Submitted: September 26, 2019
Appeals from United States District Court for the Western
District of Arkansas - Ft. Smith
Before
GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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 21 U.S.C. §§
841(a)(1), (b)(1)(B)(viii) and 18 U.S.C. § 2, related to
his role in a methamphetamine distribution scheme in
Northwest Arkansas. The district court[1]sentenced Garcia
to 188 months imprisonment. Garcia appeals, asserting that
the district court erred by denying Garcia's motion for
retesting of drug quality and quantity and approval of
expenditures, as well as in imposing his sentence. Garcia
asserts the district court erroneously sentenced him as a
career offender, failed to apply a minimal role or minor
participant reduction, and imposed a sentence that was
substantively unreasonable. Having jurisdiction under 28
U.S.C. § 1291, we affirm.
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 stemmed from one controlled
buy with undercover officers. At sentencing, the district
court determined that the career offender sentencing
enhancement applied based on Garcia's previous
convictions, under Arkansas law, for aiding and abetting the
distribution of methamphetamine and for being an accomplice
to second-degree battery. The district court also determined
that Garcia was not entitled to a minimal role or minor
participant reduction and calculated Garcia's Guidelines
range at 188 to 235 months imprisonment. The district court
then imposed a bottom-of-the-Guidelines-range sentence of 188
months. This appeal follows.
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
interpretation and application of the guidelines."
United States v. Rice, 813 F.3d 704, 705 (8th Cir.
2016).
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 ...