United States of America v. Deondrai Allon Tippins

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0741n.06
Case No. 15-1154
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEONDRAI ALLON TIPPINS,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
BEFORE: SUTTON and KETHLEDGE, Circuit Judges; BECKWITH, District Judge.*
SUTTON, Circuit Judge. Charged with an assortment of drug and firearms crimes,
Deondrai Tippins asked the government for a plea bargain. The government offered one,
warning him that, if the plea bargaining failed, it would seek additional charges in a new
indictment. When Tippins rejected the offer, the government did just that, and the jury
ultimately convicted Tippins of one of the new charges. Tippins claims that the government
engaged in vindictive prosecution and that the district court improperly enhanced his sentence.
We disagree and affirm.
Michigan police suspected that Tippins was engaged in drug dealing. A confidential
informant visited Tippins’ home multiple times, talked to him about drug prices and quantities,
* The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern District of Ohio,
sitting by designation.

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and saw him packaging heroin, marijuana, and cocaine in the home’s utility room. After that, the
police set up a controlled drug buy. On June 26, 2013, the confidential informant went to
Tippins’ home—his utility room to be more precise—and purchased 1.32 grams of crack
cocaine. The next day, the police executed a search warrant of the home, where they found
heroin, marijuana, and cocaine. They also discovered various tools for preparing and packaging
the drugs, including razor blades, bags, scales, and baking soda. To top it off, the police found
firearms in the home, and Tippins had a pistol in his pants pocket when the police arrested him.
A grand jury indicted Tippins on August 14, 2013, and issued a superseding indictment on
September 25, 2013.
On February 12, 2014, a grand jury issued a second superseding indictment, charging
Tippins with three crimes: (1) being a felon in possession of a firearm, (2) possessing with intent
to distribute cocaine base, and (3) carrying a firearm during a drug-trafficking crime. See
18 U.S.C. § 922(g)(1); 21 U.S.C. § 841(a)(1), (b)(1)(C); 18 U.S.C. § 924(c)(1)(A).
The government also could have charged Tippins with distributing cocaine base but chose not to
do so because that would require the confidential informant to testify at trial about the controlled
buy. As to that possibility, the government was concerned that Tippins had threatened to harm
the informant (if Tippins could figure out who he was) and did not want to make the name of the
informant public.
On April 28, 2014, during an interview with the government, the confidential informant
remembered that Tippins had carried a revolver during the controlled buy. The next day, the
government told Tippins about this new information. At Tippins’ request, the government
extended a plea offer. That same day, the government warned Tippins in writing that, if plea
bargaining failed, the government would charge Tippins with two additional counts stemming

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from the controlled buy: distributing cocaine base and carrying a firearm during a drug-
trafficking crime. On May 2, Tippins rejected the plea offer. Four days later, on May 6, Tippins
changed his mind and the government sent him a written plea agreement. On May 7, Tippins
changed his mind again and refused to sign the plea agreement. The government told Tippins it
would seek additional charges. On May 14, the government obtained a third superseding
indictment. The grand jury charged Tippins with the same three counts from the previous
indictment (with a slight alteration) and added the two new charges. See 21 U.S.C. § 841(a)(1),
(b)(1)(C); 18 U.S.C. § 924(c)(1)(A).
The jury convicted Tippins on four of the five counts, returning a not-guilty verdict on
one of the two charges of carrying a firearm during a drug-trafficking crime. The judge
sentenced Tippins to 147 months in prison—at the low end of the guidelines range.
On appeal, Tippins makes two arguments: (1) the district court erred when it refused to
dismiss the third superseding indictment for vindictive prosecution, and (2) the district court
erred in applying the enhancement for maintaining a premises for drug distribution, U.S.S.G.
§ 2D1.1(b)(12).
Vindictive prosecution. Tippins says that the government filed the third superseding
indictment for vindictive reasons, namely that he refused to accept the plea deal. That is not an
everyday charge. It requires “objective evidence that [the] prosecutor acted in order to punish
[the defendant] for standing on his legal rights,” a “difficult” showing to make. Bragan v.
Poindexter, 249 F.3d 476, 481 (6th Cir. 2001). We review the district court’s rejection of the
argument for abuse of discretion. United States v. Moon, 513 F.3d 527, 534 (6th Cir. 2008).
Proof of the government’s vindictiveness, Tippins maintains, comes from the timing of
the final indictment, which added two charges after the plea bargaining failed. But Supreme

