United States of America v. Jose Alonso Garcia
No. 18-3040
United States Court of Appeals For the Eighth Circuit
December 26, 2019
Submitted: September 26, 2019
SHEPHERD, Circuit Judge.
Appellant Jose Garcia entered a conditional guilty plea to one count of aiding and abetting the distribution of five grams or more of methamphetamine, in violation of
I.
Following his involvement in a methamphetamine distribution scheme, including participation in a controlled buy with undercover officers, Garcia was indicted on one count of conspiracy to distribute methamphetamine and one count of aiding and abetting distribution of five grams or more of methamphetamine. Garcia challenged the results of the government’s subsequent testing of the seized methamphetamine, seeking both retesting of the drug quality and quantity and the approval of expenditures for these purposes. Garcia’s co-defendant, Jose Escalante, filed a similar motion seeking retesting. The district court denied both motions, concluding that no reasonable basis existed to question the results of the government’s testing. The only reason offered in the motions for retesting was a statement of the subjective belief of the defendants that the drug quality and quantity was incorrect and a vague reference to Escalante’s assertion in a prior hearing that, as a methamphetamine user who had tried the methamphetamine, he could tell that it was not as pure as the government’s testing revealed.
After the district court denied his motion for retesting and approval of expenditures, Garcia entered a guilty plea to the aiding and abetting count, which
II.
A.
Garcia first asserts that the district court erroneously denied his motion for retesting of drug quality and quantity and for approval of expenditures because the purity of the drugs was in question and the district court, at the very least, should have conducted an ex parte hearing on the motion. For the reasons we set forth today in United States v. Escalante, No. 18-3033, we conclude the district court did not abuse its discretion in denying this motion.
B.
Garcia next challenges the district court’s application of the career offender enhancement and the denial of a minor participant or minimal role reduction in calculating the offense level. As to the career offender designation, Garcia argues that his previous conviction for aiding and abetting distribution of methamphetamine is not a controlled substance offense and that his previous conviction for accomplice to second-degree battery is not a crime of violence so as to trigger application of the career offender sentencing enhancement. “We review de novo a district court’s
Under the United States Sentencing Guidelines § 4B1.1, a defendant is subject to a sentencing enhancement as a career offender if he has at least two previous felony convictions for either a crime of violence or a controlled substance offense. Garcia asserts that his previous aiding and abetting distribution of methamphetamine conviction is not a controlled substance offense because the Guidelines definition of controlled substance offense includes only the primary offense, not aiding and abetting the offense. Garcia asserts that classifying his prior conviction as a controlled substance offense requires impermissible reliance on Guidelines commentary to expand the definition. This argument is unpersuasive.
Section 4B1.2 defines controlled substance offense without reference to an aiding and abetting theory of liability. But Note 1 in the commentary to § 4B1.2 expressly states that the terms “‘[c]rime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offense.” USSG § 4B1.2 cmt. n.1. Despite Garcia’s assertion that this commentary language cannot be used to expand the definition in the text of § 4B1.2, our court has previously recognized that this commentary “is a reasonable interpretation of the career offender guidelines that is well within the Sentencing Commission’s statutory authority.” United States v. Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir. 1995) (en banc) (“Because [USSG § 4B1.2 cmt. n.1] interprets § 4B1.2 as including drug conspiracies, the district court properly determined that Mendoza-Figueroa should be sentenced as a career offender.”); see also United States v. Walterman, 343 F.3d 938, 941 n.3 (8th Cir. 2003) (“Sentencing guideline commentary is authoritative unless it violates the Constitution or is inconsistent with federal law.”). Given the foregoing, the district court did not err in considering Garcia’s previous conviction for aiding and abetting distribution of methamphetamine
Garcia also asserts that his conviction as an accomplice to second-degree battery under Arkansas law cannot qualify as a crime of violence for the purposes of the career offender enhancement because it does not have as an element “the use, attempted use, or threatened use of physical force,” as required by USSG § 4B1.2(a)’s force clause. Garcia was previously convicted of one count of being an accomplice to second-degree battery in violation of
The felony information underlying Garcia’s state conviction includes the following relevant language, alleging that “with the purpose of causing physical injury to another person, [the defendants] caused serious physical injury to any person . . . [by] str[iking] and kick[ing] another causing a fractured orbital socket and pallet.” This language tracks the essential language of
C.
Garcia next argues that the district court erred by failing to award him a minor participant or minimal role offense level reduction in calculating his Guidelines sentencing range, arguing that the evidence demonstrated that Garcia was less culpable than his co-defendant, Escalante, who was the true ringleader of the operation. “We review the district court’s refusal to grant a minor role adjustment for clear error.” United States v. Price, 542 F.3d 617, 622 (8th Cir. 2008).
Under § 3B1.2 of the Sentencing Guidelines, a defendant may be entitled to a two- to four-level reduction in offense level if the defendant “plays a part in committing the offense that makes him substantially less culpable than the average participant in the criminal activity.” USSG § 3B1.2 cmt. n.3(A). The Guidelines list five non-exhaustive factors to aid in this determination:
- the degree to which the defendant understood the scope and structure of the criminal activity;
- the degree to which the defendant participated in planning or organizing the criminal activity;
- the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;
the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; - the degree to which the defendant stood to benefit from the criminal activity.
USSG § 3B1.2 cmt. n.3(C). In applying these factors, the court engages in “a comparative analysis: each participant’s actions should be compared against the other participants, and each participant’s culpability should be evaluated in relation to the elements of the offense.” United States v. Salazar-Aleman, 741 F.3d 878, 880 (8th Cir. 2013) (internal quotation marks omitted).
The district court considered the Guidelines factors and compared Garcia’s conduct to Escalante’s by considering the factual circumstances surrounding the controlled buy that gave rise to Garcia’s offense of conviction. In doing so, the district court noted that Escalante seemed to “have had a little bit more involvement in the transaction,” but concluded that Garcia and Escalante played very similar roles and that “the relative culpability of these two individuals is fairly comparable.” R. Doc. 152, at 49. The district court further noted that Garcia clearly understood the nature of the transaction, was a passenger in the vehicle used during the transaction, knew there were drugs in the vehicle, received and handled the money obtained during the transaction, rode in the vehicle with Escalante to another location to retrieve more drugs, and benefitted financially from the transaction. Although the district court determined there was no evidence that Garcia participated in planning the transaction or exercised any decision-making authority, the district court determined that the other factors weighed against awarding the reduction, noting that “[j]ust because somebody is a lesser participant in a transaction, doesn’t necessarily mean that they are entitled to a mitigating role in the offense.” R. Doc. 152, at 49.
On this record, we find no clear error in the district court’s denial of the minor participant or minimal role reduction.
Finally, Garcia challenges the substantive reasonableness of his within-Guidelines-range sentence. “We review the substantive reasonableness of a sentence under a deferential abuse-of-discretion standard. . . . A sentence within the Guidelines range is accorded a presumption of substantive reasonableness on appeal.” United States v. St. Claire, 831 F.3d 1039, 1043 (8th Cir. 2016) (internal quotation marks omitted). Garcia argues that the district court erred in considering the
III.
For the foregoing reasons, we affirm.