Proximity-and-Extensive-Use Rule on Plain-Error Review for U.S.S.G. § 2D1.1(b)(1) and § 2D1.1(b)(12) Enhancements

1. Introduction

In United States v. David Kennedy (11th Cir. Apr. 27, 2026) (unpublished, non-argument calendar), the Eleventh Circuit affirmed a 180-month sentence imposed after David Gerome Kennedy pleaded guilty to (1) conspiracy to distribute and possess with intent to distribute more than 500 grams of cocaine and (2) possession with intent to distribute more than 500 grams of methamphetamine mixture, in violation of 21 U.S.C. §§ 841 and 846.

The core appellate dispute concerned two Guidelines enhancements applied at sentencing: a two-level increase for possession of a firearm, U.S.S.G. § 2D1.1(b)(1), and a two-level increase for maintaining a premises for drug distribution, U.S.S.G. § 2D1.1(b)(12). Because Kennedy did not object in the district court, the Eleventh Circuit reviewed only for plain error and held that the district court did not plainly err in applying either enhancement.

2. Summary of the Opinion

The court held that the firearm enhancement was supported because firearms were found at the Milton, Florida residence from which Kennedy conducted drug sales, in proximity to substantial quantities of controlled substances—satisfying the government’s burden and triggering a rebuttable presumption of connection to the offense. Kennedy did not show it was “clearly improbable” that the firearms were connected to the drug activity.

The court also held that the premises enhancement applied because the Milton residence was used repeatedly over several years for drug transactions and contained large quantities of drugs, making drug distribution one of the residence’s “primary or principal uses,” even if it was not the only use. The sentence was therefore affirmed.

3. Analysis

3.1 Precedents Cited

  • United States v. Boone, 97 F.4th 1331 (11th Cir. 2024)
    Role in this case: Provided the governing framework for plain-error review and the invited-error bar. The panel used Boone to state the defendant’s burden on unpreserved objections (clear/obvious error affecting substantial rights) and to distinguish waiver-like “invited error” from mere forfeiture.
  • United States v. Brannan, 562 F.3d 1300 (11th Cir. 2009)
    Role in this case: Defined invited error as occurring when a defendant “expressly consents to or affirmatively seeks a ruling.” The government argued invited error; the panel referenced Brannan to frame the doctrine but ultimately treated Kennedy’s conduct as a failure to object, not an affirmative invitation.
  • United States v. Dortch, 696 F.3d 1104 (11th Cir. 2012), overruled in part on other grounds by Alleyne v. United States, 570 U.S. 99 (2013)
    Role in this case: Dortch supplied the key clarification that “failing to object does not invite error.” This allowed the court to proceed under plain-error review rather than deeming the claims unreviewable. Alleyne is cited only to note Dortch’s partial overruling on unrelated grounds (mandatory minimum fact-finding), preserving Dortch’s invited-error point for use here.
  • United States v. Montenegro, 1 F.4th 940 (11th Cir. 2021)
    Role in this case: Set out the government’s initial burden for § 2D1.1(b)(1): show the firearm was present at the site of the charged conduct or possessed during relevant offense conduct, and establish “some connection beyond mere possession,” while not requiring proof that the firearm actually facilitated the drug distribution. The court relied on Montenegro to reject Kennedy’s “mere presence” framing.
  • United States v. Stallings, 463 F.3d 1218 (11th Cir. 2006)
    Role in this case: Provided two decisive rules: (1) proximity between firearms and drugs can be sufficient to support the enhancement, and (2) once the government meets its burden, the defendant must show the connection is “clearly improbable.” The panel used Stallings to conclude the Milton search evidence was enough and that Kennedy failed at the rebuttal step.
  • United States v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013)
    Role in this case: Explained the practical effect of the burden-shifting framework as a “rebuttable presumption” that a firearm “if present” is connected to the offense. The panel invoked this presumption to reinforce why, absent a concrete rebuttal, the enhancement stands—especially on plain-error review.
  • United States v. George, 872 F.3d 1197 (11th Cir. 2017)
    Role in this case: Defined the § 2D1.1(b)(12) standard: drug distribution need not be the sole use of the premises, but must be a “primary or principal” use (drawing from Application Note 17), including storage for distribution. The panel used George to reject Kennedy’s argument that the Milton home had other functions.
  • United States v. Rodriguez, 75 F.4th 1231 (11th Cir. 2023)
    Role in this case: Confirmed that even a family home can qualify if there is evidence of “extensive drug activity,” such as drugs found in the residence and evidence of storage/distribution. The panel used Rodriguez to treat the multi-year controlled buys and the large drug seizure as sufficient proof of a principal drug use.

