USA v. McKinley

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA 	CRIMINAL ACTION
VERSUS 	No. 25-129
QUINCEY MCKINLEY 	SECTION I
ORDER & REASONS
Defendant Quincey McKinley (“McKinley”) lodged four objections 1 to the
Presentence Investigation Report (“PSR”). 2 The government timely filed a response
in opposition, 3 and McKinley filed a supplemental memorandum in support of his
objections. 4 Having considered the parties’ briefs and the controlling caselaw, the
Court OVERRULES McKinley’s objections.
I. 	BACKGROUND
On November 14, 2025, McKinley pleaded guilty to a two-count superseding
bill of information, which charged him with one count of possession with intent to
distribute 	controlled 	substances, 	in 	violation 	of 	21 	U.S.C. 	§§ 841(a)(1) 	and
841(b)(1)(C), and one count of felon in possession of firearms, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(8). 5
The PSR recommends a four-level “Chapter Four Enhancement” pursuant to
U.S.S.G. § 4B1.1 (“career offender enhancement”), a two-level enhancement pursuant
1 R. Doc. No. 42.
2 R. Doc. No. 44.
3 R. Doc. No. 49.
4 R. Doc. No. 52.
5 R. Doc. Nos. 32 (Notice of Rearraignment Hearing), 33 (Superseding Bill of
Information).
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to U.S.S.G. § 2D1.1(b)(1) for possessing a firearm, and a two-level enhancement
pursuant to § 2D1.1(b)(12) for maintaining a premises for drug trafficking or
manufacturing. 6
McKinley first objects to the application of the career offender enhancement
pursuant to U.S.S.G. § 4B1.1(b). 7 Specifically, he objects to his 1997 state drug
conviction being counted toward the career offender enhancement because: first, he
contends that “there is insufficient evidence proving that he served any portion of a
term of imprisonment for his 1997 drug conviction within fifteen years of the
commencement of the instant offense;” 8 and second, he argues that his 1997 state
drug conviction is “categorically broader” than the federal Controlled Substances Act
(“CSA”) and, therefore, cannot serve as one of the two prior convictions necessary to
support the enhancement. 9 McKinley similarly objects to the assessment of criminal
history points for his 1997 drug conviction, pursuant to U.S.S.G. § 4A1.1(a), because
he argues that there is insufficient evidence to support that the conviction falls within
the fifteen-year window set forth in U.S.S.G. § 4A1.2(e). 10
Finally, 	McKinley 	objects 	to 	the 	application 	of 	the 	enhancement 	in
§ 2D1.1(b)(12), which applies a two-level increase if the defendant “maintained a
premises for the purpose of manufacturing or distributing a controlled substance.”
The Court will address McKinley’s objections in turn.
6 R. Doc. No. 44, at 9–10.
7 R. Doc. No. 42, at 2.
8 Id.
9 Id. at 3.
10 Id.
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II. 	LAW & ANALYSIS
a. 	McKinley’s 1997 offense falls within the fifteen-year period for
assessing criminal history or application of the career criminal
enhancement
For purposes of assessing criminal history points, § 4A1.2(e)(1) counts “any
prior sentence of imprisonment exceeding one year and one month that was imposed
within fifteen years of the defendant’s commencement of the instant offense.” Also
counted is “any prior sentence of imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being incarcerated during any part
of such fifteen-year period.” U.S.S.G. § 4A1.2(k) further explains that “revocation of
probation, parole, supervised release, special parole, or mandatory release may affect
the time period under which certain sentences are counted.” Id. (cleaned up). For
example, in cases of “an adult term of imprisonment totaling more than one year and
one month, the date of last release from incarceration on such sentence” is used. Id.
The 	application 	notes 	to 	§ 4B1.1 	explain 	that 	these 	provisions 	also 	apply 	for
determining 	which 	convictions 	count 	for 	application 	of 	the 	career 	criminal
enhancement. See § 4B1.2 cmt. n. 3; see also United States v. Rudolph, 103 F.4th 356,
361 (5th Cir. 2024) (“To make a career offender designation, the Government must
show that the defendant’s two prior felony convictions were ‘imposed within fifteen
years of the defendant’s commencement of the instant offense.’” (citing § 4A1.2(e)(1)).
Two of McKinley’s objections involve whether his 1997 conviction falls within
this fifteen-year period and, therefore, may be “counted” toward assessment of
criminal history points, § 4A1.1, and the career offender enhancement, § 4B1.1.
