December 13, 2016
from the United States District Court for the Western
District of Wisconsin. Nos. 01-cr-9-bbc-3 &
3:15CR00081-001 Barbara B. Crabb, Judge.
Posner, Kanne, and Sykes, Circuit Judges.
consolidated appeals raise a single issue: whether the
district court erred by adjusting Paul Win-field's
offense level upwards based on the court's finding that
Winfield "maintained" his apartment for
distributing controlled substances, see U.S.S.G.
§ 2D1.1(b)(12). Winfield argues that the guideline
doesn't apply here because drug dealing was not among his
"primary or principal" uses for the apartment,
see U.S.S.G. § 2D1.1 cmt. n.17. We disagree and
affirm the district court's judgments.
police informant bought heroin and methamphetamine from
Winfield during four controlled buys conducted over a
twelve-week period. For the buys, all of which occurred at
Winfield's apartment, the informant wore a hidden video
camera. The camera recorded little useful video, but it did
clearly capture the informant's conversations with
the first controlled buy, the informant purchased 3 grams of
heroin and reported seeing "a few ounces" of
suspected heroin that Winfield had retrieved from a plastic
container hidden behind a television.
later, Winfield met the informant in a parking lot and asked
the informant to follow him home, explaining that he needed
to make a "drop" on the way. Winfield then sold the
informant 3½ grams of heroin and gave the informant a
sample of a substance he said contained ecstasy (later
analysis showed that it actually contained methamphetamine).
The video of this meeting shows two ounces of suspected
heroin, a digital scale, and cash on a kitchen counter.
third buy took place the following month when Winfield sold
the informant another 3½ grams of heroin and a gram of
"ecstasy" (again, it actually contained
methamphetamine). The informant reported seeing about two
ounces of heroin on a plate in the kitchen and an ounce of
"ecstasy" hidden in an aerosol can with a hidden
month later, Winfield sold the informant 2 grams of heroin
and 5 grams of a substance containing methamphetamine (not
ecstasy, as promised). Winfield retrieved the drugs from the
aerosol can, and the informant said he saw about 60 grams of
heroin and 30 grams of "ecstasy."
days after this last buy, the police obtained a warrant and
searched Winfield's apartment. They found almost $3000 in
a closet, and a gram of heroin and drug paraphernalia in
Winfield's girlfriend's purse. In the garage, stashed
in the trunk of Winfield's car (in a brake-fluid canister
that had a hidden compartment), the police also found 27
grams of methamphetamine and 38 grams of heroin.
a post-arrest interview, Winfield admitted that the police
had not found more drugs in the apartment because "[h]e
had flushed anything he had down the toilet when the SWAT
team was approaching."
jury charged Winfield with distributing heroin and
methamphetamine, possessing both drugs with intent to
distribute, and maintaining a place for the purpose of
distributing controlled substances, see 21 U.S.C.
§§ 841(a)(1), 856(a)(1). Winfield pleaded guilty to
one count of distributing heroin, and the government dropped
the other counts.
sentencing, a probation officer recommended that Winfield
receive a two-level upward adjustment because he
"maintained a premises for the purpose of manufacturing
or distributing a controlled substance, " U.S.S.G.
§ 2D1.1(b)(12). The officer explained that this
"stash house" guideline was appropriate because
each of the four controlled buys had occurred at
Winfield's apartment, and in his garage the police had
found drugs. Winfield objected, arguing that this evidence
did not support an inference that drug dealing was ...