Sixth Circuit Reaffirms “Low Bar” for U.S.S.G. §2D1.1(b)(12) Stash‑House Enhancement and Approves Use of Empirical Sentencing Data to Address §3553(a)(6) Disparities

Case: United States v. Richard Confer, No. 24‑3589 (6th Cir. Oct. 15, 2025) (not recommended for publication)

Court: U.S. Court of Appeals for the Sixth Circuit

Panel: Cole, Kethledge, and Nalbandian, JJ.; opinion by Nalbandian, J.

Introduction

In this unpublished decision, the Sixth Circuit affirmed a 97‑month sentence imposed on Richard Confer for two counts of methamphetamine distribution, rejecting both his procedural and substantive reasonableness challenges. The opinion is noteworthy for two reasons:

It reiterates that the U.S.S.G. §2D1.1(b)(12) “stash‑house” enhancement presents a “relatively low bar,” satisfied when a defendant stores drugs and conducts transactions at a residence, even if the home is also used for normal living purposes.
It confirms that while district courts may vary from the Guidelines based on policy disagreements (here, a critique of the methamphetamine “purity” differential), they are not required to do so; instead, courts may address §3553(a)(6) unwarranted‑disparity concerns by consulting empirical sentencing data for similarly situated offenders.

Against the backdrop of three controlled drug events in 2023—two involving a confidential informant at Confer’s residence and a third buyer observed leaving the home—Confer pleaded guilty to two distribution counts under 21 U.S.C. § 841(a)(1), (b)(1)(B). The Presentence Investigation Report set an advisory Guidelines range of 108–135 months (offense level 29; criminal history category III). The district court applied the premises‑maintenance enhancement and then imposed a below‑Guidelines sentence of 97 months after consulting sentencing statistics to address disparity concerns.

Summary of the Opinion

The court rejected Confer’s two appellate claims:

Procedural reasonableness: The district court correctly applied U.S.S.G. §2D1.1(b)(12) (premises maintained for drug distribution). Storing a “gallon‑size Ziploc” of meth under a chair and using a scale to parcel out sales at home satisfied the enhancement’s “primary purpose” requirement, which the Sixth Circuit has described as a low threshold. The home “played a significant part” in distribution activity.
Substantive reasonableness: The district court acted within its discretion by declining to vary based on a policy critique of the Guidelines’ harsher treatment of pure methamphetamine (≥80% purity) relative to mixtures. Instead, it addressed potential disparities by consulting sentencing data showing similarly situated defendants (same offense level and criminal history category) received median and average terms of roughly 84–86 months, and then varied downward to 97 months after considering all §3553(a) factors.

Given the strong deference to below‑Guidelines sentences, the Sixth Circuit affirmed.

Analysis

Precedents Cited and Their Influence

United States v. Bell, 766 F.3d 634 (6th Cir. 2014): Supplies the three‑part test for the premises‑maintenance enhancement and emphasizes that drug storage and transactions on the property “will usually suffice.” The panel applied Bell directly to find that Confer’s residence was used as a significant base for distribution.
United States v. Johnson, 737 F.3d 444 (6th Cir. 2013): Reinforces that the enhancement applies if the premises “played a significant part” in distribution—language echoed by the panel in upholding the enhancement for Confer’s home.
United States v. Leggett, 800 F. App’x 378 (6th Cir. 2020): Characterizes the primary‑use threshold as a “relatively low bar.” The district court relied on Leggett, and the panel affirmed that approach.
United States v. Lake, No. 23‑1454, 2024 WL 4977141 (6th Cir. Dec. 4, 2024): Confirms that the enhancement requires that drug distribution be “a” primary use, not “the” primary use, consistent with the Guidelines commentary. The panel’s analysis tracks Lake’s articulation.
United States v. Allen, No. 21‑3900, 2022 WL 7980905 (6th Cir. Oct. 14, 2022): Reiterates that drug distribution need only be one primary use of the premises, not the exclusive or predominant use.
United States v. Curry, 536 F.3d 571 (6th Cir. 2008); United States v. Greco, 734 F.3d 441 (6th Cir. 2013); United States v. Grossman, 513 F.3d 592 (6th Cir. 2008); Gall v. United States, 552 U.S. 38 (2007); United States v. Conatser, 514 F.3d 508 (6th Cir. 2008): Together, these decisions frame appellate review: bifurcated procedural/substantive reasonableness; deference to district courts; presumption of reasonableness for within‑Guidelines sentences and even stronger deference when a sentence is below the advisory range; and the markers of substantive unreasonableness (arbitrariness, impermissible factors, failure to consider relevant factors, or unreasonable weighting).
United States v. Allen, 93 F.4th 350 (6th Cir. 2024): Clarifies that district courts may vary from the Guidelines based solely on policy disagreements, but are not required to accept a defendant’s policy critique. The panel used this principle to uphold the district court’s refusal to vary based on alleged “antiquated” treatment of pure meth.