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The PSR states that McKinley was released on parole for the 1997 cocaine
conviction, for which he received a fifteen-year sentence, on March 28, 2003. 11 It also
states that McKinley’s parole was revoked on February 23, 2006, and that he was
again released on parole on May 14, 2010. 12 According to the PSR, his parole expired
as to this conviction on April 6, 2014. 13
In addition to this conviction, the PSR includes a conviction for possession of
cocaine to which McKinley pleaded guilty and received four years of imprisonment on
April 30, 2007. 14 As to this conviction, the PSR reports that McKinley was released
on parole on May 14, 2010, and that his parole expired on April 6, 2014. 15
McKinley argues that there is insufficient evidence to support the PSR’s
conclusion that he was in custody as a result of the 1997 conviction within the
relevant fifteen-year look-back period. 16 According to McKinley, the records attached
to the PSR do not establish “that any incarceration after November 2009 was legally
attributable to the 1997 conviction rather than to Mr. McKinley’s intervening 2007
possession-of-cocaine 	conviction.” 17 	Because 	the 	2007 	conviction 	“independently
authorized incarceration and supervision extending through at least May 14, 2010,”
there exists in the PSR a “material ambiguity as to which conviction actually drove
11 R. Doc. No. 44 ¶ 41.
12 Id.
13 Id.
14 Id. ¶ 44.
15 Id.
16 See R. Doc. No. 33 (indicating that the charged conduct for the instant offense began
in November 2024); see also R. Doc. No. 42, at 2 (arguing that “the relevant fifteen-
year look-back period extends only to November 2009”).
17 R. Doc. No. 42, at 5.
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Mr. McKinley’s custody status after November 2009.” 18 Absent evidence “attributing
post-2009 incarceration specifically to the 1997 conviction,” McKinley submits that
the government has failed to meet its burden of establishing that the 1997 conviction
may be counted toward the career offender enhancement or for criminal history
points. 19
McKinley cites the Fifth Circuit’s decision in United States v. Rudolph, 103
F.4th 356 (5th Cir. 2024), in support of his position. In Rudolph, the Fifth Circuit
found that the district court clearly erred when it adopted a fact contained in a PSR
for which no records were presented in support. Id. at 361. The facts of Rudolph are
similar to the issue before this Court.
The defendant in Rudolph objected to the PSR’s application of the career
offender enhancement when based, in part, on a 1996 drug conviction, arguing that
such conviction should not be counted because it fell outside of the fifteen-year
window articulated in § 4A1.2(e). The PSR had determined that the 1996 drug
conviction counted because the defendant’s parole had been revoked on August 19,
2004, which, based on § 4A1.2(k), was sufficient to place the 1996 drug conviction
within the fifteen-year window.
The probation officer who authored the PSR “provided nothing more than the
assertion that ‘court records’ supported her claim” that the defendant’s parole
associated with his 1996 conviction had been revoked in 2004. Id. at 359. “[N]o records
18 Id. at 6.
19 See id. at 6–7; id. at 6 (“At most, the records show that Mr. McKinley was in custody
or under supervision during overlapping timeframes, which is insufficient.”).
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were presented to the district court in support of that assertion.” Id. at 361. The
defendant denied the claim that his parole had been revoked but provided no evidence
in support of his denial. See id. Despite the lack of evidence supporting the claim in
the PSR, the district court in Rudolph ultimately determined that the PSR was
accurate. Id. at 360.
The Fifth Circuit held that the district court clearly erred, because it found
that the government did not meet its burden of proving by a preponderance of the
evidence that the 1996 conviction counted for the career offender enhancement. Id.
at 361. It emphasized that although “generally, a PSR bears sufficient indicia of
reliability to permit the sentencing court to rely on it at sentencing,” the “mere
inclusion in the PSR does not convert facts lacking an adequate evidentiary basis
with sufficient indica of reliability into facts a district court may rely upon at
sentencing.” Id. at 360–61 (citing United States v. Ayala, 47 F.3d 688, 690 (5th Cir.
