United States of America v. Keith Antonio Barnett

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4557
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEITH ANTONIO BARNETT,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:18-cr-00200-MOC-DSC-1)
Argued: January 27, 2022 Decided: August 30, 2022
Amended: September 1, 2022
Before RICHARDSON, RUSHING, and HEYTENS, Circuit Judges.
Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge
Richardson and Judge Heytens joined.
ARGUED: Richard Croutharmel, Raleigh, North Carolina, for Appellant. Anthony
Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: R. Andrew Murray, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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RUSHING, Circuit Judge:
A jury convicted Keith Antonio Barnett for his role in a drug trafficking conspiracy,
and the district court sentenced him to 276 months in prison. On appeal, his counsel filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), representing that Barnett has
no meritorious grounds for appeal but questioning whether the district court erred by
applying the Sentencing Guidelines’ two-level enhancement for maintaining a premises for
the purpose of drug distribution, see U.S.S.G. § 2D1.1(b)(12). We ordered supplemental
briefing on this issue and held oral argument.
We conclude that the evidence supports the district court’s findings that Barnett and
his coconspirator dealt drugs out of the coconspirator’s home, where they stored and
packaged drugs that Barnett then sold directly outside the home and along the street. The
district court therefore did not clearly err in applying the premises enhancement. Finding
no other meritorious claim in the record, we affirm.
I.
A federal grand jury charged Barnett in a superseding indictment with conspiring to
traffic crack cocaine from 2016 to 2018, see 21 U.S.C. §§ 841(a)(1), 846; distributing crack
cocaine and possessing crack cocaine with intent to distribute on September 22, 2017, see
21 U.S.C. § 841(a)(1), (b)(1)(C); and possessing multiple controlled substances with intent
to distribute on October 9, 2017, see 21 U.S.C. § 841(a)(1). The charges were the result of
an investigation into drug distribution occurring at 2708 South Calvary Street—a house at
the end of a dead-end road in Gastonia, North Carolina (the Calvary Street house).

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At Barnett’s trial, witnesses testified that Barnett’s cousin Rodney Rhodes lived at
the Calvary Street house and the two men worked together selling illegal drugs, including
crack cocaine. A resident of the Calvary Street neighborhood testified that he saw Barnett
at the Calvary Street house “all the time” and he was there with Rhodes “every day.” S.J.A.
241. The resident testified that he personally witnessed Barnett sell crack cocaine on
Calvary Street “[a]t least 12 to 15 times.” S.J.A. 242. A witness who supplied drugs to
Rhodes and Barnett for distribution—and who lived around the corner from the Calvary
Street house—confirmed that Barnett “would frequent” the Calvary Street house. S.J.A.
197. The supplier testified that “about five, six, seven times a day,” Barnett would get in
and out of cars driving through the Calvary Street neighborhood, ostensibly to carry out
drug transactions. S.J.A. 205. He also testified that on a few occasions Barnett retrieved
drugs from the supplier’s house with or on behalf of Rhodes.
A police detective and a government informant both testified about a controlled
purchase of crack cocaine at the Calvary Street house on September 22, 2017. The
informant explained that, earlier in the autumn of 2017, he happened to run into Barnett at
the Calvary Street house when the informant was picking up a child for football practice
and accidentally pulled his car into the wrong driveway. Barnett approached the informant
at the Calvary Street house driveway, gave the informant his phone number, and told him
to call Barnett for drugs. The informant alerted Chad Bingham, a detective with the City
of Gastonia police department. At Detective Bingham’s direction, on September 22 the
informant bought a quarter ounce of crack cocaine from Barnett at the Calvary Street house.
The entire transaction was videorecorded on a hidden camera fastened to the informant.

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Allen Isenhour, a Gaston County detective, testified about the subsequent search of
the Calvary Street house and Barnett’s arrest. Undercover surveillance had revealed
“multiple lookouts up and down” Calvary Street, so a specialized police unit executed the
search warrant. S.J.A. 102. Detective Isenhour recalled that, as police approached the
Calvary Street house on October 9, 2017, he saw Barnett run from the front yard into the
front door of the house and then back out a side door. Before Barnett could escape over a
fence at the edge of the property, he was intercepted by an officer and arrested. Police
found two plastic baggies of drugs behind the fence where Barnett was apprehended.
Detective Isenhour also related that inside the house police discovered 45.2 grams of
powder cocaine, 122.4 grams of crack cocaine, a box of plastic baggies, and digital scales,
all in plain sight.
Before he was indicted by the federal grand jury, Barnett was arraigned in state court
on drug charges. The Gaston County prosecutor who handled Barnett’s initial appearance
in state court testified at his federal trial. He recounted that in the state court proceeding
Barnett had accepted all responsibility for the drugs discovered at the Calvary Street house
and had asserted that Rhodes “had nothing to do with it.” S.J.A. 93.
Barnett testified in his own defense. He disputed the state prosecutor’s recollection
of his statements about who owned the drugs found at the Calvary Street house, denied
selling drugs to the informant, denied fleeing from police or running into the house during
the search, and denied being anywhere near the fence or backyard at the time of his arrest.
Barnett claimed that he knew nothing about the drugs found in the Calvary Street house or

