Living at the Drug-Distribution Location “Easily Proves” Maintaining a Premises Under U.S.S.G. § 2D1.1(b)(12) Without Ownership, and Unobjected PSR Facts Control

I. Introduction

In United States v. Shane (10th Cir. May 28, 2026) (unpublished “Order and Judgment”), the Tenth Circuit affirmed a below-Guidelines 168-month sentence for conspiracy to distribute methamphetamine under 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A). The appeal focused on a single Guidelines question: whether the district court correctly applied the two-level enhancement in U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for drug distribution.

The central dispute was not whether drugs were distributed from the Colorado residence, but whether Mr. Shane “maintained” the premises—particularly where he did not own or lease the house, which was said to be owned by his father-in-law.

II. Summary of the Opinion

The Tenth Circuit held the enhancement was properly applied because the record supported that Mr. Shane lived at the residence throughout the conspiracy, and when a defendant lives in a house, the “maintained” element is “normally easily proved.” The court further held that:

  • Ownership or a leasehold interest is not required to “maintain” a premises for purposes of § 2D1.1(b)(12).
  • The district court could rely on the PSR where Mr. Shane failed to object to key factual assertions (notably, that he resided there throughout the conspiracy).
  • The court could rely on corroborated hearsay from co-conspirators summarized in the PSR and supported by search-warrant evidence.

Accordingly, the panel affirmed the sentence.

III. Analysis

A. Precedents Cited

1. United States v. Day

The panel treated United States v. Day, 135 F. 4th 1248 (10th Cir. 2025), as the controlling modern Tenth Circuit synthesis of § 2D1.1(b)(12). Day supplies two key building blocks used in Shane:

  • The enhancement’s “maintained” requirement is informed by the Sentencing Commission’s “authoritative” commentary: factors include “(A) whether the defendant held a possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access to, or activities at, the premises.”
  • Critically for Mr. Shane’s argument, Day underscores that it is “well-established” the enhancement does not require a formal property interest.

In effect, Day preempted Mr. Shane’s primary rhetorical theme (no ownership/lease), making the case turn on residence, control, and use.

2. United States v. Verners

United States v. Verners, 53 F.3d 291 (10th Cir. 1995), provided the doctrinal anchor for the “maintained” element in a residence context. The Shane panel relied on Verners for three propositions:

  • Courts consider a broad set of indicia of maintenance—control, duration, acquisition, furnishing, repairing, supervising, protecting, and continuity.
  • When the premises is a residence, the defendant must have a substantial connection and be “more than a casual visitor.”
  • Most importantly, “[w]here the defendant lives in the house,” the “maintained” element “is normally easily proved.”

Shane essentially becomes a Verners application: once the panel accepted that Mr. Shane lived there, the “maintained” prong was straightforward. The panel also invoked Verners to reject the idea that non-ownership defeats the enhancement, noting Verners applied it where the defendant lived continuously in a house owned by her ex-husband and she did not pay rent.

3. United States v. Murphy

United States v. Murphy, 901 F.3d 1185 (10th Cir. 2018), supplied the test for the “purpose” element: distribution need not be the sole purpose, but must be among the “primary or principal uses,” assessed by frequency of drug-related use compared to lawful use.

Notably, in Shane this element did little work because Mr. Shane did not dispute that the home was used for drug distribution. The dispute was confined to “maintained.”

4. United States v. Hardy

United States v. Hardy, 149 F.4th 1153 (10th Cir. 2025), structured the panel’s treatment of sentencing evidence and appellate review:

  • Clear-error review of factual findings: reversal only when findings lack factual support or the appellate court has a “definite and firm conviction” of mistake.
  • At sentencing, hearsay may be used if it bears “some minimal indicia of reliability,” and corroboration is “often key” though the threshold is “a low hurdle.”

The panel used Hardy to approve the district court’s reliance on co-conspirator statements summarized in the PSR because the statements were corroborated by the search (drugs, firearms, distribution paraphernalia) and by the location of Mr. Shane’s wallet/driver’s license with contraband.

5. United States v. McDonald

United States v. McDonald, 43 F.4th 1090 (10th Cir. 2022), supplied two procedural rules that were decisive against Mr. Shane:

  • The government must prove an enhancement by a preponderance of the evidence.
  • The sentencing court may rely on facts stated in the PSR unless the defendant has objected to them.