1995) and United States v. Melendez, 57 F.4th 505, 509 (5th Cir. 2023)). Moreover, it
was sufficient for the defendant in Rudolph to “alert the district court to questions
regarding the reliability of the evidentiary basis for the facts contained in the PSR;”
he did not need to present independent rebuttal evidence. Id. at 361 (quoting United
States v. Harris, 702 F.3d 226, 231 n.3 (5th Cir. 2012)). It held:
The “fact” that Rudolph was revoked in 2004 for his 1996 drug conviction
does not have an adequate evidentiary basis, and, therefore, the district
court should not have adopted this “fact” [in the PSR] as true.
. . .
The district court determined Rudolph’s base offense level by relying on
a bare assertion, unsupported by any other evidence, that he was
incarcerated in 2004 as a result of a parole revocation on his 1996 drug
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conviction. Therefore, despite Rudolph’s failure to present rebuttal
evidence, the Government failed to provide an adequate evidentiary
basis with sufficient indicia of reliability to support its claim. The
district court’s adoption of this fact and application of the career offender
enhancement was clear error.
Id. at 361–62.
Notably, as is true for McKinley, the subject PSR in Rudolph listed “similar
parole revocation information” for a separate charge; the PSR reflected that the
defendant’s parole was also revoked on August 19, 2004, with respect to a separate,
non-qualifying manslaughter conviction. Id. at 361.
When the government tried to cure the evidentiary deficiency on appeal with
supplemental records from the Louisiana Department of Probation and Parole, the
Fifth Circuit still found that the evidence was “inconclusive,” without additional
“interpretation, explanation, or extrapolation.” Id. at 362. According to the Fifth
Circuit, the supplemental records merely “track[ed] Rudolph’s whereabouts within
the 	Louisiana 	Department 	of 	Corrections” 	and 	provided 	that 	“Rudolph 	was
incarcerated for various years.” Id. Missing from the supplemental records was
evidence “clearly attribut[ing] [the defendant’s] incarceration to the 1996 conviction.”
Id.
The government does not address McKinley’s invocation of Rudolph but,
instead, provides supplemental records from the Louisiana Department of Probation
& Parole, which seem to include information about McKinley’s physical location and
dates of sentencing. 20
20 See R. Doc. No. 49-1.
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It also argues that McKinley’s position “does not align with Louisiana law,”
because, pursuant to Louisiana Revised Statute 15:574.10, should a defendant be
convicted of a felony while on parole:
his parole shall be deemed revoked as of the date of the commission of
the felony or such offense under the laws of the other jurisdiction. . . .
The term for which the defendant shall be imprisoned as a parole
violator shall be the same as that provided in cases of revocation of
parole for violation of the conditions of parole. The new sentence of
imprisonment shall be served consecutively to the term of imprisonment
for violation of parole unless a concurrent term of imprisonment is
directed by the court. 21
Furthermore, 	the 	government 	directs 	the 	Court 	to 	Louisiana 	Revised 	Statute
15:574.6, which states that a defendant’s parole term “shall be for the remainder of
the offender’s sentence.” According to the government, the proper conclusion to derive
from theses statutes, McKinley’s incarceration records, and the PSR is that the 2007
cocaine conviction sentence obtained while he was on parole for his 1997 conviction
“was ordered to be run concurrently to his parole revocation time, and ultimately
[McKinley] was released from incarceration, for both his 1997 and 2007 convictions,
on May 14, 2010.” 22 To accept McKinley’s position, argues the government, would
mean to accept that his 1997 sentence ended when his parole was revoked, which
“does not align with Louisiana law.” 23
21 R. Doc. No. 49, at 5.
22 Id.
23 See id.
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On April 1, 2026, the Court heard from the Custodian of Records for the
Louisiana 	Department 	of 	Public 	Safety 	and 	Corrections, 	who 	gave 	testimony
regarding the records provided by the government.
The Court agrees with the government. Louisiana Revised Statute 15:574.4.2
states, in relevant part: “[i]f parole is revoked for any reason . . . the parolee shall
serve the remainder of the sentence as of the date of release on parole.” Coupled with
Louisiana Revised Statute 15:574.10, it is clear that a person convicted of a felony
while on parole will have their parole revoked and be ordered to serve the remainder
of their originally imposed sentence.
