The Drug-Premises Enhancement Requires Evidence of Maintenance, Not Merely Brief Possession

1. Introduction

In United States v. Conill-Perez, the Tenth Circuit clarified the evidentiary limits of the federal Sentencing Guidelines’ enhancement for maintaining premises for drug manufacturing or distribution. Brief possession of a hotel room, without meaningful evidence of control over or use of that room, did not establish that the defendant “maintained” the premises under U.S.S.G. § 2D1.1(b)(12).

The appeal also addressed whether an old conviction could generate criminal-history points when a later probation revocation resulted in imprisonment within the Guidelines’ fifteen-year lookback period. On that issue, the court found no plain error. The distinction matters: the premises ruling resolved a preserved legal challenge, while the criminal-history ruling rejected an unpreserved challenge under a more demanding appellate standard.

The court affirmed in part, reversed in part, and remanded for resentencing. It did not disturb Conill-Perez’s guilty plea or conviction.

2. Background and Sentencing

The drug transactions and hotel investigation

On September 12, 2024, Ernesto Conill-Perez traveled from Miami to Oklahoma City at another individual’s direction to distribute controlled substances. In a restaurant parking lot, he supplied a confidential source with four packages containing a total of 4,000 pills marked “M-30.” He then traveled with E.B. to a Country Inn and Suites, where officers observed them entering the lobby with luggage.

Later that afternoon, Conill-Perez walked to another hotel’s parking lot and briefly entered a Nissan. A subsequent traffic stop established that he had given its driver 1,000 M-30 pills. Officers separately stopped E.B., finding marijuana vape pens and luggage in his vehicle.

At the Country Inn, hotel personnel told agents that E.B. had rented a room. Staff also supplied a paper bearing both men’s names and identifying room 210. Agents subsequently saw Conill-Perez entering the lobby with a duffel bag. When approached, he fled and threw the bag into a neighboring hotel’s pool area. Agents arrested him and recovered the bag, which contained additional pills.

Testing established that the pills supplied to the confidential source and those recovered from the duffel bag contained a fentanyl analogue. The Nissan pills were not included in that testing account. Conill-Perez admitted that he had traveled to distribute drugs and that E.B. had helped rent the room because he could not rent it himself.

The decisive evidentiary gap concerned the room itself. No evidence established that Conill-Perez entered or exited room 210, slept there, stored belongings there, or controlled access to it. A search revealed no drugs, drug paraphernalia, or large amounts of cash. The record also left uncertain whether his observed lobby entry followed the nearby transaction or a visit to a hotel room.

The sentence and appeal

Conill-Perez pleaded guilty, without a plea agreement, to possession of fentanyl with intent to distribute under 21 U.S.C. § 841(a)(1). The presentence investigation report calculated:

• A total offense level of 35, including the two-level drug-premises enhancement;
• Seven criminal-history points, including three associated with a 1996 Florida conviction; and
• An initial advisory sentencing range of 235 to 293 months.

The district court rejected Conill-Perez’s objections to the premises enhancement. It separately removed one criminal-history point for reasons not relevant to the appeal, producing criminal-history category III and a range of 210 to 262 months. The court then varied downward to 180 months’ imprisonment and imposed five years of supervised release.

Conill-Perez preserved his challenge to the premises enhancement but did not object below to the three points associated with the 1996 conviction.

3. Summary of the Opinion

1. The premises enhancement was unsupported. Even accepting that Conill-Perez possessed the hotel room for several hours, the evidence did not establish maintenance. The government identified little, if any, evidence of control, actual room use, or continuity.
2. The court did not decide the drug-purpose requirement. Because the maintenance element failed, the court did not determine whether any maintenance would have been “for the purpose of” manufacturing or distributing controlled substances.
3. The criminal-history calculation was not plainly erroneous. The Guidelines supported treating the original probationary sentence as zero imprisonment, combining it with the later 46-month revocation sentence, and measuring the relevant lookback period from release on that sentence.
4. Resentencing was required. The court affirmed the criminal-history ruling under plain-error review, reversed the premises enhancement, and remanded.

4. Analysis: Maintaining Drug Premises

A. The governing framework

Section 2D1.1(b)(12) adds two offense levels when a defendant “maintained a premises for the purpose of manufacturing or distributing a controlled substance.” The provision therefore requires more than proof that the defendant was trafficking drugs and had some connection to a location.

Application Note 17 identifies two particularly relevant considerations:

• Whether the defendant had a possessory interest, such as ownership or a rental interest; and
• The extent of the defendant’s control over access to, or activities at, the premises.

The court also drew on decisions interpreting 21 U.S.C. § 856(a)(1), the statutory counterpart addressing places maintained, permanently or temporarily, for controlled-substance activities. Those decisions examine control, duration, acquisition, renting, furnishing, repairs, supervision, protection, supplying food, and continuity.

These considerations are contextual. Formal ownership is not necessary, ordinary property upkeep is not indispensable, and temporary accommodation is not categorically excluded. But a possessory connection alone does not necessarily establish maintenance.

