                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3040
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                 Jose Alonso Garcia

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeals from United States District Court
                  for the Western District of Arkansas - Ft. Smith
                                  ____________

                          Submitted: September 26, 2019
                            Filed: December 26, 2019
                                 ____________

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 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


      1
       The Honorable P.K. Holmes, III, United States District Judge 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-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



                                         -3-
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 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



                                          -4-
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 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 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 orbital socket and pallet.”
This language tracks the essential language of Ark. Code Ann. § 5-13-202(a)(1),
which provides that: “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).

                                           -5-
       Garcia finally asserts that his conviction for being an accomplice to second-
degree 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’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:

      (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;



                                          -6-
      (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 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.

                                         -7-
                                           D.

       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 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 Guidelines range 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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