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by the fence, that he had visited the Calvary Street house only three times, and that during
September and October 2017 he was living in a motel in Gastonia.
The jury convicted Barnett on all three counts. At sentencing, Barnett objected to
the proposed two-level enhancement under the Sentencing Guidelines for maintaining a
premises for the purpose of manufacturing or distributing a controlled substance. See
U.S.S.G. § 2D1.1(b)(12). The district court overruled Barnett’s objection. As the court
explained, “plenty of testimony” showed that the Calvary Street house was Barnett’s
“headquarters,” a “thriving business location” where he and Rhodes “operat[ed] their drug
business.” S.J.A. 400, 402. Even if Barnett did not own the house, the court determined,
he nevertheless maintained the premises for drug distribution because the drugs he “was
actively selling” “up and down that street” were stored “in the house.” S.J.A. 400. After
applying two additional sentencing enhancements—for threatening suspected informants
and for obstructing justice by giving false testimony—the district court calculated a
Guidelines sentencing range of 292 to 365 months. Varying downward so as “to not over
punish [Barnett] for the enhancements,” the district court sentenced Barnett to 276 months
in prison. S.J.A. 423.
Barnett timely appealed. His counsel initially filed an Anders brief asserting there
were no meritorious issues for appeal but questioning whether the district court erred by
applying the premises enhancement, applying the obstruction of justice enhancement, and
allegedly double counting the quantity of crack cocaine. Barnett filed over a dozen pro se
briefs raising additional claims. We directed supplemental briefing solely to address
application of the premises enhancement.

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II.
When evaluating a sentencing court’s application of the Guidelines, “we review
‘legal conclusions de novo and . . . factual findings for clear error.’” United States v. White,
771 F.3d 225, 235 (4th Cir. 2014) (quoting United States v. Layton, 564 F.3d 330, 334 (4th
Cir. 2009)). The Government had to prove by a preponderance of the evidence that the
premises enhancement applies. See United States v. Kobito, 994 F.3d 696, 701 (4th Cir.
2021); United States v. Carbajal, 717 Fed. App. 234, 237 (4th Cir. 2018). We may not
reverse the district court’s findings of fact on this score “simply because we would have
decided the case differently.” United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)
(internal quotation marks omitted). Rather, we may find clear error “only if, on the entire
evidence, we are left with the definite and firm conviction that a mistake has been
committed.” Id. (internal quotation marks and alterations omitted). In other words, “[i]f
the district court’s account of the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it.” United States v. Wooden, 887 F.3d 591,
602 (4th Cir. 2018) (internal quotation marks omitted).
The Sentencing Guidelines direct a district court to increase a defendant’s offense
level by two “[i]f the defendant maintained a premises for the purpose of manufacturing or
distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12). According to the
application note, the enhancement applies to a defendant who “[1] knowingly [2] maintains
a premises (i.e., a building, room, or enclosure) [3] for the purpose of manufacturing or
distributing a controlled substance, including storage of a controlled substance for the
purpose of distribution.” U.S.S.G. § 2D1.1 cmt. n.17; cf. United States v. Johnson, 737

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F.3d 444, 447 (6th Cir. 2013) (dividing the enhancement into three elements). On appeal,
Barnett does not quarrel with the district court’s findings about his knowledge of the drug
operation run out of the Calvary Street house, where powder cocaine, crack cocaine, and
drug distribution paraphernalia were undisputedly stored. Instead, Barnett contends that
the Government did not prove that he “maintained” the Calvary Street house.
The application note instructs that, when determining whether the defendant
maintained a premises, the court should consider not only “whether the defendant held a
possessory interest in (e.g., owned or rented) the premises” but also “the extent to which
the defendant controlled access to, or activities at, the premises,” among other unspecified
factors. U.S.S.G. § 2D1.1 cmt. n.17. Barnett argues that the evidence did not prove he
maintained the Calvary Street house for drug distribution because it was Rhodes who
owned and occupied the house, there was no evidence Barnett lived there, and Barnett’s
drug sales occurred outside the house.
None of these facts preclude application of the premises enhancement here. As an
initial matter, Barnett’s lack of possessory interest in the Calvary Street house is not
dispositive. See United States v. Carter, 834 F.3d 259, 262–263 (3d Cir. 2016) (“[T]he
absence of [the defendant’s] name on a deed or lease is insufficient to preclude the
enhancement’s application.”); United States v. Jones, 778 F.3d 375, 385 (1st Cir. 2015)
(“The enhancement does not require either ownership or a leasehold interest.”); see also
United States v. Stukes, 774 Fed. App. 788, 791 (4th Cir. 2019) (affirming application of
the enhancement based on testimony that the defendant “ran a trap house,” despite the
absence of “a documented possessory interest in the house”). Factors other than possessory