Legal Reasoning

1) Procedural reasonableness: the §2D1.1(b)(12) premises‑maintenance enhancement

The enhancement applies when a defendant knowingly maintains a place for the purpose of manufacturing or distributing a controlled substance. The contested element is purpose: was drug distribution one of the “primary or principal” uses of the premises? Sixth Circuit authority emphasizes:

“Primary” means “a” primary purpose, not “the” primary purpose; a residence can have multiple primary uses (Bell; Lake; Allen (2022)).
The threshold is a “relatively low bar,” often met by proof of on‑site storage plus transactions (Leggett; Bell).

Applying these principles, the court treated the following facts as sufficient:

Two controlled buys occurred at Confer’s residence.
Confer kept a “gallon‑size Ziploc bag” of meth under his chair and used a digital scale to parcel out quantities for sale—classic indicia of on‑site storage and distribution.
A third buyer left the residence shortly after arriving, corroborating real‑world transactions at the home.

Confer’s counter‑argument—that the home’s primary use was ordinary living (e.g., watching television)—did not undermine the enhancement because the law permits multiple primary uses. Given the undisputed facts, the district court’s two‑level increase was a correct Guidelines calculation, defeating Confer’s procedural claim.

2) Substantive reasonableness: policy critique of the meth “purity” differential and use of sentencing data

Confer argued that the Guidelines’ treatment of “pure” methamphetamine (≥80% purity) is “antiquated,” effectively using a 10‑to‑1 ratio relative to mixed methamphetamine in the Drug Quantity Table (U.S.S.G. §2D1.1(c) n.(C)). The district court considered, but rejected, a policy‑variance request premised on this critique, noting methamphetamine’s broader harms irrespective of purity.

The Sixth Circuit emphasized a core appellate principle: although district courts may vary from the Guidelines based on policy disagreements, they are not obliged to do so whenever a defendant mounts a policy attack (Allen, 93 F.4th at 359). The district court therefore did not err in declining to adopt Confer’s policy view.

Importantly, the district court still took §3553(a)(6)’s directive—avoiding unwarranted disparities—seriously by consulting empirical sentencing data supplied by probation:

For 35 “similarly situated” defendants (same offense level and criminal history category), the median sentence was 84 months and the average was 86 months.
Balancing those data with the full array of §3553(a) factors, the court varied downward to 97 months—well below the 108–135 month advisory range.

On appeal, that approach received substantial deference. Below‑Guidelines sentences enjoy a fortified presumption of reasonableness in the Sixth Circuit, and Confer did not show that the court selected an arbitrary sentence, relied on impermissible factors, ignored relevant factors, or overweighted one factor unreasonably. The variance was therefore substantively reasonable.