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Court precedent permits just this kind of sequence of events. “[I]n the ‘give-and-take’ of plea
bargaining, there is no . . . element of punishment or retaliation” when a prosecutor threatens to
charge additional behavior if bargaining fails, “so long as the accused is free to accept or reject
the prosecution’s offer.” Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). The problem for
Tippins is that the government gave him difficult choices, not improper choices. “When the
pretrial addition of more serious charges results merely from the failure of the plea bargaining
process, it is not vindictive prosecution.” United States v. Walls, 293 F.3d 959, 970 (6th Cir.
2002); see United States v. LaDeau, 734 F.3d 561, 569 (6th Cir. 2013); United States v. Suarez,
263 F.3d 468, 479 (6th Cir. 2001). It does not matter that the government was “fully aware of
the facts and circumstances,” as Tippins argues, see Appellant’s Br. 22, on which the late-added
charges were based long before it sought the third superseding indictment, see Bordenkircher,
434 U.S. at 359. In situations like this one, “an additional charge entered after a failed plea
bargain cannot . . . form the substance of a viable vindictive prosecution claim.” United States v.
DeJohn, 368 F.3d 533, 545 (6th Cir. 2004). This claim fails.
Sentencing enhancement. The district court added two levels to the guidelines range on
the ground that Tippins “maintained a premises for the purpose of manufacturing or distributing
a controlled substance.” U.S.S.G. § 2D1.1(b)(12). No error occurred.
As we have explained, the enhancement “applies to anyone who (1) knowingly (2) opens
or maintains any place (3) for the purpose of manufacturing or distributing a controlled
substance.” United States v. Johnson, 737 F.3d 444, 447 (6th Cir. 2013). All that matters here
are the second and third elements. Tippins concedes the first.
As to the second element, Tippins “maintained” the home in which his drug dealing was
based. The application note provides a non-exhaustive list of factors regarding maintenance,

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including: (1) “whether the defendant held a possessory interest in (e.g., owned or rented) the
premises” and (2) “the extent to which the defendant controlled access to, or activities at, the
premises.” U.S.S.G. § 2D1.1 cmt. n.17. Although Tippins did not have “a possessory interest”
in the relevant home (apparently his girlfriend held the title), he did “control[] access to” and
“activities at” the home. Id. He resided there for two years, was largely unemployed, and used
the home as the base for his drug distribution. He also was one of two people who controlled
access to the utility room, which is where Tippins packaged and dealt drugs and where the police
found much of the evidence of drug distribution. Tippins’ residence at the home, control of the
premises, and use of the home for drug distribution all indicate that he “maintained” the
premises. See United States v. Murillo-Almarez, 602 F. App’x 307, 312 (6th Cir. 2015); see also
United States v. Jones, 778 F.3d 375, 385 (1st Cir. 2015); United States v. Miller, 698 F.3d 699,
706 (8th Cir. 2012).
As to the third element, Tippins maintained the home “for the purpose of” manufacturing
and distributing controlled substances. “Manufacturing or distributing a controlled substance
need not be the sole purpose . . . but must be one of the defendant’s primary or principal uses for
the premises.” U.S.S.G. § 2D1.1 cmt. n.17 (emphasis added). A single “room” may constitute
“a premises” under this guideline. Id.; see Johnson, 737 F.3d at 447. And because a home may
have many key purposes, a court may apply the enhancement to a defendant who lives in the
home and deals drugs from it. See United States v. Bell, 766 F.3d 634, 638 (6th Cir. 2014).
Several facts supported this element of the enhancement. The confidential informant had
“visited [Tippins] at the house on at least six occasions where he observed [Tippins] handling
drugs for distribution,” R. 54 at 12, and the home contained various items often used for drug
distribution. Drugs, many of them “prepackaged for distribution,” were stashed throughout the

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home, id., showing “storage of a controlled substance for the purpose of distribution,” U.S.S.G.
§ 2D1.1 cmt. n.17. Tippins apparently engaged in manufacturing there too, because the evidence
indicates that he “cooked” cocaine in the home. R. 50 at 12. Drug distribution and
manufacturing were two of Tippins’ key uses for the utility room of the home. That satisfies the
guideline.
Tippins points to two cases in which we applied the enhancement and in which eligibility
for the enhancement was far more obvious (given the amount of drugs involved) than it is here.
But we do not decide whether this guideline applies based solely on the amount of drugs and
contraband seized, as Tippins suggests. The cases at any rate do not help Tippins even on their
own terms. In United States v. Johnson, we held that the guideline applied because “Johnson
maintained at least one room in his home for the purpose of storing marijuana for later
distribution.” 737 F.3d 444, 447 (6th Cir. 2013) (emphasis added). And United States v. Bell
parallels today’s case. There, we upheld application of the enhancement when (1) Bell was
unemployed except for cooking and selling cocaine in his home, (2) various drug-packaging
tools were found in the home, and (3) the home contained unregistered firearms. 766 F.3d 634,
636–37 (6th Cir. 2014). Johnson and Bell support rather than cut against our holding.
For these reasons, we affirm.

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