According to the PSR, McKinley’s 1997 cocaine conviction resulted in a fifteen-
year sentence of imprisonment. 24 The records attached to the PSR support that his
parole was revoked with respect to this conviction on February 23, 2006. 25 Pursuant
to Louisiana law, McKinley must have been ordered to serve the remainder of his
fifteen-year sentence, unless and until he was again released on parole, which, in his
case, did not occur until May 14, 2010. 26 Because McKinley must have been
incarcerated as a result of the revocation of his parole with respect to the 1997
conviction, the fact that the 2007 conviction, the likely impetus for the parole
revocation, has an identical parole release date supports the conclusion that the
terms of imprisonment were served concurrently. See La. Rev. Stat. 15:574.10.
Furthermore, even if his 2007 sentence ran consecutively to the remainder of his 1997
24 R. Doc. No. 44 ¶ 40.
25 Id., see also id. at 33.
26 Id. ¶ 40.
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sentence, 27 there was sufficient time left with respect to McKinley’s 1997 sentence to
indicate that after his parole was revoked, he was still imprisoned for his 1997
conviction until May 14, 2010.
The ambiguity in Rudolph does not exist here. In Rudolph, the defendant was
sentenced to only five years on his 1996 qualifying drug conviction. Rudolph, 103
F.4th at 359. Consequently, his 2004 conviction would not necessarily have resulted
in revocation and, relatedly, incarceration; his 1996 sentence term would likely have
expired in 2001. Id. at 361. Absent evidence indicating that the 2004 conviction
actually resulted in revocation of his 1996 conviction, the fact that he was convicted
in 2004 was insufficient to demonstrate that any period of incarceration thereafter
was attributable to the 1996 conviction. Id. at 360–63.
In contrast, McKinley’s 2007 conviction falls squarely within the fifteen-year
sentence term imposed with respect to his 1997 conviction. Meaning, pursuant to
Louisiana law, his parole would have been revoked for “the remainder of his
sentence.” 	La. 	Rev. Stat. 	15:574.4.2, 15:574.10. 	More 	importantly, 	the 	records
indicate his parole was in fact revoked with respect to his 1997 conviction on February
23, 2006 28 and indicate that he was incarcerated prior to his 2007 conviction. 29 The
Custodian of Records’ testimony explaining the meaning of the records is consistent
with the government’s position that McKinley was incarcerated until May 14, 2010,
27 See supra note 32 and accompanying text (“The new sentence of imprisonment shall
be served consecutively to the term of imprisonment for violation of parole unless a
concurrent term of imprisonment is directed by the court.”).
28 See R. Doc. No. 49-1, at 7.
29 Id. at 11.
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because of the revocation of his 1997 conviction. 30 The Court therefore finds that the
government has met its burden of demonstrating by a preponderance of the evidence
that McKinley was incarcerated, at least partially, because of his 1997 cocaine
conviction revocation within the fifteen-year lookback period. Accordingly, this
conviction may serve as a predicate for application of the § 4B1.1 career offender
enhancement. McKinley’s objection is overruled.
b. 	McKinley has not satisfied the realistic probability test with respect
to the § 4B1.1(a) career offender enhancement
McKinley 	argues 	that 	he 	is 	not 	a 	career 	offender, 	as 	contemplated 	by
§ 4B1.1(a), because his 1997 cocaine conviction is “categorically broader” than the
current CSA and, therefore, cannot count toward the career offender enhancement. 31
Specifically, McKinley argues that Louisiana state law in 1997 criminalized a broader
swath of conduct than the current CSA because “Louisiana’s definition of cocaine and
related substances [in 1997] included the cocaine-derivative substance Ioflupane,
which the CSA expressly excludes from its definition of those same substances.” 32
The government responds that notwithstanding whether McKinley’s state
conviction is facially broader than the CSA, he is also required to satisfy the “realistic
probability test.” 33 Because McKinley “has presented no cases or examples of the
State of Louisiana prosecuting a defendant for Ioflupane,” the government argues
30 See also id. at 7–11.
31 See R. Doc. No. 42, at 8.
32 Id. at 11.
33 R. Doc. No. 49, at 3.
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that he has failed to satisfy the realistic probability test and the enhancement is
therefore warranted. 34
McKinley does not address the government’s argument in his reply. Nor does
he otherwise provide additional support for this objection. 35
The Court agrees that “a prior conviction cannot serve as a predicate offense”
for purposes of a § 4B1.1 enhancement if it “criminalizes a greater swath of conduct
than the elements of the relevant Guidelines offense.” United States v. Minor, 121
F.4th 1085, 1089 (5th Cir. 2024) (citations omitted) (cleaned up). However, the Court
also agrees with the government that “[w]hen the prior convictions are state
offenses,” the defendant must overcome the “additional wrinkle” of the “realistic
probability test.” United States v. Edmond, No. 24-30255, 2025 WL 2017287, at *2
(5th Cir. July 18, 2025).
