United States of America v. Benjamin Valdez, also known as Ben

United States Court of Appeals
For the Eighth Circuit
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No. 21-3727
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United States of America
Plaintiff - Appellee
v.
Benjamin Valdez, also known as Ben
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
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Submitted: January 13, 2023
Filed: June 2, 2023
[Unpublished]
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Benjamin Valdez pleaded guilty to one count of distributing more than five
grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(viii), and the district court1 imposed a sentence of 262 months’
1 The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

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imprisonment. Valdez appeals, asserting that the district court erred in applying a
two-level enhancement for maintaining a drug premises.
The Guidelines provide for a two-level enhancement if “the defendant
maintained a premises for the purpose of manufacturing or distributing a controlled
substance.” United States Sentencing Guidelines § 2D1.1(b)(12) (2018) (emphasis
added). For the enhancement to apply, manufacturing or distributing drugs “need
not be the sole purpose for which the premises was maintained,” but it must be one
of the “primary” uses, rather than an “incidental or collateral” use. USSG § 2D1.1,
comment. (n.17); see also United States v. Hernandez Lopez, 24 F.4th 1205, 1208
(8th Cir. 2022).
Valdez argues that there is insufficient evidence to support the application of
the enhancement. Specifically, he challenges the district court’s finding that he used
a “shop” building located at his family residence in Paris, Arkansas, for the
“primary” purpose of distributing methamphetamine.2 We review for clear error a
district court’s factual findings supporting an enhancement for maintaining a drug
premises under § 2D1.1(b)(12). Hernandez Lopez, 24 F.4th at 1208. We will
reverse only if, upon review of the entire evidence, we are “left with the definite and
firm conviction that a mistake has been committed.” United States v. Perry, 437
F.3d 782, 786 (8th Cir. 2006) (citation omitted).
We conclude the district court did not clearly err. The record shows that
Valdez conducted drug transactions and stored methamphetamine inside the shop.
During two controlled buys, Valdez sold methamphetamine to a confidential
informant (CI) inside the shop. And during one of those buys, Valdez expressly
2 Valdez does not challenge on appeal the district court’s finding that he had a
possessory interest in and controlled access to the shop. See United States v. Anwar,
880 F.3d 958, 971 (8th Cir. 2018) (explaining that to “determine whether a defendant
maintained a [drug] premises,” a court must consider “whether the defendant had a
possessory interest in the premises and the extent to which the defendant controlled
access to, or activities at, the premises” (citation omitted)).

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instructed the CI to “come to his shop in Paris” to retrieve the drugs. Officers
conducting surveillance also heard Valdez in the shop discussing a
methamphetamine sale to an interested buyer. And a confidential source—who
reported obtaining methamphetamine from Valdez for many years—informed
officers that Valdez stored both methamphetamine and cash at the shop. See USSG
§ 2D1.1(b)(12), comment. (n.17) (providing that the drug-premises enhancement
applies when premises are maintained for “storage of a controlled substance for the
purpose of distribution”); cf. Hernandez Lopez, 24 F.4th at 1208 (concluding district
court did not err by applying the enhancement where “evidence established [the
defendant] stored methamphetamine in the basement”).
While Valdez contends that application of the enhancement was improper
because no drugs were found during a search of the shop and because he conducted
his drug activities at additional locations other than the shop, we are unpersuaded.
See United States v. Armstrong, 60 F.4th 1151, 1169 (8th Cir. 2023) (“That officers
were unable to recover an appreciable quantity of drugs from the premises during
their investigation does not convince us that a premises enhancement was
improper.”); Anwar, 880 F.3d at 965, 971–72 (affirming application of enhancement
based on evidence of drug activities at one store, even though defendant also
conducted drug activities at other locations). On this record, we cannot say the
evidence supporting the district court’s finding is so lacking that reversal is
appropriate. See Perry, 437 F.3d at 786.
The judgment of the district court is affirmed.
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