Impact

Stash‑house enhancement litigation: This opinion continues a line of Sixth Circuit authority that makes §2D1.1(b)(12) comparatively easy for the government to satisfy when the record shows on‑site storage plus transactions and typical distribution tools (e.g., scales). Defense arguments that the residence was chiefly for living are insufficient without more; defendants must negate the inference that distribution was “a” primary use.
Policy variances and meth purity: Though defendants may press policy critiques of the meth purity differential, district courts are under no obligation to adopt them. This reinforces trial‑level discretion and signals that such policy disagreements—while permissible grounds for variance—are neither compelled nor presumptively meritorious on appeal.
Empirical data and §3553(a)(6): The court tacitly endorses a pragmatic path to addressing unwarranted disparities: examine sentencing outcomes for similarly situated offenders (same offense level and criminal history category) and calibrate the sentence accordingly, while still weighing the other §3553(a) factors. This approach is a workable alternative to wholesale policy disagreements with the Guidelines.
Appellate deference to below‑Guidelines sentences: The opinion underscores that it is particularly difficult to overturn a below‑Guidelines sentence for substantive unreasonableness. Defense counsel should expect a high bar and focus on building a robust record at sentencing.
Unpublished but persuasive: Although “not recommended for publication,” the opinion consolidates Sixth Circuit themes that will likely influence district court practice and plea/sentencing negotiations in methamphetamine cases.

Complex Concepts Simplified

Procedural vs. Substantive Reasonableness: Procedural reasonableness asks whether the court followed the right steps (correctly calculated the Guidelines, treated them as advisory, considered §3553(a) factors, and explained the sentence). Substantive reasonableness asks whether the length of the sentence is reasonable in light of those factors; appellate courts give broad deference, especially to below‑Guidelines sentences.
U.S.S.G. §2D1.1(b)(12) (“Stash‑House” Enhancement): Adds two levels if the defendant maintained a premises for drug distribution or manufacturing. The key is whether distribution was “a” primary use of the place—not necessarily the only or predominant use. Evidence of storage plus transactions at the premises typically satisfies the requirement.
Pure vs. Mixed Methamphetamine in the Guidelines: The Drug Quantity Table treats methamphetamine “actual” and “ice” (≥80% purity) more severely than mixtures—roughly a 10:1 ratio, meaning fewer grams of pure meth trigger the same base offense level as many more grams of a mixture. Defendants sometimes argue this ratio is outdated, but courts are not required to vary on that basis.
§3553(a)(6) Unwarranted Disparities: Courts should strive for consistent sentences among similarly situated defendants. One way to do that is by consulting empirical sentencing data for offenders with the same offense level and criminal history category, while remembering that case‑specific facts may justify divergence.
Advisory Guidelines and Policy Disagreements: After Booker, the Guidelines are advisory. District courts may disagree with a Guideline on policy grounds and vary accordingly, but they are not compelled to accept a defendant’s policy critique in any given case.

Conclusion

United States v. Confer reinforces two durable principles in Sixth Circuit sentencing law. First, the “stash‑house” enhancement under §2D1.1(b)(12) remains a low‑threshold adjustment when a residence is used to store and sell drugs, even if it also serves ordinary residential purposes. Second, while courts may entertain policy disagreements with the Guidelines—such as challenges to the methamphetamine purity differential—they are not obliged to grant policy variances. District courts can instead address potential unwarranted disparities under §3553(a)(6) by consulting empirical sentencing data for similarly situated defendants and then calibrating the sentence in light of all statutory factors.

Because the district court here properly calculated the Guidelines, rejected a policy‑variance request within its discretion, and supported a below‑Guidelines sentence by reference to §3553(a) data and factors, the Sixth Circuit affirmed. Practitioners should expect continued deference to well‑explained, below‑Guidelines sentences and should tailor sentencing advocacy accordingly—either by meaningfully undercutting the inference that a premises served as “a” primary distribution site or by building a compelling, fact‑grounded case for variance that goes beyond generalized policy critiques.