3.2 Legal Reasoning

(A) The procedural posture drove the outcome. Because Kennedy did not object to the enhancements after the presentence report and guideline calculation were adopted, the court applied plain-error review under United States v. Boone. That standard is intentionally demanding: the defendant must show an error that is “clear or obvious” and that affects substantial rights. In practice, where the record contains evidence supporting the district court’s view, reversal is unlikely.

(B) Firearm enhancement—proximity plus presumption. Under § 2D1.1(b)(1), the court treated the discovery of multiple firearms at the Milton residence—where officers also found large quantities of drugs and where controlled buys occurred—as sufficient to establish the required nexus. Citing United States v. Stallings, the court emphasized that proximity between firearms and drugs can be enough. Then, consistent with United States v. Carillo-Ayala, the court described the evidentiary effect as a rebuttable presumption of connection. Kennedy’s arguments (e.g., “presence alone,” lack of access) did not satisfy the required rebuttal showing that the connection was “clearly improbable.”

(C) Premises enhancement—“primary use” shown by repeated sales and large storage. For § 2D1.1(b)(12), the court focused on the pattern and scale of use: multiple controlled buys at the Milton address across years, wiretap evidence indicating the residence was used to arrange transactions, and the seizure of significant quantities of controlled substances there. Under United States v. George, a premises can have legitimate uses yet still qualify so long as drug distribution is one of its principal uses. Under United States v. Rodriguez, extensive drug activity in a residence supports the enhancement. The Milton residence met that benchmark.

3.3 Impact

Although designated “NOT FOR PUBLICATION,” the decision reinforces several practical points likely to shape sentencing litigation in the Eleventh Circuit:

  • Plain-error review is outcome-determinative: defendants who do not object to § 2D1.1 enhancements face a steep uphill battle on appeal, especially where the record contains classic indicia (drugs + guns; repeated sales + storage).
  • Firearm enhancement remains broadly applied: the proximity-and-presumption approach drawn from United States v. Stallings and United States v. Carillo-Ayala continues to make § 2D1.1(b)(1) difficult to defeat without affirmative evidence severing any connection to drug activity.
  • Premises enhancement continues to cover “stash/sales” homes even with mixed use: consistent with United States v. George and United States v. Rodriguez, repeated dealing activity plus meaningful storage quantities will often establish a “primary use,” even if the defendant also uses another residence for sleeping.

4. Complex Concepts Simplified

  • Plain error: A limited appellate safety net for issues not raised below. The error must be obvious, and it must matter (affect the outcome). If the record plausibly supports the district court, plain error is rarely found.
  • Invited error: If a defendant affirmatively asks the court to do something, he generally cannot complain about it on appeal. Here, failing to object was treated as forfeiture, not invited error.
  • § 2D1.1(b)(1) “connection” and the “clearly improbable” rebuttal: Once the government shows a gun was present in a drug-trafficking context (often via proximity to drugs), the defendant must affirmatively show the gun’s connection to the offense is highly unlikely—more than simply suggesting alternative explanations.
  • § 2D1.1(b)(12) “maintaining a premises” and “primary use”: The home does not have to be used exclusively for drugs. The enhancement applies if drug distribution (including storage for distribution) is one of the main uses, proven through patterns like repeated sales, packaging/storage evidence, and sizable drug quantities found there.

5. Conclusion

United States v. David Kennedy confirms that, on plain-error review, the Eleventh Circuit will readily uphold § 2D1.1(b)(1) and § 2D1.1(b)(12) enhancements where the record shows (1) firearms found at a drug-sales/stash location in proximity to drugs and (2) a residence used extensively for drug trafficking over time, even if the defendant has another home for ordinary living. The decision’s lasting significance is less a new doctrinal shift than a clear reaffirmation: proximity plus sustained trafficking activity typically suffices, and the failure to object at sentencing makes reversal exceptionally difficult.