Application 	of 	the 	realistic 	probability 	test 	requires 	that 	the 	defendant
establish “a realistic probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic definition of the crime.” Id.
(quoting United States v. Castillo-Rivera, 853 F.3d 218, 222 (5th Cir. 2017)). “To show
a realistic probability, an offender . . . must at least point to his case or other cases in
which the state courts in fact did apply the statute in the special (nongeneric) manner
for which he argues.” Id. (quoting Castillo-Rivera, 853 F.3d at 22 (citation omitted)
(cleaned up)).
34 Id.
35 See generally R. Doc. No. 52.
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McKinley has made no attempt to demonstrate that Louisiana ever enforced
Louisiana Revised Statute § 40:964, Schedule II(A)(4), against a defendant for
Ioflupane 36 and, therefore, he has failed to establish that his 1997 cocaine conviction
cannot, as a matter of law, serve as a predicate offense for the career criminal
enhancement. Cf. id. Accordingly, this objection is overruled.
c. 	Maintenance of a premises for purposes of manufacturing or
distributing a controlled substance, § 2D1.1(b)(12)
The 	PSR 	applies 	a 	two-level 	enhancement 	pursuant 	to 	U.S.S.G.
§ 2D1.1(b)(12), 37 which applies a two-level increase “if the defendant maintained a
premises for the purpose of manufacturing or distributing a controlled substance.”
The corresponding application note to § 2D1.1(b)(12) states:
Among the factors the court should consider in determining
whether the defendant “maintained” the premises are (A) whether the
defendant held a possessory interest in (e.g., owned or rented) the
premises and (B) the extent to which the defendant controlled access to,
or activities at, the premises.
Manufacturing or distributing a controlled substance need not be
the sole purpose for which the premises was maintained, but must be
one of the defendant’s primary or principal uses for the premises, rather
than one of the defendant’s incidental or collateral uses for the premises.
In making this determination, the court should consider how frequently
the 	premises 	was 	used 	by 	the 	defendant 	for 	manufacturing 	or
distributing a controlled substance and how frequently the premises
was used by the defendant for lawful purposes.
§ 2D1.1(b)(12), 	application 	note 	17. 	“The 	Government 	has 	the 	burden 	of
demonstrating by a preponderance of the evidence the facts necessary to support a
36 See R. Doc. Nos. 42, 52.
37 R. Doc. No. 44 ¶ 31.
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Guidelines enhancement.” United States v. Le, 126 F.4th 373, 378–79 (5th Cir. 2025)
(quoting United States v. Abrego, 997 F.3d 309, 312 (5th Cir. 2021)). “A district court’s
application of § 2D1.1(b)(12) is a factual finding reviewed for clear error.” United
States v. Haines, 803 F.3d 713, 744 (5th Cir. 2015).
The PSR explains that the enhancement was applied because McKinley
“routinely directed the confidential informant to meet him . . . at 505 Ashlawn Street
to conduct controlled purchases.” 38 At least three such instances, on October 23,
October 29, and November 4, 2024, are reflected in the PSR 39 and the factual basis
signed by McKinley. 40 Therefore, given McKinley’s “consistent narcotics distribution
activities at 505 Ashlawn Street, the probation officer submits [that] the PSR
accurately assessed the two level enhancement for maintaining a drug premises.” 41
McKinley objects to this enhancement on the ground that he did not “maintain”
505 Ashlawn as contemplated by the Sentencing Guidelines. 42 He argues that the
evidence of the three controlled purchases reflect “at most, temporary influence” over
the location during “a limited number of drug distributions . . . at a residence that he
did not own, rent, or control, and that other individuals also used to buy, sell, and use
38 Id. at 29.
39 Id. ¶ 16.
40 	R. 	Doc. 	No. 	37 	(“factual 	basis”); 	see 	also 	id. 	at 	1 	(“To 	purchase 	the
methamphetamine from McKinley, the [confidential informant] would make contact
through a mobile phone and McKinley would direct the customer to com to his
location at 505 Ashlawn.”).
