Introduction

In a nonprecedential summary order, the United States Court of Appeals for the Second Circuit affirmed the sentence imposed by the Northern District of New York on defendant-appellant Anthony Luizzi following his guilty plea to federal drug-trafficking and firearm offenses. The panel (Judges Calabresi, Sack, and Lee) addressed three principal sentencing issues: (1) application of the Sentencing Guidelines’ two-level enhancement for “maintaining a premises for the purpose of” drug distribution under U.S.S.G. § 2D1.1(b)(12), often called the “stash house enhancement”; (2) whether a prior New York DWAI (driving while ability impaired) conviction should be counted in the criminal history score under U.S.S.G. § 4A1.2(c) in light of Application Note 5; and (3) whether the district court improperly imposed a $10,000 fine on an indigent defendant. The defendant also raised a broad substantive reasonableness challenge.

The order’s practical significance lies in three confirmations: (a) residential storage of substantial drug quantities suffices to trigger § 2D1.1(b)(12), even when the premises is a home; (b) after the Sentencing Commission’s post–Potes‑Castillo amendment, DWAI and similar impaired-driving convictions are “always counted” in criminal history; and (c) a plea agreement’s appeal waiver forecloses appellate review of fines that fall within statutory maxima. The decision also underscores the demanding nature of plain-error review and the centrality of preservation at sentencing.

Summary of the Opinion

• The Second Circuit affirmed application of § 2D1.1(b)(12) because Luizzi admitted using his residence (the “Twin Lakes apartment”) to store drugs and agents recovered 11,200 grams of fentanyl-laced M-30 pills and 1,033 grams of counterfeit Xanax pills there. Guideline commentary specifies that “storage” for distribution qualifies.
• The court held there was no plain error in counting Luizzi’s prior DWAI in his criminal history. Application Note 5 to § 4A1.2(c), as amended after United States v. Potes‑Castillo, now unambiguously directs that convictions for “driving while intoxicated or under the influence (and similar offenses)” are always counted.
• The court dismissed the fine challenge as waived under the plea agreement, which barred appeals of any fine within the statutory maximum. The $10,000 fine was well within the statutory limits.
• Any challenge to substantive reasonableness failed given the seriousness of the offense conduct, the defendant’s post-arrest behavior, and the district court’s exercise of discretion in imposing a below-Guidelines sentence.

Background

Luizzi pleaded guilty to conspiring to distribute and to possess with intent to distribute fentanyl, methamphetamine, and cocaine (21 U.S.C. §§ 846, 841), possession with intent to distribute (21 U.S.C. § 841), and possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)). He used his residence (the Twin Lakes apartment) to “help[] store” a supply of narcotics for a scheme to sell counterfeit Oxycodone (“M-30”) pills containing fentanyl, and had access to another stash location (the Western Avenue apartment).

Searches conducted the same day recovered at the Twin Lakes apartment 11,200 grams of fentanyl-laced “M-30” pills, 1,033 grams of counterfeit Xanax pills, five guns, and $2,616. At the Western Avenue apartment, agents recovered 403 grams of fentanyl pills, 7,237 grams of methamphetamine pills, 737 grams of cocaine, 29 guns in a safe, five additional guns, a digital scale with cocaine residue, and other suspected controlled substances. Luizzi admitted intending to traffic the pills and suspected they contained fentanyl.

The plea agreement stipulated to a base offense level of 36 and a three-level reduction for acceptance of responsibility (total offense level 33), and included an appeal waiver for imprisonment at or below 180 months and for any fine within statutory maxima. The PSR recommended a two-level increase under § 2D1.1(b)(12) for maintaining a drug premises, resulting in a total offense level of 35, and calculated Criminal History Category III based on prior convictions, including a DWAI. The district court adopted the PSR, imposed 150 months on the drug counts (concurrent) and a mandatory consecutive 60 months on the § 924(c) count (total 210 months), a concurrent five-year supervised release term, and a $10,000 fine.

