 01:
in his mother's bigger home.

[00:19:55] Speaker 01:
He didn't live there, but he kept some things there and did some business there.

[00:20:01] Speaker 01:
And that was maintaining the room.

[00:20:05] Speaker 00:
Yes, for purposes of drug distribution.

[00:20:08] Speaker 00:
And here, we debated a little bit whether Mr. Day maintained the entire Airbnb

[00:20:16] Speaker 00:
or the room where he kept the red duffel with the firearms, kept most of the pills, and which he locked to protect himself.

[00:20:26] Speaker 00:
And so the district court's findings could be supported either for the entire Airbnb or merely for the primary bedroom, which Mr. Vernors was using for these purposes.

[00:20:40] Speaker 00:
I think this goes back to Judge Hartz's question about what the standard of review here is.

[00:20:46] Speaker 00:
Mr. Day would like it to be de novo, but we're looking only at the district court's findings.

[00:20:51] Speaker 00:
I think a proper de novo review here looks at the entire record and whether the facts in those records show that Mr. Day maintained the house.

[00:21:01] Speaker 00:
Show or could show?

[00:21:02] Speaker 02:
Is it necessary to persuade us or just that it's enough that the judge could be persuaded?

[00:21:11] Speaker 00:
It's enough to convince you that the district court didn't err in applying it based on those facts.

[00:21:17] Speaker 02:
Now, in maintenance, we've been discussing whether, okay, he just lives in a place and he deals drugs.

[00:21:26] Speaker 02:
to maintain a place for the purpose, he's got to use the premises, use it in some way to facilitate the drug transfer, such as keeping a larger stash or keeping weapons there, something like that.

[00:21:40] Speaker 02:
You agree to that?

[00:21:41] Speaker 00:
I do.

[00:21:42] Speaker 00:
I will note that Mr. Day is not challenging the four purposes of, he is challenging only the maintaining prong, and here the fact

[00:21:49] Speaker 00:
strongly established that Mr. Day maintained this, at least the bedroom and likely the entire Airbnb for the purposes of.

[00:21:59] Speaker 02:
It's that ladder for the purpose of that distinguishes someone just living someplace and being a dealer from someone maintaining a premises.

[00:22:10] Speaker 00:
And that was the primary issue in this court's decision in Murphy, where Murphy effectively conceded that he maintained his home, but challenged the for purposes of.

[00:22:22] Speaker 00:
Interestingly, to the extent that counsel attempts to distinguish Berners, Murphy in footnote nine notes that although Berners involves the maintaining statute 21 USC 856A1,

[00:22:40] Speaker 00:
The published decision in Murphy found Verner's instructive as to the 2D1.1b12 enhancement because this court has used similar analysis in both those cases.

[00:22:55] Speaker 00:
So I think Verner's is the proper case for this court to consider in assessing whether Mr. Day maintained the property here.

[00:23:04] Speaker 00:
In particular, Verner's identifies a number of factors from the 11th Circuit's decision in Clavis

[00:23:10] Speaker 00:
that inform this court's analysis of whether Mr. Day maintained this property.

[00:23:17] Speaker 00:
Those factors include his control over the space and the testimony established that Mr. Day was the sole person living at the house, that he came and went through the back door.

[00:23:30] Speaker 00:
The other factors include the duration and continuity of his use or maintenance of the property.

[00:23:39] Speaker 00:
Although Mr. Day suggests that the district court didn't find anything more than his possession for five days, a full review of the record reveals that in Mallory Massey's testimony, she testified that she had rented out that Airbnb for almost a month and that she unlocked the property for purposes of that lease on August 23rd.

[00:24:07] Speaker 00:
that she encountered Mr. Day at the property on September 9th.

[00:24:16] Speaker 00:
The other testimony by the Tulsa police officer, Nicholas Wheeler, who conducted the controlled by, established that the controlled by was conducted on September 15th and the

[00:24:31] Speaker 00:
defendant's half-brother, Charles Briggs, testified that he did another drug sale of 2,000 fentanyl pills at the property on September 19th.

[00:24:43] Speaker 01:
Can I interrupt you?

[00:24:44] Speaker 01:
That reminds me of a question I had about the manager or the person who came over.

[00:24:50] Speaker 01:
She said, I don't know if this was an affidavit or if she testified what

[00:24:56] Speaker 01:
But she said that she knew that nobody was or she thought nobody was using the premises because she gets an alert or notification every time someone punches in the code on the Airbnb door lock and nobody had been going in and out of the front door.

[00:25:15] Speaker 01:
And that's why she went right over there and she used her key or her access code and she walked right in and she didn't see anybody and she walks back to the bedroom, door is closed, she knocks,

[00:25:26] Speaker 01:
defendant is there, he's in the bedroom, and he says, oh, I've been coming in the back door.

[00:25:32] Speaker 01:
But doesn't all of that, the fact that she's getting notice of who's coming and going, I'm sure there's cameras at these places, and she can come over and she can walk in and she can check, doesn't all of that go to the question of whether he has control over the premises?

[00:25:49] Speaker 00:
It does.