41 R. Doc. No. 44, at 29.
42 R. Doc. No. 42, at 13–14.
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controlled substances.” 43 He maintains that Fifth Circuit precedent requires more for
the enhancement to apply. 44
In response, the government argues that, despite McKinley focusing in his
objection on the 505 Ashlawn Street residence, the enhancement is equally applicable
if based on McKinley’s residence at 4919 Shrimpers Row. 45 According to the PSR,
McKinley used 505 Ashlawn Street to distribute narcotics and used “his residence”
at 4919 Shrimpers Row to store narcotics. 46 The PSR also states that “[f]rom early
2024 until his arrest for the instant offense, [McKinley] resided alone at 4919
Shrimpers Row, Houma, Louisiana.” 47
Likewise, in the factual basis, McKinley admits that he listed 4919 Shrimpers
Row as his residence with his probation officer. 48 As additional support that 4919
Shrimpers Row was McKinley’s primary residence, the PSR asserts that surveillance
of McKinley placed him at 4919 Shrimpers Row “during the night hours” and law
enforcement had “observed a vehicle associated with [McKinley] parked at the
residence.” 49 	The 	government 	also 	states 	in 	its 	opposition 	that 	“[w]hen 	law
enforcement executed the search warrant at 4919 Shrimpers Row, they gained entry
by using the key from defendant’s keychain seized from his person.” 50
43 Id. at 14–15.
44 Id. at 13.
45 See R. Doc. No. 49, at 5.
46 R. Doc. No. 44 ¶ 31.
47 Id. ¶ 70
48 R. Doc. No. 37, at 3.
49 R. Doc. No. 44 ¶ 19.
50 R. Doc. No. 49, at 7–8.
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As explained in the factual basis, found inside 4919 Shrimpers Row during
execution of the search warrant were the following:
approximately 1,814.3 grams of crack cocaine, 476.3 grams of heroin,
and three firearms, an Industria Nacional de Armas Model 2, .38 caliber
revolver, bearing serial number 006674, a Glock Model 19Gen5, 9
millimeter semiautomatic pistol, bearing serial number BVUF564, and
a Smith & Wesson Model M&P 9 Shield EZ, 9 millimeter semiautomatic
pistol, bearing serial number NET9794. Also located in 4919 Shrimpers
Row was a Keurig mixer, digital scales, and a Pyrex bowl with a white
substance residue suspected to be cocaine. 51
McKinley admitted in his factual basis that he possessed the substances found at
4919 Shrimpers Row “with intent to distribute” them. 52
The government submits that “this Court would not err in applying the
§ 2D1.1(b)(12) enhancement to [McKinley] based solely on his maintaining 4919
Shrimpers Row as the stash house location for his drug trafficking activities.” 53
Alternatively, 	the 	government 	agrees 	with 	the 	PSR 	that 	application 	of 	the
§ 2D1.1(b)(12) enhancement based on McKinley’s distributions at 505 Ashlawn Street
is permissible. 54
In his supplemental memorandum, McKinley points out that the PSR did not
base the enhancement on 4919 Shrimpers Row and, therefore, the government’s
arguments based on this residence go “beyond the findings in the PSR and should be
disregarded.” 55 Further, even had the PSR relied on 4919 Shrimpers Row, McKinley
51 R. Doc. No. 37, at 4.
52 See id.
53 R. Doc. No. 49, at 7.
54 Id. at 9.
55 R. Doc. No. 52, at 5.
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contends that the application does not apply because the presence of narcotics at his
residence does not establish that “drug trafficking constitutes a ‘primary or principal’
use of the premises.” 56 He also reiterates the arguments he made in his objection
regarding the 505 Ashlawn Street residence. 57
First, McKinley cites no support for his position that the government’s
argument with respect to 4919 Shrimpers Row should be disregarded merely because
it “goes beyond the findings in the PSR.” 58 The Court may impose an upward
enhancement where, as is true here, the defendant had knowledge of the facts
supporting the enhancement. Cf. United States v. Ramon, 615 F. App’x 235 (5th Cir.
2015) (holding no plain error where the district court sua sponte applied the
enhancement set forth in U.S.S.G. § 2D1.1(b)(12) because the defendant “had actual
knowledge of the facts upon which the district court based the enhancement under
§ 2D1.1(b)(12)” and, therefore, “the Guidelines themselves put defense counsel on
notice that all possible grounds for enhancement are on the table at a sentencing
hearing” (internal alterations and citations omitted)); United States v. Angeles-
Mendoza, 407 F.3d 742, 749 (5th Cir. 2005) (“[O]ur precedents . . . allow[] the court
sua sponte to impose upward enhancements where the defendant had no explicit
knowledge of the possibility of such an enhancement but was aware of its underlying
facts.”).