The panel emphasized that Mr. Shane objected to applying § 2D1.1(b)(12) but did not object to the PSR’s factual statement that he “resided at [the address] … throughout the duration of the conspiracy.” That failure mattered: it allowed the district court (and then the appellate court) to treat residence as established, substantially collapsing the “maintained” analysis under Verners.

B. Legal Reasoning

The opinion proceeds in three linked steps.

Step 1: Identify the controlling framework for § 2D1.1(b)(12)

The panel restated the enhancement and drew its operative meaning from the Guidelines commentary and Tenth Circuit precedent: “maintained” turns on possessory interest and control, plus practical indicia of ongoing use; and the premises must be used primarily (not incidentally) for distribution.

Step 2: Narrow the dispute to “maintained,” then resolve it largely through residence

Because Mr. Shane did not dispute that the residence was used for distribution, the court focused only on whether he “maintained” it. Mr. Shane tried to reframe himself as a “casual visitor” storing items, but the panel found he failed to preserve that theory because he did not contest the PSR’s residence facts or address the PSR addendum stating he had lived there for years.

On the merits, the panel deemed the record sufficient: co-conspirators described it as his home and as a place they visited to buy drugs; law enforcement corroborated those statements through the search (distribution quantities, paraphernalia, and firearms), and the placement of Mr. Shane’s personal identification with contraband supported his connection to and control over the garage safe. Once residence was established, Verners made “maintained” “easily proved.”

Step 3: Reject formal-title arguments and validate PSR/hearsay reliance

The panel treated the “no ownership/lease” point as legally insufficient under Day and Verners. It also rejected the attack on PSR reliance, noting the district court may rely on (i) corroborated hearsay with minimal indicia of reliability and (ii) PSR facts not specifically objected to.

C. Impact

  • Non-ownership is a weak defense in § 2D1.1(b)(12) cases. In the Tenth Circuit, the enhancement’s “maintained” element is not tied to formal property rights; control and lived connection are enough.
  • Residence status can effectively decide the “maintained” prong. Shane reinforces the practical significance of Verners: if the defendant lives there, appellate courts are likely to treat “maintained” as readily satisfied.
  • PSR litigation strategy is outcome-determinative. The case underscores a recurring sentencing lesson: objecting to the legal application of an enhancement is not the same as objecting to the underlying facts. Failure to contest PSR assertions (e.g., “resided there throughout”) can concede the key predicate fact.
  • Corroboration need not be extensive. The panel’s use of Hardy signals that modest corroboration (a search recovering drugs/paraphernalia and personal effects) will typically satisfy the “low hurdle” for reliability of hearsay at sentencing.

IV. Complex Concepts Simplified

“Maintained a premises” (U.S.S.G. § 2D1.1(b)(12))
This does not mean the defendant must own or rent the property. Courts look for practical responsibility and connection: living there, controlling who enters or what happens there, and using the site as a stable base for storing/selling drugs.
Guidelines “commentary” and “authoritative” notes
The Sentencing Guidelines include notes explaining how provisions should be applied (here, Note 17). Courts frequently treat these notes as highly persuasive—and often controlling—interpretive guidance.
Preponderance of the evidence (sentencing burden)
The government need only show the enhancement is more likely true than not (i.e., >50% likelihood), not “beyond a reasonable doubt.”
Hearsay at sentencing / “minimal indicia of reliability”
Sentencing courts can consider statements that might be inadmissible at trial, including hearsay, so long as there is some reason to trust them—often shown through corroboration (e.g., physical evidence from a search).
PSR (Presentence Investigation Report) and objections
The PSR is the probation office’s fact and Guidelines report. If a defendant does not specifically object to a PSR fact, courts may treat it as admitted for sentencing purposes.

V. Conclusion

United States v. Shane affirms that, in the Tenth Circuit, the § 2D1.1(b)(12) “maintaining a premises” enhancement is readily supported where the defendant lives at the location used for distribution, even absent ownership or a lease. The decision also highlights two practical sentencing rules with major consequences: (1) unobjected-to PSR facts may be treated as established, and (2) corroborated hearsay can supply reliable evidence for enhancements. The case’s broader significance lies less in breaking new doctrinal ground than in consolidating a clear, prosecution-favorable application of existing Tenth Circuit precedent—especially where residence and PSR admissions align.