B. Standards of review and the factual record

United States v. Copus, 110 F.3d 1529, 1535 (10th Cir. 1997), supported the court’s acceptance of the district court’s sentencing findings unless clearly erroneous. Here, the undisputed factual account principally came from the presentence report, which the district court adopted.

United States v. Day, 135 F.4th 1248, 1252 (10th Cir. 2025), quoting United States v. Montano, 109 F.4th 1275, 1280 (10th Cir. 2024), supplied the review framework: legal questions receive de novo review, factual findings receive clear-error review, and the sufficiency of established facts to justify an enhancement is reviewed de novo.

This distinction explains the result. The appellate court did not need to reject the district court’s historical findings. Instead, it held that those findings did not legally establish maintenance.

C. The principal precedents

United States v. Day: temporary premises can qualify, but control matters

United States v. Day was the central comparison. There, the defendant used a short-term rental home to distribute fentanyl pills over ten days. Although someone else rented the property and the defendant did not perform ordinary upkeep, extensive evidence demonstrated control: he stored personal belongings and trafficking materials there, came and went freely, slept there, and was its sole occupant. Officers found narcotics, firearms, ammunition, digital scales, and currency.

The government relied on that decision to argue that Conill-Perez could maintain a room rented by E.B. The court accepted that proposition but rejected the government’s further inference that possession itself sufficed. The earlier decision removed formal rental status as an obstacle; it did not eliminate the need for evidence establishing maintenance.

Conill-Perez’s connection was materially weaker. There was no comparable evidence of occupancy, storage, unrestricted access, or activities within the room. Even inferred occupancy lasted only hours.

United States v. Verners: maintenance is a functional inquiry

United States v. Verners, 53 F.3d 291, 296 (10th Cir. 1995), supplied the broader maintenance factors through the court’s discussion of the statutory counterpart. Its significance lies in directing attention to how a defendant actually relates to a place, rather than merely whose name appears on rental documents.

That functional approach can support an enhancement despite another person’s formal tenancy, but it can also defeat an enhancement where the government proves a nominal connection without meaningful control or continuity.

The hotel-room comparisons

The government also invoked hotel-room cases discussed in the earlier precedent. The court distinguished each because it contained substantially stronger evidence:

• United States v. Owens, No. 21-3898, 2023 WL 2127334, at *1 (8th Cir. Feb. 21, 2023), involved a defendant who “lived” at the premises.
• United States v. Hill, No. 22-5274, 2023 WL 152474, at *3 (6th Cir. Jan. 11, 2023), involved sleeping, bathing, socializing, and storing clothes, drugs, a safe, and cash in the room. The defendant also refused hotel staff entry.
• United States v. Hepburn, 776 F. App’x 649, 650 (11th Cir. 2019), involved both a possessory interest and control over visitors and activities.

These comparisons show that a hotel room can qualify as maintained premises. They do not establish that every room associated with a drug trafficker qualifies. The unpublished authorities served as persuasive comparisons, not controlling Tenth Circuit precedent.

D. Why the evidence failed

The district court relied on Conill-Perez’s hotel entries and exits, his admitted distribution mission, E.B.’s rental assistance, and the paper linking his name to room 210. Those facts established a connection to the hotel and a broader drug-distribution undertaking. They did not sufficiently establish his relationship to the particular room.

The opinion thus separates three propositions: distributing drugs, possessing a room, and maintaining that room. Proof of the first two did not bridge the evidentiary gap concerning the third.

The holding remains fact-specific. The court did not establish a minimum rental period or declare that several hours can never suffice. Nor did it make direct observation of room entry or discovery of drugs indispensable in every case. Rather, brief possession, considered alongside the absence of meaningful control and use evidence, was insufficient here.

5. Analysis: The Older Conviction and Criminal-History Points

A. The Guidelines’ aggregation and timing rules

Section 4A1.1(a) assigns three points for a prior imprisonment sentence exceeding one year and one month. Ordinarily, such an old sentence falls outside the calculation if imposed more than fifteen years before the current offense, unless incarceration extended into that period.

Probation revocations introduce two related calculations under § 4A1.2(k):

1. Sentence length: Add the original imprisonment term to imprisonment imposed upon revocation.
2. Timing: For an adult imprisonment term totaling more than one year and one month, use the date of last release from incarceration on that sentence.

The government treated Conill-Perez’s original probationary sentence as zero imprisonment and added the later 46-month revocation sentence. Because that total exceeded thirteen months, the relevant date was his release from incarceration, in or after 2014. That fell within the lookback period beginning in September 2009.

B. Plain-error review limited the appellate inquiry

United States v. Harbin, 56 F.4th 843, 845 (10th Cir. 2022), quoting United States v. Archuleta, 865 F.3d 1280, 1290 (10th Cir. 2017), supplied the four-part plain-error test. Conill-Perez had to establish an error that was plain, affected substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.

