Submitted: September 26, 2019
Appeals from United States District Court for the Western
District of Arkansas - Ft. Smith
GRUENDER, BENTON, SHEPHERD, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE
Escalante entered a conditional guilty plea to one count of
distribution of 50 grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(viii), related to his role in a methamphetamine
distribution scheme in Northwest Arkansas. Prior to his
guilty plea, the district court denied Escalante's motion
for retesting of drug quality and quantity and approval of
expenditures. Escalante then entered a guilty plea and the
district court sentenced him to 200 months imprisonment.
Escalante appeals, asserting that the district court erred by
denying his motion for retesting of drug quality and quantity
and approval of expenditures, as well as in imposing a
substantively unreasonable sentence. Having jurisdiction
under 28 U.S.C. § 1291, we affirm.
first asserts that the district court erroneously denied his
motion for retesting of drug quality and quantity and for
approval of expenditures. Escalante filed a motion
challenging the results of the government's testing of
the seized methamphetamine, arguing that it was not as pure
as the testing revealed. Escalante's co-defendant, Jose
Garcia, filed a similar motion. The district court denied
both motions, concluding that no reasonable basis existed to
question the results of the government's testing when the
motions were based on subjective statements about the drug
purity. Escalante challenges this decision, asserting that he
had articulated to the district court his firsthand knowledge
of the purity of the methamphetamine as a drug user who had
tried the drugs and that this formed a reasonable basis for
his motion. Escalante also argues that, at the very least,
the district court should have held an ex parte proceeding on
review a district court's decision to deny an application
to fund an expert witness for an abuse of discretion, and we
will not reverse unless prejudice is shown." United
States v. Bertling, 370 F.3d 818, 820 (8th Cir. 2004)
(internal citation omitted).
18 U.S.C. § 3006A(e)(1),
[c]ounsel for a person who is financially unable to obtain
investigative, expert, or other services necessary for
adequate representation may request them in an ex parte
application. Upon finding, after appropriate inquiry in an ex
parte proceeding, that the services are necessary and that
the person is financially unable to obtain them, the court .
. . shall authorize counsel to obtain the services.
defendant has the burden of showing that the [services are]
necessary." Bertling, 370 F.3d at 819. "In
analyzing a claim that § 3006A(e)(1) was violated, we
consider whether [the defendant] demonstrated a reasonable
probability that the requested [service] would aid in his
defense and that denial of the funding would result in an
unfair trial." United States v. Thurmon, 413
F.3d 752, 755 (8th Cir. 2005) (internal quotation marks
the statute does not require an actual hearing, it does
require that the court conduct ex parte proceedings.
Bertling, 370 F.3d at 820. Here, the district court
did not conduct an ex parte proceeding on Escalante's or
Garcia's motion, but even assuming this was erroneous, it
did not prejudice Escalante. See United States v.
Bercier, 848 F.2d 917, 919-20 (8th Cir. 1988) (finding
no prejudice warranting reversal even where district court
did not hold statutorily required ex parte proceeding
regarding § 3006A(e)(1) application for expert
services). Escalante's motion was based entirely on his
subjective belief that the stated drug purity was incorrect,
evidently formed from his first-hand knowledge as an admitted
methamphetamine user who had tried the drugs. Given that
"a trial court need not authorize an expenditure under
subdivision (e) for a mere 'fishing expedition,
'" there was no prejudice to Escalante's case
where the motion did not set forth an adequate basis-such as
claims of issues with chain of custody or previous issues of
reliability with the lab that performed the testing-to
suggest that the lab test results were inaccurate. United
States v. Schultz, 431 F.2d 907, 911 (8th Cir. 1970).
Escalante has not shown a reasonable probability that
retesting would have aided in his defense and that the denial
of retesting resulted in an unfair trial. Indeed, as the
district court noted,
[t]he difference between the DEA results and what the
retesting results would have to be before retesting would aid
in defense or be necessary for a fair trial is so profound
that some other basis than Defendant's conclusory
disagreement is necessary before the Court will appoint an
expert and authorize funds.
R. Doc. 83, at 4. We affirm the district court's denial
of the motion.
next challenges the substantive reasonableness of his
below-Guidelines-range sentence, arguing that the district
court erred in its weighing of the 18 U.S.C. § 3553(a)
sentencing factors. "We review the substantive
reasonableness of a sentence under a deferential
abuse-of-discretion standard." United States v. St.
Claire, 831 F.3d 1039, 1043 (8th Cir. 2016) (internal
quotation marks omitted). "[W]here a district court has
sentenced a defendant below the advisory guidelines range, it
is nearly inconceivable that the court abused its discretion
in not varying ...