United States Court of Appeals

For the Eighth Circuit

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No. 18-3040

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 United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Jose Alonso Garcia

lllllllllllllllllllllDefendant - Appellant

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Appeals from United States District Court

for the Western District of Arkansas - Ft. Smith

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 Submitted: September 26, 2019

Filed: December 26, 2019

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 Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

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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 court1

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

1The Honorable P.K. Holmes, III, United States DistrictJudge for the Western

District of Arkansas.

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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-theGuidelines-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

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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 issubject

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 assertsthat 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 MendozaFigueroa 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 unlessit violatesthe 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 ofmethamphetamine

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as a controlled substance offense for the purposes of the career offender sentencing

enhancement.

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 physicalforce,” asrequired byUSSG § 4B1.2(a)’s

force clause. Garcia was previously convicted of one count of being an accomplice

to second-degree battery in violation of Ark. Code Ann. § 5-13-202(a). We have

previously held that Ark. Code Ann. § 5-13-202(a) is not categorically a crime of

violence, United States v. Dawn, 685 F.3d 790, 795 (8th Cir. 2012), and that the

statute is divisible, necessitating application of the modified categorical approach to

determine whether a conviction under this statute is a crime of violence. Rice, 813

F.3d at 705. “Under that approach, the court may look at certain documents to

determine for which crime the defendant actually pleaded guilty. We then determine

whether violent force was a necessary element of that crime.” Kelly v. United States,

819 F.3d 1044, 1048 (8th Cir. 2016) (citations omitted).

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 orbitalsocket and pallet.” 

This language tracks the essential language of Ark. Code Ann. § 5-13-202(a)(1),

which providesthat: “A person commits battery in the second degree if . . . [w]ith the

purpose of causing physical injury to another person, the person causes serious

physical injury to another person.” We are satisfied that the record of conviction

demonstrates Garcia was convicted for a violation of Ark. Code Ann. § 5-13-

202(a)(1), which includes as an element the use of physical force, i.e., “force capable

of causing physical pain or injury to another person.” Johnson v. United States, 559

U.S. 133, 140 (2010).

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Garcia finally asserts that his conviction for being an accomplice to seconddegree battery is not a crime of violence because accomplice liability is not included

in § 4B1.2’s definition of crime of violence, necessitating reliance on the commentary

Note 1 to encompass accomplice liability within § 4B1.2. For the same reasons we

reject this argument with respect to his state controlled substance conviction, we

reject this argument with respect to Garcia’s state battery conviction. The district

court did not err in finding Garcia’s prior conviction for accomplice to second-degree

battery to be a crime of violence for the purposes of the career offender enhancement.

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’srefusal 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:

(i) the degree to which the defendant understood the scope and

structure of the criminal activity;

(ii) the degree to which the defendant participated in planning or

organizing the criminal activity;

(iii) the degree to which the defendant exercised decision-making

authority or influenced the exercise of decision-making authority;

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(iv) 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;

(v) 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 actionsshould 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.

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D.

Finally, Garcia challenges the substantive reasonableness of his withinGuidelines-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 18 U.S.C.

§ 3553(a) sentencing factors, primarily asserting that he should have received a lesser

sentence in comparison to his co-defendant, Escalante, who was the apparent

ringleader of the operation and received a sentence only 12 months longer than

Garcia. Garcia’s Guidelinesrange called for a sentence between 188 and 212 months

imprisonment; the district court’s imposition of a 188-month sentence is thus

presumptively reasonable. And a district court has “wide latitude” to weigh the

§ 3553(a) factors and to “assign some factors greater weight than others.” United

States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009). Here, the sentencing transcript

reflects that the district court placed more weight on the nature and circumstances of

the offense than on other factors. The district court seriously considered the

mitigating factors Garcia presented, including his family history, and reviewed at

least one letter that was submitted on Garcia’s behalf. However, when weighed

against the fact that the drug transaction took place in a public area and put the public

at risk, the district court determined that a bottom-of-the-Guidelines-range sentence

was warranted. The district court’s weighing of the § 3553(a) factors was

appropriate, regardless of the sentence Garcia’s co-defendant received. The district

court did not impose a substantively unreasonable sentence. 

III.

For the foregoing reasons, we affirm.

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