His arguments did not establish a clear or obvious error. The court therefore did not need to resolve the remaining requirements. Its ruling should not be enlarged into an unrestricted merits holding on every possible application of these revocation provisions.

C. The precedents supporting rejection of the challenge

United States v. Coleman

United States v. Coleman, 9 F.3d 1480, 1485 (10th Cir. 1993), applied § 4A1.2(k) to count an older conviction for career-offender purposes where the total imprisonment exceeded one year and one month and the last release occurred within fifteen years. Although arising in the career-offender context, it supported the government’s reliance on aggregate imprisonment and the release date rather than simply the age of the original conviction.

United States v. Wagner and United States v. Woods

Conill-Perez argued that probation is not imprisonment, making the required addition impossible when the original sentence contained no incarceration. He relied on § 4A1.2(b)(1)’s definition of imprisonment and commentary directing courts to add the original imprisonment sentence, “if any,” to the revocation sentence.

The court acknowledged the argument’s facial appeal but explained that zero can represent the absence of an original prison term. United States v. Wagner, 429 F. App’x 596, 601 (6th Cir. 2011), provided persuasive support for that approach.

United States v. Woods, 799 F. App’x 284, 285–86 (5th Cir. 2020), was particularly relevant to the review posture: it rejected the argument that an original probationary sentence precluded application of § 4A1.2(k) as insufficient to establish clear or obvious error. Both decisions were cited for persuasive authority.

United States v. Stuart and United States v. Edwards

The court distinguished the Fourth Circuit authorities offered by Conill-Perez. In United States v. Stuart, 1 F.4th 326, 331 (4th Cir. 2021), the defendant received a single sentence that was initially suspended and later activated. Section 4A1.2(k)(1)’s combination rule did not apply in that setting.

United States v. Edwards, 128 F.4th 562, 566 n.4 (4th Cir. 2025), clarified that the earlier case involved imprisonment suspended in its entirety and no original prison term available for the contemplated combination. Conill-Perez, by contrast, received separate probationary and probation-revocation sentences. Neither authority established that those separate sentences could not be aggregated.

D. Why the original probation date did not control

Conill-Perez separately argued that the absence of initial incarceration required using the original probation date for the fifteen-year calculation. The court rejected that argument because the Guidelines direct attention to the combined sentence. Once that adult imprisonment total exceeds thirteen months, the specified timing reference is the last release from incarceration, not automatically the original sentencing date.

6. Potential Impact

Evidence must connect the defendant to the particular premises

The decision limits enhancement arguments based on proximity and association. Drug dealing near a hotel, lobby surveillance, and a name linked to a room do not necessarily establish maintenance. Future cases will require careful attention to actual occupancy, storage, access, activities, and continuity.

Temporary accommodation remains within the enhancement’s reach

The ruling does not exempt hotels or short-term rentals. Read alongside the precedents, it confirms that duration matters together with control, rather than supplying an independent minimum-stay rule. Likewise, another person’s name on a rental agreement neither automatically defeats nor establishes the enhancement.

Preservation can determine the scope of appellate relief

The two issues illustrate the practical importance of sentencing objections. The preserved enhancement challenge received ordinary review of legal sufficiency. The unpreserved criminal-history challenge required proof of clear or obvious error and failed at that threshold.

Older convictions require examination of later custody

For criminal-history calculations, the original conviction date may not end the inquiry. Later revocation imprisonment and release dates can bring an otherwise old sentence within the applicable lookback period. Accurate sentencing and custody records therefore remain important.

7. Complex Concepts Simplified

Stash-house enhancement

A two-level Guidelines increase for maintaining premises for drug manufacturing or distribution. Despite its nickname, it can apply to places other than houses.

Possession versus maintenance

Possession concerns an interest in or entitlement to use a place. Maintenance asks more broadly whether the defendant’s control and relationship to the place satisfy the guideline.

De novo review

The appellate court independently decides a legal question, without deferring to the district court’s legal conclusion.

Clear-error review

A deferential standard used to review factual findings, rather than reconsidering them from scratch.

Plain error

A demanding standard ordinarily applied when an objection was not raised below. A debatable interpretation alone does not establish a clear or obvious mistake.

Lookback period

The time window used to decide whether an earlier sentence counts toward criminal history. For qualifying revocation imprisonment, the last release date can control.

Downward variance

A sentence below the advisory Guidelines range. The district court’s variance here did not prevent the appellate court from ordering resentencing after identifying the enhancement error.

8. Conclusion

United States v. Conill-Perez establishes an important limit on the drug-premises enhancement: brief possession of a hotel room, accompanied by little or no evidence of control or actual use, does not establish maintenance. The decision preserves the enhancement’s application to temporary premises while requiring evidence directed to the defendant’s relationship with the particular location.

The criminal-history ruling is narrower: counting the older conviction through later revocation imprisonment was not plainly erroneous. Together, the rulings underscore the importance of both an adequate sentencing record and timely objections.