56 Id. at 5 (quoting § 2D1.1 cmt. n. 17).
57 See id. at 5–6.
58 See id. at 5.
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Consistent with Federal Rule of Criminal Procedure 32, McKinley was put on
notice that the enhancement in § 2D1.1(b)(12) may apply because it was raised in the
PSR, 59 and the facts upon which the government’s arguments in relation to 4919
Shrimpers Row rely are contained in the factual basis, which McKinley signed and
acknowledged as true. 60 The Court therefore finds that it may rely on either residence
to support an application of § 2D1.1(b)(12). See Ramon, 615 F. App’x at 236 (“[W]hile
‘the PSR is often conclusive, . . . final decision-making power must . . . reside with the
district court, and the court must have sufficient flexibility to deal with factors not
covered in the PSR or arising after its writing.’” (quoting United States v. Knight, 76
F.3d 86, 89 (5th Cir. 1996))).
McKinley 	does 	not 	dispute 	that 	he “maintained” 	the 	residence 	at 	4919
Shrimpers Row as articulated in § 2D1.1(b)(12). 61 The unobjected to evidence in the
record supports that he did. 62 See also § 2D1.1(b)(12) cmt. n. 17 (“[T]he court should
consider . . . (A) whether the defendant held a possessory interest in (e.g., owned or
rented) the premises and (B) the extent to which the defendant controlled access to,
or activities at, the premises.”); United States v. Wesley, 123 F.4th 423, 428 (5th Cir.
2024) (“This circuit’s applications of § 2D1.1 focus instead on access and control over
the premises, particularly unrestricted and exclusive access.”).
59 R. Doc. No. 44 ¶ 31; see also F ED. R. CRIM P. 32(d)(1)(A) (“The presentence report
must . . . identify all applicable guidelines and policy statements of the Sentencing
Commission.”).
60 See R. Doc. No. 49, at 7–9 (relying on McKinley’s acknowledgements in the factual
basis); see also R. Doc. No. 37 (signing every page of the factual basis).
61 See R. Doc. No. 52, at 5–6.
62 R. Doc. No. 44 ¶¶ 19, 31, 70.
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McKinley 	instead 	disputes 	that 	the 	“primary 	or 	principal” 	use 	of 	4919
Shrimpers Row was for “manufacturing or distributing a controlled substance.” 63
Rather, 	he 	contends 	that 	4919 	Shrimpers 	Row 	“primarily 	serves 	an 	ordinary
residential function and any drug activity is merely incidental.” 64 He asserts that the
government has failed to identify any “evidence that the location functioned as a base
of operations for trafficking, such as prior drug sales, repeated storage of distribution
quantities, or other ongoing drug activity at the property.” 65
Jurisprudence recognizes that “there can be more than one primary use of a
building for purposes of evaluating the enhancement.” United States v. Lopez, 750 F.
App’x 349, 351 (5th Cir. 2018); see also United States v. Gutierrez-Munoz, No. 21-
40903, 2022 WL 5102009, at *1 (5th Cir. Oct. 4, 2022) (Ҥ 2D1.1(b)(12) only requires
that one of the defendant’s primary or principal uses for the premises be drug
distribution.” (emphasis in original) (internal quotations omitted)). “The premises
need not be used exclusively for the manufacturing or distribution of a controlled
substance, but such drug activity must be a primary or principal use, rather than
merely an incidental or collateral use.” Lopez, 750 F. App’x at 351 (cleaned up).
The application note to the enhancement makes clear that it applies to a
defendant that maintains the property for “storage of a controlled substance for the
purpose of distribution.” § 2D1.1(b)(12) cmt. n. 17 (emphasis added); Le, 126 F.4th at
378. “A defendant’s additional use of a premises as a family home is not necessarily
63 R. Doc. No. 52, at 5.
64 Id.
65 Id.
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fatal to application of § 2D1.1(b)(12), so long as facts in the record support that
storage of the controlled substance was ‘one of the defendant’s primary or principal
uses for the premises.’” Id. at 352 (quoting 	United States v. Carrillo, 689 F. App’x
334, 335 (5th Cir. 2017)) (cleaned up); see also United States v. Galicia, 983 F.3d 842,
844 (5th Cir. 2020) (finding that the defendant’s “premises had at least two primary
uses: (1) as his residence, and (2) as a storage site for drug distribution. These primary
uses need not be equivalent. [The defendant] may have lived in the premises and
raised his family there for thirty-five years, but we agree with the district court that
the premises were eventually used on a continuing basis for the storage and
distribution of drugs.”).
