Dissenting C.A.D.C. Judge Brown Describes Circuit Split Re Sentencing Guidelines for "Renting or Managing a Drug Establishment"

Per In re Sealed Case, 552 F.3d 841 (D.C. Cir. Jan 16, 2009) (Brown, J., dissenting):

However, under the plain error standard that should be applied here, Appellant loses; this court has never resolved whether § 2D1.8(a)(2) sets the base offense level or is a mitigation provision, and in fact, as the majority observes but fails fully to credit, there is a circuit split on this very question. Compare United States v. Dickerson, 195 F.3d 1183, 1189-90 (10th Cir.1999) (holding burden is on the defendant to show applicability of § 2D1.8(a)(2)) and United States v. Leasure, 319 F.3d 1092, 1098 (9th Cir.2003) (holding burden is on the government to show participation under § 2D1.8(a)(1)). Indeed, it is not surprising that there is a circuit split, because § 2D1.8(a)'s legal character is by no means obvious. Thus even assuming error, we should affirm because the district court did not "fail[ ] to follow an absolutely clear legal norm." United States v. Andrews, 532 F.3d 900, 909 (D.C.Cir.2008).