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interest are also relevant, including the defendant’s control over the premises or the
activities occurring there. See U.S.S.G. § 2D1.1 cmt. n.17. In making this assessment,
courts have considered factors such as the defendant’s ready access to the premises, staying
overnight, the defendant’s frequency at the premises, and the defendant’s participation in
the drug activity there. See, e.g., Carbajal, 717 Fed. App. at 238–239; United States v.
Clark, 665 Fed. App. 298, 302–303 (4th Cir. 2016); United States v. Christian, 544 Fed.
App. 188, 191 (4th Cir. 2013); Jones, 778 F.3d at 384–385; United States v. Lockhart, 732
Fed. App. 842, 848–849 (11th Cir. 2018).
A finding that certain facts are sufficient to support the premises enhancement in
one case, however, does not mean those facts are necessary in every case. See Carbajal,
717 Fed App. at 238 (citing United States v. Bell, 766 F.3d 634, 637-38 (6th Cir. 2014)).
“[A]pplication of the premises enhancement is a fact-specific inquiry that considers the
totality of the circumstances.” Id. at 237; see Carter, 834 F.3d at 262 (“[T]he enhancement
is flexible and adaptable to a variety of factual scenarios.” (internal quotation marks
omitted)). Thus, if the sum of the evidence supports it, the enhancement can apply in cases,
like here, where the defendant does not live at the premises, see Carbajal, 717 Fed. App.
at 236; Stukes, 774 Fed. App. at 789; Lockhart, 732 Fed. App. at 848, or exercise exclusive
control over it, see Carbajal, 717 Fed. App. at 238–239; Clark, 665 Fed. App. at 301–303;
Jones, 778 F.3d at 385.
The evidence here supported the district court’s finding that Barnett maintained the
Calvary Street house for drug distribution. Barnett claimed ownership of the bulk drugs

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stored inside the house alongside the accoutrements of drug trafficking.1 See, e.g., United
States v. Adams, 860 Fed. App. 290, 292 (4th Cir. 2021) (noting the “distribution level
amount of the drug” found in the house). He frequented the Calvary Street house,
apparently for the primary—if not sole—purpose of accessing the drugs he stored there in
order to portion and sell them, which he did both on the property and up and down Calvary
Street multiple times per day. See Clark, 665 Fed. App. at 303 (considering the defendant’s
“integral participation in the rampant drug activity” occurring at the premises); United
States v. Henderson, 604 Fed. App. 655, 658 (10th Cir. 2015) (considering the defendant’s
drug sales “at or near his residence”). After Barnett encountered the informant in the
driveway of the Calvary Street house, he invited the informant to return to the house to
purchase drugs; Barnett later completed that sale on the premises. See Lockhart, 732 Fed.
App. at 848 (noting that the defendant “invited the undercover agent to the apartment to
sell him narcotics”). When police arrived to execute the search warrant at Calvary Street,
Barnett ran into the house before heading for the fence to make his escape. The district
court did not clearly err in finding by a preponderance of the evidence that these facts
demonstrated Barnett’s access to and control over the Calvary Street house and the drug
distribution business operating there.2
1 We acknowledge that, in his testimony, Barnett disputed this and other evidence
presented at trial. But we must defer to the district court’s credibility determinations on
clear error review. See United States v. Pulley, 987 F.3d 370, 376 (4th Cir. 2021).
2 Because we sustain the district court’s application of the premises enhancement
based on evidence of Barnett’s own conduct in maintaining the Calvary Street house, we
need not address the Government’s alternative argument that the enhancement was proper

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III.
We have reviewed the other two issues in Barnett’s counsel’s Anders brief as well
as the issues Barnett raised in his pro se supplemental briefs. After careful examination in
accordance with Anders, we find no reversible error.3 The judgment of the district court is
AFFIRMED.
based on the conduct of his coconspirator, Rhodes, via the relevant-conduct principles set
forth in U.S.S.G. § 1B1.3(a)(1)(B). See United States v. Rich, 14 F.4th 489, 495–497 (6th
Cir. 2021) (collecting cases and upholding application of the premises enhancement based
on the jointly undertaken activity of the defendant’s coconspirators).
3 Barnett’s claims of ineffective assistance of trial counsel are not cognizable on
direct appeal because the claimed ineffectiveness does not conclusively appear on the face
of the record. See United States v. Faulls, 821 F.3d 502, 507–508 (4th Cir. 2016). Those
claims should be raised, if at all, in a motion under 28 U.S.C. § 2255.

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