Analysis

Precedents Cited and Their Influence

• United States v. Chu, 714 F.3d 742 (2d Cir. 2013) (per curiam). Establishes abuse-of-discretion framework for sentencing appeals, with both procedural and substantive components. The panel applied this standard throughout.
• United States v. McIntosh, 753 F.3d 388 (2d Cir. 2014) (per curiam). Defines procedural error examples (miscalculation, treating Guidelines as mandatory, inadequate explanation, etc.), guiding the court’s review of alleged guideline and explanation errors.
• United States v. Esteras, 102 F.4th 98 (2d Cir. 2024). Important for the § 2D1.1(b)(12) issue: the Second Circuit upheld the stash house enhancement where 66 grams of fentanyl were stored at a defendant’s residence. The panel here analogized and noted far greater quantities were stored in Luizzi’s home, reinforcing that residential storage suffices.
• United States v. Osuba, 67 F.4th 56 (2d Cir. 2023) and Anderson v. City of Bessemer City, 470 U.S. 564 (1985). These cases articulate the clear-error standard for factual findings and deference to a district court’s permissible view of the evidence—relevant to the stash house application and PSR adoption.
• United States v. Marcus, 560 U.S. 258 (2010). The Supreme Court’s four-part test for plain-error review controlled the DWAI issue, because the specific legal objection (alleged inconsistency between text and commentary) was not preserved below.
• United States v. Fletcher, 134 F.4th 708 (2d Cir. 2025). Applied to characterize preservation: acknowledging a point and urging leniency without squarely lodging a legal objection leaves the issue to plain-error review.
• United States v. Potes‑Castillo, 638 F.3d 106 (2d Cir. 2011). Earlier panel decision that found ambiguity in then-existing commentary on impaired-driving offenses. The Commission amended Application Note 5 in response—now expressly stating that DWI/DUI and “similar” offenses are always counted. The panel here leaned on that amendment to reject Luizzi’s argument.
• United States v. Ojeda, 946 F.3d 622 (2d Cir. 2020). Upholds enforcement of plea appeal waivers; used to bar Luizzi’s fine challenge.

Legal Reasoning

I. The § 2D1.1(b)(12) “Stash House” Enhancement

Section 2D1.1(b)(12) adds two levels where “the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance.” Commentary Note 17 clarifies that “distributing” includes “storage” of controlled substances for distribution. Courts assess whether drug distribution was one of the “primary or principal” uses of the premises, not necessarily the sole use, considering such factors as frequency of drug-use of the premises and extent of lawful use.

The panel found the enhancement fully supported. Luizzi admitted using his residence to “help[] store the supply of drugs,” and the search yielded vast quantities of fentanyl-laced pills and counterfeit Xanax, plus firearms and cash. Echoing Esteras, the court noted that residential storage alone suffices and that the quantities here dwarfed those in Esteras. The panel therefore did not need to resolve whether Luizzi also “maintained” the separate Western Avenue apartment.

Importantly, the court rejected the defendant’s argument that a premises used as a home cannot be a drug “premises” under § 2D1.1(b)(12) unless trafficking is the principal use. Given the storage of substantial drug quantities for distribution, the enhancement applied even though the apartment was also used to live, sleep, and eat.

II. Counting DWAI in Criminal History Under § 4A1.2(c)

Section 4A1.2(c) excludes certain petty and misdemeanor offenses from criminal history calculations, including those “similar to” reckless driving, but Application Note 5 expressly states: “Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are always counted, without regard to how the offense is classified.”

Luizzi argued that his New York DWAI should be excluded because it is analogous to reckless driving and that Application Note 5 (as applied to DWAI) conflicts with § 4A1.2(c)’s text. Because he did not preserve a specific legal objection at sentencing, review was for plain error. The panel emphasized two points:

• After Potes‑Castillo, the Commission amended Note 5 to eliminate ambiguity and clearly include impaired-driving offenses by any name—capturing DWAI. Thus, the text of the commentary supports counting DWAI.
• Even assuming a possible tension between Note 5 and the Guideline’s text, any error would not be “clear or obvious” under the stringent plain-error standard. District courts do not commit plain error by following authoritative commentary, especially where reasonable debate exists.

III. The $10,000 Fine and the Appeal Waiver

The plea agreement waived any appeal of a fine within the statutory maximum. The $10,000 fine was well below the maxima (up to $10,000,000 per drug count and $250,000 on the § 924(c) count). Accordingly, the panel enforced the waiver and declined to reach arguments about indigency or the district court’s findings under 18 U.S.C. § 3572 and U.S.S.G. § 5E1.2. The court did note the district judge’s observation that Luizzi failed to submit financial documentation to support inability to pay.