[00:25:49] Speaker 00:
To clarify the record a little bit, there was some testimony that established

[00:25:54] Speaker 00:
that there were transmission problems, that she did not receive notification, for instance, on the day that Charles Briggs testified that the front door was opened to allow... That's not relevant.

[00:26:09] Speaker 01:
My point is she had some control and access, and that limited

[00:26:14] Speaker 01:
his control.

[00:26:16] Speaker 01:
She could tell who was coming and going, or if somebody was coming and going, she could walk in apparently at any time.

[00:26:22] Speaker 01:
How does that give him control of the premises?

[00:26:30] Speaker 00:
The enhancement doesn't require exclusive control.

[00:26:34] Speaker 00:
And certainly in circumstances like, for instance, hotel rooms, exclusive control, they're not different than this situation.

[00:26:42] Speaker 00:
But also,

[00:26:45] Speaker 00:
The degree of control he manifested was showed by the fact that he kept his own personal belongings, including expensive belongings like the PS5 and his expensive sneakers that he cared enough about to seek out Ms.

[00:27:01] Speaker 00:
Massey later to direct his girlfriend to go get those things.

[00:27:06] Speaker 00:
Those all went to the degree of control Mr. Day believed he had over the property.

[00:27:15] Speaker 02:
I thought he locked the door to the bedroom.

[00:27:18] Speaker 02:
Is that right?

[00:27:19] Speaker 00:
That is correct.

[00:27:20] Speaker 02:
She says... And could the landlord unlock that door?

[00:27:23] Speaker 00:
She was not able to.

[00:27:23] Speaker 00:
She had to wait for him to unlock it.

[00:27:26] Speaker 02:
So if the premises he maintained where he kept the drugs and the guns was the bedroom, then it looks like he had exclusive control of those premises.

[00:27:38] Speaker 02:
Am I wrong about that?

[00:27:39] Speaker 00:
The record would support that conclusion.

[00:27:41] Speaker 00:
Yes, Your Honor.

[00:27:42] Speaker 00:
And really, the access that Ms.

[00:27:45] Speaker 00:
Massey had in this case was no different from the access a typical landlord would have even for a long-term rental.

[00:27:53] Speaker 00:
The landlord generally always has some level of access, whether they choose to exercise it or not.

[00:27:58] Speaker 00:
The key here is that legal possessory interest is not what is required.

[00:28:05] Speaker 00:
helpful, but it is not required to show that a defendant possessed or had a possessory interest in the property and exercised control over that property in order to qualify for this enhancement.

[00:28:23] Speaker 00:
And for all those reasons, we would ask this court to affirm the two-level enhancement

[00:28:27] Speaker 00:
I would note that Mr. Day is correct, though, that the sentence on count three, the concurrent sentence on count three of 188 months exceeds the statutory maximum of 180 months.

[00:28:41] Speaker 00:
But as Mr. Day concedes in his footnote, because the 188-month sentence is also supported

[00:28:48] Speaker 00:
by the drug conviction in count one, assuming this court were to affirm the 188 months with the maintaining enhancement, there is no need to remand to correct the harmless error of the concurrent gun sentence.

[00:29:05] Speaker 00:
Thank you.

[00:29:06] Speaker 02:
Thank you.

[00:29:16] Speaker 04:
I'd like to address the issue of the locked door.

[00:29:19] Speaker 04:
We don't know whether the owner of the Airbnb could have unlocked that door and gotten in there, because she didn't say.

[00:29:26] Speaker 04:
She said it was locked, she knocked, and someone answered.

[00:29:30] Speaker 02:
But she thought there was no one there.

[00:29:32] Speaker 02:
Exactly.

[00:29:33] Speaker 02:
She thought there was no one there, comes up to the locked door, and doesn't try to unlock it, she knocks.

[00:29:41] Speaker 02:
If she didn't think anyone was there,

[00:29:44] Speaker 02:
Would the natural thing be to unlock it herself?

[00:29:47] Speaker 04:
I'm only speculating here, but I believe if it were me, I would believe no one's in the house, enter the front door and find a locked door and assume maybe someone still is there.

[00:29:58] Speaker 04:
So she knocks and she sees someone.

[00:30:00] Speaker 04:
That point goes to also the point of her seeing Mr. Day on September 9th.

[00:30:07] Speaker 04:
That fact was not established because

[00:30:10] Speaker 04:
She testified at trial that she didn't recognize him and that he looked the same as Mr. Briggs, the half brother.

[00:30:16] Speaker 04:
And the trial court, the district court, did not resolve that conflict in her testimony, one way or the other.

[00:30:21] Speaker 02:
She wasn't able to monitor the opening and closing of the bedroom door.

[00:30:28] Speaker 02:
It was the front door that she had.

[00:30:31] Speaker 02:
She had the front door monitored but not the back door and not the bedroom door.

[00:30:35] Speaker 02:
Am I correct about that?

[00:30:36] Speaker 04:
Correct, Your Honor.

[00:30:38] Speaker 04:
Thank you.

[00:30:38] Speaker 04:
Thank you.

[00:30:45] Speaker 02:
Thank you, Council.