In 	determining 	the 	primary 	or 	principal 	use, 	the 	court 	considers 	“how
frequently the premises was used by the defendant for manufacturing or distributing
a controlled substance and how frequently the premises was used by the defendant
for lawful purposes.” § 2D1.1(b)(12) cmt. n. 17. “The evidentiary bar for establishing
a primary use has not been set high.” Galicia, 983 F.3d at 844 (internal quotations
omitted).
With respect to 4919 Shrimpers Row, the Court finds that the evidence
supports application of the enhancement. Drugs, firearms, drug paraphernalia,
including a Keurig mixer, digital scales, and a Pyrex bowl with suspected cocaine
residue, were found during the execution of the search warrant. 66 McKinley admitted
in his factual basis that this “mixer, scale, and bowl, along with the illegal narcotics
66 See R. Doc. No. 44, at 7–8.
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being packaged in multiple clear plastic bags, is indicative of drug trafficking and the
defendant agrees he possessed this cocaine and fentanyl with intent to distribute
it.” 67 	On 	at 	least 	three 	occasions, 	a 	confidential 	informant 	purchased
methamphetamine from McKinley at 505 Ashlawn Street. 68
The Fifth Circuit has upheld a district court’s application of § 2D1.1(b)(12) in
comparable scenarios. See, e.g., Lopez, 750 F. App’x at 352 (affirming the district
court’s 	determination 	that 	drug 	distribution 	was 	a 	primary 	purpose 	of 	[the
defendant’s] residence “based on the paraphernalia, the digital scale, and the amount
of drugs found in various parts of the house and on the property”); United States v.
Castro, 159 F.4th 955, 960 (5th Cir. 2025) (finding sufficient for application of the
enhancement that the defendant stored drug proceeds at his residence, even where
there 	was 	no indication 	that 	drugs 	or drug 	paraphernalia 	was 	stored 	at the
residence); United States v. Fonseca, 834 F. App’x 75, 79 (5th Cir. 2020) (“[W]hile the
PSR does not identify the precise number of times that [the defendant] stored
narcotics at his residence, the PSR makes it clear—and the [defendant] admits—that
this was not the first time he had stored drugs [there].”).
Based on the foregoing, the Court finds that the evidence supports that one of
McKinley’s primary purposes for maintaining 4919 Shrimpers Row was to store
controlled substances for the purpose of distribution. Accordingly, application of
§ 2D1.1(b)(12) is proper. 69
67 R. Doc. No. 37, at 4.
68 R. Doc. No. 44 ¶ 16.
69 Having so decided, the Court need not reach the issue of whether McKinley
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III. 	CONCLUSION
Accordingly,
IT IS ORDERED that McKinley’s objections to the Presentence Investigation
Report are OVERRULED, consistent with the Court’s rulings herein.
New Orleans, Louisiana, April 1, 2026.
______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
sufficiently maintained 505 Ashlawn Street such that application of the enhancement
based on 505 Ashlawn Street is appropriate. However, the Court notes that the
evidence is consistent with a finding that McKinley exercised sufficient control over
505 Ashlawn to establish that he “maintained” the residence for purposes of the
enhancement. 	Cf. 	Wesley, 	123 	F.4th 	at 	428–29 	(“[The 	defendant] 	had 	a 	key,
distributed drugs alone from the home without the aid of others, and was seen using
the home multiple times. . . . In addition to possessing a key, [the defendant]
conducted drug deals at the [subject] home on June 17, 2022, June 22, 2022, and July
6, 2022, and was present nearby when law enforcement searched the residence on
June 18, 2022.” (internal quotations omitted)); see also R. Doc. No. 44 ¶ 16 (The
[confidential informant] . . . indicated he or she would contact the defendant through
a mobile phone and the defendant would direct the CI to his . . . location at 505
Ashlawn Street.”).
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