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 2020-07

United States v. Preston Baxter ( 2020 )


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  •                  United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2389
___________________________
United States of America
Plaintiff - Appellee
v.
Preston Baxter
Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
____________
Submitted: April 14, 2020
Filed: July 29, 2020
[Unpublished]
____________
Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
____________
PER CURIAM.
Preston Baxter, who pleaded guilty to conspiring to distribute a controlled
substance, 21 U.S.C. §§ 841(a)(1), 846, appeals his classification as a career
offender and the district court’s 1 refusal to give him a minor-role reduction. We
affirm.
Baxter’s primary argument is that he cannot be a career offender because his
“instant offense of conviction”—conspiracy to distribute a controlled substance—is
not a “controlled substance offense.” U.S.S.G. § 4B1.1(a). A “controlled substance
offense” includes “distribution,”
    id. § 4B1.2(b), and 
    the commentary makes clear
that it covers conspiracies too
    , id. § 4B1.2, cmt. 
    n.1. We are once again asked to
disregard the commentary, and bound by circuit precedent, we once more decline to
do so. E.g., United States v. Garcia,
    946 F.3d 413
    , 417 (8th Cir. 2019); United States
v. Merritt,
    934 F.3d 809
    , 811 (8th Cir. 2019); United States v. Mendoza-Figueroa,
    65 F.3d 691
    , 693 (8th Cir. 1995) (en banc).
As a career offender, Baxter cannot prevail on his argument that he should
have received a minor-role adjustment either. See U.S.S.G. § 3B1.2. As we have
previously explained, “[t]he offense level reductions . . . for a mitigating role in the
offense simply do not apply in the career offender context.” 2 United States v.
Beltran,
    122 F.3d 1156
    , 1160 (8th Cir. 1997).
We accordingly affirm the judgment of the district court.
______________________________
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
2
The government failed to raise this point. Even so, there is no doubt that this
straightforward rule applies, and “we may affirm on any ground supported by the
record.” United States v. Garrido,
    995 F.2d 808
    , 813 (8th Cir. 1993); see Brown v.
St. Louis Police Dep’t,
    691 F.2d 393
    , 396–97 (8th Cir. 1982) (discussing our
discretion to “affirm on any ground supported by the record even if the issue was
not pleaded, tried, or otherwise referred to in the proceedings below”).
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