IV. Substantive Reasonableness

The total sentence of 210 months (150 months on the grouped drug counts plus the mandatory consecutive 60 months on the § 924(c) count) was below the advisory Guidelines when the § 924(c) term is added to the drug-count range. Given the serious quantities, the presence of numerous firearms, and Luizzi’s conduct while detained (assaulting a corrections officer), the court found no abuse of discretion. The district court also considered mitigating factors including Luizzi’s youth and substance-abuse history, further supporting substantive reasonableness.

Impact and Practice Implications

• Residential storage is enough. In the Second Circuit’s practical application, a residence can be a qualifying “premises” under § 2D1.1(b)(12) when a defendant stores significant quantities of drugs there for distribution. Defendants cannot defeat the enhancement by pointing to ordinary residential use when substantial distribution-related storage is proven.
• DWAI post–Potes‑Castillo is counted. The Commission’s amendment to § 4A1.2(c) Application Note 5 settled prior ambiguity: DWAI/DUI/DWI and “similar” offenses are always counted, regardless of classification under state law (violation, infraction, misdemeanor). Defense counsel should not expect exclusion under the “similar to reckless driving” rubric.
• Preserve deference-to-commentary challenges. If a party intends to argue that guideline commentary exceeds or conflicts with the Guideline text (invoking Stinson and post-Kisor debates), the objection must be timely and specific in the district court. Absent preservation, the argument will typically fail under plain-error review because any purported inconsistency is unlikely to be “clear or obvious.”
• Appeal waivers have teeth. Challenges to fines are barred when the plea agreement contains a waiver covering fines within statutory limits. If inability to pay is an issue, counsel should develop a robust record and consider negotiating carve-outs in the appeal waiver.
• Build the mitigation record. Though the panel affirmed, the district court’s noted consideration of youth and substance-abuse history illustrates that mitigation can drive significant downward variances relative to the combined guidelines exposure (including § 924(c) add-ons).

Complex Concepts Simplified

• Abuse of discretion: Appellate courts give deference to sentencing judges; they reverse only if the judge made a clear procedural mistake or imposed a sentence outside the range of permissible decisions given the facts and § 3553(a) factors.
• Procedural vs. substantive reasonableness: Procedural error concerns the process (e.g., miscalculating the Guidelines). Substantive reasonableness asks whether the sentence is “too high” or “too low” in light of statutory factors and the facts.
• § 2D1.1(b)(12) “stash house” enhancement: Adds two offense levels if a defendant “maintained” a premises “for the purpose” of distribution or manufacture. “Maintained” generally means exercised control over the premises; “for the purpose” includes using it to store drugs for sale. It need not be the sole purpose.
• Criminal history under § 4A1.2(c): Some petty/misdemeanor convictions are excluded from criminal history, but the Guideline commentary makes a categorical exception—impaired-driving offenses (DWI/DUI/DWAI, etc.) “are always counted,” no matter how a state labels them.
• Guideline commentary deference: Under Stinson v. United States, commentary is authoritative unless it conflicts with the Guideline text. After Kisor v. Wilkie, some courts scrutinize commentary more closely. In plain-error posture, however, district courts are not faulted for following commentary absent a clear conflict.
• Plain-error review: A four-part test. The appellant must show an error that is clear or obvious, that affected substantial rights (usually the outcome), and that seriously affects the fairness or integrity of judicial proceedings. It is a high bar.
• Appeal waivers: Plea agreements often waive the right to appeal certain sentences (e.g., imprisonment up to a set cap or any fine within statutory limits). Courts enforce such waivers if knowing and voluntary.

Conclusion

Although issued as a nonprecedential summary order, United States v. Luizzi offers clear, practitioner-focused guidance. First, substantial residential storage of drugs establishes eligibility for the § 2D1.1(b)(12) enhancement, consistent with the Guideline’s commentary and recent Second Circuit applications like Esteras. Second, the Sentencing Commission’s amendment to § 4A1.2(c) Application Note 5 resolves prior uncertainty: DWAI/DUI/DWI and similar offenses are always counted in criminal history, and failure to preserve a contrary legal challenge will doom it under plain-error review. Third, appeal waivers covering fines within statutory maxima are enforced as written.

More broadly, the decision reinforces perennial sentencing lessons: preserve specific legal objections, develop the mitigation and financial-ability record, and expect that district courts may impose meaningful downward variances while still surviving substantive reasonableness review when the offense conduct is grave and the court provides a reasoned explanation. Even without precedential effect, Luizzi’s takeaways will likely shape day-to-day sentencing practice in drug and firearm cases across the Circuit.